How the FCC is rolling back decades of progress through regressive jurisprudence

There is not a single woman judge on the Federal Constitutional Court. It is a court composed entirely of men.

At the time of the 27th Amendment, various unconvincing justifications were presented: the amendments would reduce pendency of cases; “activist” judges had brought these changes upon themselves; the FCC would hear important cases of constitutional interpretation that consumed too much of the Supreme Court’s time. But it was clear then, and it is clear now. The courts were being stripped of their independence. This threatens far more than political cases. Once judicial independence is destroyed, no fundamental right is insulated from the consequences.

Decades of legal advocacy have sought to strengthen protections for women. Regressive jurisprudence is undoing that work. The roll back of hard-won protections for women should concern everyone. Protections that took years to build are being dismantled.

In its latest judgment, the FCC has restricted the scope of the workplace harassment law. The judgment was authored by Justice Ali Baqir Najafi. Justice Najafi is the same judge that wrote an additional note in Noor Mukadam’s case stating that the murder is a result of a “living [sic] relationships”, and that “the young generation must note its horrible consequences”.

A judge who brought victim-blaming reasoning into the judicial treatment of a brutal murder has now authored a judgment that restricts the protections available under the workplace harassment law.

Restricting the definition of ‘harassment’

The FCC has adopted an interpretation of the workplace harassment law that undoes its very purpose. The FCC has held that only harassment that is “sexual in nature” is covered. The immediate consequence is that unless it can be shown that the conduct had a sexual element, it falls outside the protection of the law. This interpretation removes an important category of protection expressly included by parliament. The definition of harassment includes “sexually demeaning attitudes” when it interferes with work performance or creates an intimidating, hostile or offensive work environment.

By reducing harassment to conduct that is “sexual in nature”, a wide range of gender-based abuse is placed outside the protection of the law. Humiliation, degrading treatment, intimidation, and a hostile work environment will no longer be recognised as harassment unless a sexual element can first be established.

Justice Ayesha Malik previously held that reducing harassment to conduct that is sexual in nature........

© Dawn Prism