Frustration of the Law of Torts In Pakistan
(Tort = civil wrong, as opposed to a crime).
The practice of English common law in India took its first step in 1726 via the Parliamentary Charter of George I, and following that, Mayor courts were set up in Madras, Bombay and Calcutta. Hence, the courts of law were obliged to apply English common law with “justice and right”. The potential and influence of the Britishers increased, gradually till a Supreme Court of Judicature was bring into being in the Presidency towns, with the authority of King’s Bench in England, put into effect the law of torts, in company of various laws, through “justice, equity and good conscience” with adjustments as specified
Influence of the British gradually increased, till a Supreme Court of Judicature was brought into being in the Presidency towns with the authority of King’s Bench in England, and that put into effect the law of torts in company of various laws through “justice, equity and good conscience” and with adjustments as specified by native conditions. A variety of courts was framed and existed till the passing of Indian High Courts Act 1861. The jurisdiction of British courts and hence the application of torts extended, till the division of subcontinent. So the law of torts came to Pakistan from the common law of England and is thus not codified like other streams of law in many common law countries (however, it is codified in American jurisprudence), and despite being applicable throughout the world and within Pakistan, its administration and operation are not experienced more often.
The question is, why is there is less applicability of torts? If the law of torts is being administrated and is applicable, why is the overall ratio of tort cases so low? Consequently, there are many reasons plus excuses. The initial point to consider is that the law of torts in Pakistan is basically the English law as revised by the Acts of the Pakistani legislature.
There are many factors behind the non-applicability of torts in our country. Firstly, the conditions of our legal system, if truth be told, are pathetic. Our system may be striving and fighting to resolve criminal matters considered to be against the state, but how can we effectively resolve civil matters that are between individuals? An unspecified number of cases remains unresolved due to the inadequacy of resources. Furthermore, fair play is also missing. All this needs to be refined in a well-defined structure.
We are an adherent society with the panchayat and jirga system as our modus operandi, and if any tort is committed, people usually prefer to resolve it by the reciprocal settlement of their society rather than going to court. It is to say with regret that the system in which we are working is utterly nefarious.
Indian as well as Pakistani lawyers are of the view that law of torts has remained undeveloped even after the departure of the British. The law of torts occupies a vital position not only in common law countries but also in Europe, etc. The reason is that it secures the rights of individuals who do not have enough resources to seek justice for themselves when faced with a civil wrong. The way this law was implemented in British India did provide the means to develop and expand it, as was done in the rest of the world, but unfortunately these steps have not been taken in Pakistan. Some attention has been paid to other compensation mechanisms but these systems do not provide the amount of damages that can be awarded under tort law. Non-cooperation of lawyers has also been observed, unfortunately. It is tragic that in 70 years we have just codified the law of defamation in the field of torts.
Sir Fredrick Pollock in 1874 prepared a draft bill on the ‘Law of Civil Wrongs’ at the request of the British government, but the Indian government eventually decided not to undertake codification in this area at that time. The reason perhaps was that the public was not sufficiently educated to understand this law. But now the time is ripe for such codification as citizens are well aware of their rights. In fact, codification of the law of torts is not only essential, it is inevitable.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.