Sexual Harassment And The Law: Reading Into Meesha Shafi And Ali Zafar Case
Yasser Latif Hamdani in this article discusses how Ali Zafar’s lawyers milked the case for their own fame. “#Metoo is not going anywhere regardless of the outcome of the defamation case which itself is more damaging to Zafar”, he says.
As more women join the workforce one of the most contested issues in the next 50 years is going to be sexual harassment around the world. The jurisprudence on this is evolving and the principles have not been entirely laid down in any kind of finality.
One must appreciate Kashmala Tariq, former legislator and a lawyer, who heads the Federal Ombudsman and is making efforts that need to be lauded by those who follow the developments in this area. There are jurisdiction questions that need to be resolved. On this issue, briefly, my view is that the Supreme Court’s judgments when read with CEDAW make it clear that the Federal Ombudsman has concurrent jurisdiction with Provincial Ombudsmen but I will spare the reader long legalese and constitutional argument through which one concludes this.
Suffice to say, Federal Ombudsman has very wide ranging jurisdiction to uphold minimum standards including oversight into any cases of harassment without any regard of technical questions of what constitutes a workplace. Ombudsmen generally are institutions of equity not common law unlike the courts. That makes all the difference.
More pressing is the case that has been highlighted in media at times irresponsibly vis a vis Ali Zafar and Meesha Shafi. It has opened a Pandora’s Box of questions about the standard of proof and liability. Much debate has gone into motives, slander, libel and defamation of all kinds. Great responsibility rested on the shoulders of Zafar’s lawyers and advisors in ensuring that the matter was resolved with least possible damage but they seem to have entirely forfeited that responsibility.
Here is the basic point. Sexual harassment is – as it should be – entirely dependent on the point of view of the victim of harassment. A great deal of responsibility therefore lies in those who have an upper hand in the power equation to conduct themselves in a way that they do not open themselves up to the accusation of harassment.
Ali Zafar’s first response – if he had been guided by a lawyer somewhat familiar with the international trends in jurisprudence on this subject – should have been to offer himself up to a free and impartial inquiry to the satisfaction of the counter party.
If I were advising Zafar, I would have asked him to write to Shafi to come with her legal representation and hammer out what it was precisely that she was accusing him of. If there was anything in his conduct that may have been construed by Shafi as harassment, he should have shown contrition and apologized unconditionally with any necessary clarification that it was not his intention.
Such contrition would have taken the power out of the equation for ultimately any human being can make mistakes. He could have provided his explanation for any such conduct and that really would have been the end of the matter. It would have spared them both the tamasha which really is entertainment for everyone else but must surely have taken its toll on both parties.
This is if the lawyers in question would have been responsible. Instead it seems that Zafar’s lawyers at least were more interested in milking it for their own fame. It meant media appearances and traction. That it made them look like fools and brought the profession of advocacy into disrepute is a consideration that did not occur to them.
Even a victory in the defamation case and Zafar’s myriad media performances will not undo the damage that was done to him as a result of this episode. This is because so far no one, not Zafar and certainly not his lawyers, have been able to explain why Shafi would accuse him out of the blue. It certainly was not for personal fame, which Shafi already had. Nor are the two singers directly in competition with each other because that is not how the music business works.
The only conclusion that any reasonable person can impartially draw is that she is telling the truth to the extent that there must have been something in Zafar’s conduct that led her to feel harassed. Her feeling of being harassed is res ipsa loquitur, which means that the thing speaks for itself.
The question really should be whether this was intentional or unintentional on part of Zafar and the best way to prove his bona fides was not by engaging in protracted litigation to no end. It was through a candid but without prejudice discussion between the two parties in presence of their legal advisors. No one advised Zafar accordingly and instead it became an ego match for his lawyers. Resultantly Zafar is hoist with his own petard.
The problem with the practice of law in Pakistan is that lawyers often act as if they were mercenary swordsmen willing to do battle at will because litigation is war. Litigation may be war but it should always be the last resort. There is much by the way of interrogatories that can be done by lawyers to keep matters out of court to be settled to the mutual satisfaction of both parties.
Lawyers should see themselves as advisors providing counsel rather than doing battle. The ethical duty to the client includes looking after his best interests and at times saving him from his own anger and ego. Clients come to lawyers to resolve their problems not aggravate them. This aggravation often leads to profound distrust that public have for lawyers and the legal system.
#Metoo is not going anywhere regardless of the outcome of the defamation case which itself is more damaging to Zafar. What is required however is that lawyers manage these sensitive cases in a way that they don’t become media circuses. Will the lawyers be willing to listen? My experience of more than a decade in the field of law makes me less than optimistic.