Was the Accused Horny? Unpacking the FCC’s Judgement on Workplace Harassment Law
Editor’s Note: To provide a background context to our general readers, this piece deals with the recent Federal Constitutional Court’s verdict in case of Nadia Sarwar, an employee of National Bank of Pakistan (NBP), against two male colleagues, Usman Shahid and Aqeel Abbas, in 2012. In 2013, the Ombudsman decided in her favor, but the penalty was later modified by the President. Ms. Sarwar challenged the order before Islamabad High Court and in 2024, IHC, restored the Ombudsman’s judgement. The matter then went before the FCC and it issued its verdict about which the legal and constitutional experts warn will have serious implications not just for both men and women at workplaces, but also on constitutional protections and the right of review of what are considered statutory decisions. Here, Nida Usman presents her well articulated arguments how this will have its serious implications for workplace dignity and safety for all.
FCC’s Reversion to Determining Workplace Harassment based on the Accused’s Arousal as Opposed to Constitutional Principles of Safety & Dignity at the Workplace – A Critical Appraisal
by Nida Usman Chaudhary
On 28th September 2026, the Federal Constitutional Court (FCC) of Pakistan delivered a judgement on a case involving the Protection against Harassment of Women at the Workplace Act 2010.[1] The petitions were filed by the two accused, under Article 175-F (1) (c) of the Constitution of Pakistan, 1973, against the judgement of the Islamabad High Court that had set aside an earlier order of the President in this matter and had restored the ruling of the Federal Ombudsperson under the 2010 Act and maintained the major penalty of compulsory retirement imposed by the Ombudsperson, which the accused had now challenged before the FCC. This gave the FCC its basis to review settled principles of law in such matters and relying further on their power under Article 189 of the Constitution as per which the FCC is not bound by precedents of the Supreme Court of Pakistan, the court proceeded to deliver its own verdict about what the law ought to be; never mind the legislative and judicial developments, and the evolving understanding of power dynamics and workplace safety and dignity the world over, including in Pakistan.
In doing so, the FCC set aside the Islamabad High Court judgement that upheld the penalty of compulsory retirement and instead reinstated the minor penalty of censure that the President had ordered. It got there by treating the statutory decision of the President as if it were a constitutional power immune from review – a conclusion that was neither the intent of the legislature, nor an argument raised by the petitioners. In fact, their lawyers had clarified that the review of the President’s order was under Section 9 of the 2010 Act as opposed to a review over any constitutional power of the President. Despite this, the FCC proceeded to rely on Articles 45 and 48 (2) of the Constitution of Pakistan 1973m which deals with President’s power to grant pardon and to act on the advice, although, none of this was the issue in the case before them. No one was asking for a pardon.
The FCC also appeared to contradict its own authorities. In para 16 the FCC accepted that Muhammad Tariq Pirzada ‘rightly held’ that the President’s orders in quasi-judicial matters are ‘subject to some judicial review.’[2] It then reached the opposite result without explaining the difference. It also leaned on Nawaz Sharif for the point that the President has only the powers the Constitution gives him.[3] If anything, that undercuts the claim that a statutory power acquires constitutional immunity.
In addition to that, Order XXVII-A of the Civil Procedure Code 1908 requires that notices be issued to the Attorney General in any suit in which it appears to the court that any substantial question as to the interpretation of constitutional law is involved. It bars the court from proceeding to determine the question until after notice has been given to the concerned AG.[4] In this case, the FCC proceeded to determine the question of the applicability of the President’s power and immunity under the constitution without complying with the requirements of Order XXVII-A of the CPC 1908. This was a critical omission, one that goes to the heart of the legitimacy of the entire proceedings and raises questions about due process of the law in this case.
Since the FCC adopted the Supreme Court Rules 2025 for reviews, the time limit is usually short, often a review must be filed within thirty days so the government must consider filing the review at earliest before the FCC on grounds that errors appear on the record such as applying Articles 45 and 48(2) to statutory power of President thereby elevating its status which will impact not just matters of workplace harassment but could shield other Presidential reviews of Ombudspersons decisions as well such as in matters related to tax, banking, insurance etc. This could weaken accountability across the board. Another ground for review is that reliance was placed by FCC on an overruled judgement (Nadia Naz case from 2021) which is a critical oversight.[5] A larger bench could settle the question that FCC judgement has muddled i.e. whether statutory orders (such as the ones under Section 9 of 2010 Act) are reviewable, after ensuring that the federation is represented in the matter and the notices as required are duly issued to the AG.
It is also interesting to observe how the FCC did not only not issue notices to the AG but also how it overlooked the Federation’s perspective on this law that came forward when the Federation itself filed for a review of the 2021 Nadia Naz judgement of the Supreme Court that subscribed to a very narrow interpretation of workplace harassment and relegated it so one that is only ‘sexual’ in nature.[6] This was contested by the AG when he filed for its review under Civil Review Petition No 570 of 2021.[7] This was because the Federation did not agree with the narrow interpretation of its law adopted by the then Supreme Court, hence had filed for review. The review judgement came in 2023.[8] It was a unanimous judgement when all three judges agreed to overturn the 2021 narrow interpretation of the law and which construed the definition of workplace harassment under Section 2(h) of the 2010 Act to encompass gender-based discrimination as part of sexually demeaning attitudes causing interference with work performance or creating a hostile, threatening or intimidating environment at the workplace. The FCC made no reference to this review judgement and instead only refers to the original narrow interpretation of harassment adopted in the 2021 judgement.[9] By not referring at all to the fact that 2021 case was overturned in a later case and instead jumping to disagree with two separate subsequent Supreme Court cases, Raja Tanveer[10] and Muhammad Din[11], the FCC appears to have made a significant oversight which cannot be ignored because of its implications on the accuracy of the legal position that FCC aims to support and resurrect.
What the FCC has in fact done is that it has adopted an outdated understanding of the law, interpreted constitutional questions without hearing the Federation and without discussing the 2023 Nadia Naz Review in which the Federation’s own perspective on this law goes against what the FCC has resurrected. Thus, the FCC’s judgement in Usman Shahid v Nadia Sarwar[12] appears to be rendered without due process and without comprehensive legal analysis and so has all the markings of being per incuriam i.e. in error of law.
At no point does the FCC attempt to offer any legal analysis or rationale for disagreeing with the subsequent Supreme Court rulings or for taking the law back to its primitive days. It sets aside Raja Tanveer Safdar[13] and Muhammad Din[14] in one line, relying only on Article 189 of the constitution. It gives none of the considerations for departing from precedent that the FCC itself listed in Salma Raza case: the error’s nature, quality of reasoning, workability, and disruption.[15]
Ironically, in Para 13, the FCC did try and place the responsibility on the legislature by stating that had the legislature intended to make the definition of sexual harassment exhaustive or equivalent to mere harassment, it would be evident in the Act itself – which is exactly what the legislature eventually did when it passed the amendments to the 2010 Act in the year 2022.[16] Also, by filing for the Nadia Naz Review,[17] the Federation had made its intention clear even back then that it does not support the narrow framing of harassment or limiting it to only ‘sexual’ in nature. What more proof of intention from the legislature did FCC require, is not clear.
The more frightening aspect of the FCC’s judgement is in the way it adds to the evidentiary burden of the complainants by requiring impartial credible material reinforced by convincing or ‘independent’ evidence. This has the effect of importing criminal-trial standard into a civil, remedial process which is not even a requirement of the 2010 Act. It goes beyond the law to increase the evidentiary burden and is reminiscent of the draconian Hudood Ordinance days when four credible male witnesses had to be produced by a victim to establish rape.[18]
By overlooking Nadia Naz review judgement,[19] the FCC also failed to benefit from the perspective of the ability of male victims to file complaints under this law which was considered in depth by the Supreme Court in 2023 and which became one of the basis for them overturning their decision in this case in the first place. In the Nadia Naz review of 2023, Justice Ayesha A. Malik said in Para 4:
“The Act is not restricted to female victims, as the word employee defined in Section 2(f) of the Act means any regular or contractual employee and does not simply state women employees. Furthermore, complainant defined in Section 2(e) under the Act means a woman or man who has made a complaint. Hence, the Act recognizes that harassment is gender-based and that the victim can be a man or a woman. The impugned judgment overlooked the inclusion of men in the definition of complainant which is relevant when seen in the context of the protection given to employees under the Act. If the present definition of harassment, as given in the judgment under review is considered, its application on employees and complainants who are not women becomes questionable and its applicability may become redundant. We find that this aspect of the matter was not considered in the judgment under review as its interpretation of harassment has rendered the Act ineffective for employees or complainants who are not women. This error is so manifest and evident that it cannot be ignored.”[20]
Thus, FCC appears to have gone back to this error in its latest judgement making application of this law questionable and redundant for men as victims. By that same logic, where female victims face female supervisors and employers, the FCC’s interpretation will not be able to provide a cause of action unless there was sexual harassment by the woman against the woman.
Likewise, even though the FCC states that workplace harassment is actionable only when ‘sexual’ in nature but it never applies its narrow test to the facts before it to determine whether on facts the acts complained of were or were not sexual harassment. These acts included amongst others, use of obscene words, a sketch of a woman, retaliatory appraisals, which are likely to come under ‘sexual’ conduct on any reading and yet the FCC did not engage, explore or apply its own definition to the facts before it. The disposition in Para 18 of the FCC judgement,[21] setting aside the Islamabad High Court order rests only on the President’s immunity under Article 48 of the constitution and on the FCCs power dynamic vis a vis the Supreme Court and its ability to bind them under Article 189 of the constitution. It seems like for every issue the FCC just made statements without engaging with any of them or offering any appropriate legal reasoning for its conclusions, as if in a bid to superimpose its own view without engaging with the ‘why’ of it.
It is important to state that the FCC judgement would only have limited application to cases prior to the 2022 amendments in the Federal law. Post 2022, cases are likely to be dealt with in accordance with the Federal law as amended in 2022 which expressly covered gender-based discrimination which may or may not be sexual in nature.[22] However, provinces except Sindh that have passed the 2010 law, have yet to amend it in line with the 2022 amendments and therefore, the FCC judgement may impact the application and understanding of this law in Punjab, KP and Balochistan by taking it back to the narrow and outdated version of understanding of workplace harassment. The Provinces must therefore, consider updating their laws to address this issue.
For the law and for women at work this verdict has serious implications:
Firstly, in 2010, the Parliament created a specialist forum for such matters but it appears via this judgement that the Ombudsperson’s orders could become vulnerable to executive scrutiny with minimal judicial safeguards at play due to the presidential immunity argument, because if the President can cut the penalty awarded by the Ombudsperson to a censure with minimal judicial scrutiny, the practical last word on harassment moves from an adjudicator to the executive.
Secondly, this decision sends a dangerous message to women when it comes to impunity at the workplace for such actions. Not only are they required to submit additional and independent evidentiary burden, but the FCC judgement, may also reduce reporting of such incidents making workplaces less safe. The complainant pursued this for thirteen years and ultimately lost. FCC requiring independent corroboration and treating ‘multifarious’ allegations with suspicion, makes future complaints harder to bring and to prove. Having spend thirteen years in the system to get finality of order in this matter and still walking away with the reduced penalty of censure being reinstated and with no real accountability really tells other managers that the likely cost of abusing authority and this law is low. This can make workplaces more unsafe.
Thirdly, it promotes and supports outdated understanding of the law that does not exist as it had been overturned in 2023, however, the FCC never addresses that review judgement which overturned the case that they actually relied on from 2021. It encourages a narrow reading, especially paras 12-13 invite courts and ombudspersons to reject gender-based hostility, sabotage and humiliation unless it is overtly sexual. That is the kind of conduct Parliament specially aimed to address and cover in the 2022 amendments and which the Supreme Court also recognised in Nadia Naz review 2023, Raja Tanveer Safdar and Muhammad Din. In fact, Muhammad Din described harassment as ‘less about sexual desire and more about control and domination’ while Raja Tanveer situated workplace safety as being inherent in the very dignity and inviolability of persons under Article 14 of the constitution;[23] but the FCC dismissed this in only one sentence saying it disagrees with them without offering further insights as to why, simply on the basis of its power under Article 189 of the constitution which says that FCC won’t be bound by precedents of the Supreme Court.[24]
Fourthly, its framing is paternalistic. The Act is described as protecting women’s ‘honour, modesty and respect,’ and the FCC warns against ‘special or preferred treatment’ in para 13. This frames harassment as a threat to ‘honour’ rather than a violation of constitutional rights and fundamental principles of ‘equality’ and ‘dignity’. It also implies complainants seek an advantage over men. This even goes against Pakistan’s obligations under CEDAW, Article 11 and General Recommendations 19 and 35 of which state that workplace sexual harassment is gender-based violence and discrimination. States must provide effective remedies and avoid stereotypes such as ‘honour’ and ‘modesty’ in adjudication.
In such cases, where the question the courts should be focused on whether or not harassment occurred, the FCC judgement will force the courts to rather focus on the nature of the harassment i.e. whether it was sexual or not. This shifts the focus away from the act that the victim experienced, to the biology of the accused, which should not be the concern or focus.
Women’s safety at the workplace should not be limited to cases where the accused exhibits a sexual desire, especially when the preamble of the 2010 Act, its statement of objects and reasons as well as the evolving jurisprudence and global trends and the federation’s/legislature’s own perspective have moved away from the narrow lens of limiting the law to sexual harassment only.
In times when women are demanding that workplaces be free from gender-based discrimination and the Parliament and Supreme Court are saying fair enough to that; the FCC appears to have unhelpfully reverted to asking: but was the accused horny?
Nida Usman Chaudhary holds LL.B Hons and LL.M in Law and Development from University of London. She is a diversity & inclusion advocate and founder of Women in Law Initiative Pakistan. She can be reached at nida@learnpak.com.pk.
