08/10/2026
The court that could not see
Justice (retd) Syed Mansoor Ali Shah
The writer is a former senior puisne judge of the Supreme Court of Pakistan. He holds the Distinguished Chair in Constitutionalism & Justice at the Shaikh Ahmad Hassan School of Law, Lums, and is currently a Distinguished Visiting Fellow at Yale University.
WITNESSES testified that a senior banker sketched private parts on the glass of his desk, asked a woman colleague to name them, and threatened to tear off her clothes if she wore a particular outfit again. Another officer made indecent remarks about her attire before colleagues. The ombudsperson found the charges proved; the Islamabad High Court agreed.
On Sept 16, the Federal Constitutional Court (FCC) set that judgement aside without substantively engaging with this evidence or the high court’s careful appraisal of it.
Its central reason was a definition. Harassment under the 2010 workplace harassment law, it declared, “is only restricted to conduct which is s*xual in nature”. Even by that narrow test, the conduct proved was plainly s*xual. Before the high court, the officers never contended it fell short of harassment.
The Act’s title and preamble speak of ‘harassment’, not ‘s*xual harassment’, and anchor it in the right to dignity. Nor does ‘s*xual’ mean only the act of s*x; it also means relating to the s*xes, or to gender.
The Supreme Court said so on review in Nadia Naz, through Justice Ayesha Malik; “s*xually demeaning attitudes” means demeaning a person because of their s*x. Yale’s Vicki Schultz has shown that much workplace harassment has nothing to do with desire; it belittles women and signals they do not belong. And the 2022 amendment, ignored altogether, covers gender discrimination “which may or may not be s*xual in nature”.
Courts elsewhere agree. The US supreme court held in Oncale that harassment need not be motivated by desire; Canada and India root it in equality and dignity. India’s law lists “s*xually coloured remarks”, exactly what was proved, and the 2021 Nadia Naz judgement the FCC relies on quoted that very provision. ILO Convention 190 treats gender-based harassment, including s*xual harassment, as one wrong.
This is where a constitutional court should begin. Article 14 declares the dignity of man inviolable, and the Act’s own preamble rests on it. A constitutional court’s first duty is to read statutes through fundamental rights and expand their frontiers, not shrink them. A woman made to name drawings of private parts before her colleagues has had her dignity violated by any measure.
Constitutional courts are judged not by the powers they claim but by the rights they protect.
Our Supreme Court had already arrived there. In Uzma Naveed (2022) and Muhammad Din (2025), both of which I authored, it held that harassment is not confined to the act of s*x and that dignity is absolute and non-negotiable. The FCC dismisses Muhammad Din in one sentence, “with due respect”, ignores Uzma Naveed, and leans instead on the 2021 Nadia Naz judgement the Supreme Court set aside on review. In Haji Adam, decided by the same author the same day, substantial passages reappear word for word; it even names the bank case’s witnesses as the Pemra complainant’s. That raises a serious question whether each record received independent judicial consideration.
Precedent is not a courtesy; it is law. Judgements of the Supreme Court delivered before the 27th Amendment bound every court under Article 189. The amendment operates prospectively: it makes the FCC’s decisions binding from now on, but it does not erase nearly eight decades of constitutional jurisprudence. Having inherited the Supreme Court’s constitutional jurisdiction, the FCC inherited the law declared under it. If it doubts that law, the doctrine of precedent requires reasoned reconsideration by a larger bench, not a three-member bench’s single sentence. Even the FCC’s own test, set this March, forbids precedent being “ignored and disregarded in silence”.
The deeper problem is the court itself. It was created by the 27th Amendment, rushed through a parliament whose own mandate remains clouded by the disputed elections of February 2024, and carved out of a functioning Supreme Court for reasons never convincingly explained. Britain, the US, India, Canada and Australia entrust constitutional questions to a single apex court, and for good reason: splitting the apex invites conflict and political engineering. South Africa moved the other way in 2013, making its constitutional court the apex court in all matters.
Its first bench was chosen by the president on the prime minister’s advice, bypassing the Judicial Commission, with no published criteria or open assessment of merit. Such a court must earn confidence through its work.
A judgement rendered without hearing the attorney general or appointing an amicus (even the high court had one), and thin on scholarship and constitutional understanding, does not earn it. Nor does the price: salaries above the Supreme Court’s until that court was raised to match, generous staff allowances, and three more years of tenure.
Not a single woman sits on the FCC, a conspicuous absence in a harassment case. I cast no aspersion on any judge who accepted appointment; that is for each conscience. Yet the absence speaks. The women of our judiciary stand apart from this court and deserve the country’s admiration.
Such judgements belong to the bar too, for it is very much part of this new judicial era. Bar associations are guarantor institutions; in 2007 they marched until judges were restored. When the architecture of the 26th and 27th Amendments was assembled, that resistance never came. Too many at the bar’s helm measure ambition by proximity to power rather than fidelity to democracy. That is a deficit of character, not of numbers. When the guardians fall silent, unconstitutionalism rises.
Constitutional courts are judged not by the powers they claim but by the rights they protect. If this is the direction of travel, dark years lie ahead for rights. Faiz urged us to speak while our lips are still free. It now falls to the lawyers who remember 2007, the academy and those who refuse to be silenced to keep the lamps lit.
