The Need To Develop Constitutional Torts In Pakistan
Abstract: Tortious claims are private law civil remedies availed by those who suffer harm and seek compensation. Over time and across the world, public law has also incorporated these private law claims whereby a state can become liable for breaches of ‘duty of care’ towards its citizens. All over the world, civil tortious claims against governments are dealt with in a manner similar to any other private law claim, that is, through a civil trial and the recording of evidence. The Indian courts have, however, over time developed a unique jurisprudence by incorporating tortious claims as a relief available to litigants invoking the constitutional jurisdiction of the courts for enforcement of their fundamental rights. This article shall trace the development of these ‘constitutional torts’ and then make a case as to why the High Courts in Pakistan should adopt the same.
Introduction: Intersection Between Tort Law and Public Law
An important ancillary notion which arises with the idea of rights is the notion of burdens or duties each citizen owes to others around him or her, i.e. a citizen or any legal entity vested with rights has a responsibility to carry out actions with a duty of care so as to prevent harm to others. If any legal entity, however, does act in a negligent or harmful manner and performs an act which causes harm to another, it gives rise to a tortious claim. An actionable tort claim is a civil remedy arising from the doctrine of private law in the Common Law system. As per tort law, the ‘tortfeasor’ (the one who causes the harm) is liable to fully compensate the party which has suffered the harm caused by his or her negligent or harmful conduct.
However, this leaves one burning question: What is to be done about the harm caused by a state to its citizens? Fundamentally, disputes between a citizen (or a group of citizens) and the state (or its public bodies) fall within the domain of public law, which is distinct from private law in many ways. While private law regulates the conduct of private parties, public law essentially keeps a check on public bodies from acting in an arbitrary manner so as to maintain the rule of law. Constitutions are meant to bridle and regulate the power of the state by providing legal reliefs in the forms of enforceable rights to the citizens. However, public law remedies are limited to declaratory or injunctive reliefs. What about tortious claims a citizen may have against the state?
There used to be an old Common Law notion that ‘the King can do no wrong’ which made the crown immune from being sued for any damage caused by it or its officers in the pursuance of their duties and therefore, no tortious remedy could be pursued against it. This ‘sovereign immunity’ rule has however changed over time all over the world as legislatures have gradually provided citizens statutory rights to pursue tortious claims against governments. In the UK, the Crown Proceedings Act 1947 provided citizens the right to pursue tortious remedies against the Crown and in the USA, the Federal Torts Claims Act 1946 provides US citizens the right of pursuing tortious remedies against the US federal government.
Suing the Government of Pakistan
In Pakistan, Article 212(b) of the Constitution of Pakistan 1973 makes it imperative on the Parliament of Pakistan to establish administrative courts or tribunals to adjudicate the tortious claims arising from governmental actions.
“Article 212 (1) – Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant.”
The Parliament of Pakistan still has to give effect to this Article of the Constitution by passing relevant legislation to create a competent forum which would effectively and efficiently deal with the tortious claims of the citizens of Pakistan against the state.
While reported case law in Pakistan is scant in which the state has been held financially liable for tortious acts committed by its officers in the performance of their duties, the lack of development of tort law, statutory immunities provided to public officers and institutions and the inefficiency of trial procedure still effectively bar citizens of Pakistan from pursuing any tortious claim against the state.
Tortious remedies in Pakistan are hard to pursue as civil suits against the government hardly lead to any favorable results within a reasonable time-frame. And, in fact, the currently negligent governmental public bodies and officers are provided immunity from civil claims arising from harmful actions done by them in performance of their duties under the ‘good faith’ immunity clauses incorporated in most statutes passed by the Parliament.
Taking all of that into account, it would seem that quick fixes in the form of new legislation would not solve the problem effectively because the filing of a civil action is tedious and requires a lot of time. In fact, one could point out that with so many cases pending in our civil courts, enactment of such laws will only create an extra burden on the already burdened courts and not effectively deal with the problem at all.
Therefore, it would seem that governmental excesses and negligence in administrative law which cause harm to the citizens of Pakistan would remain uncompensated and unaccounted for, unless some innovative legal thinking is not adopted.
Constitutional Jurisdiction and Constitutional Torts
In light of the immunity from tortious claims given to the Government of Pakistan or any of its officers or institutions, the citizens of Pakistan seem to have only one recourse to curb governmental excesses: Article 199 of the Constitution of Pakistan 1973 (and to some extent Article 184(3)).
However, as per the current interpretation given to Article 199 by courts in Pakistan, the relief granted by the superior courts of Pakistan in their constitutional jurisdiction can be of a declaratory and/or directive nature; it can stop the state from continuing any further action which is infringing the petitioner(s)’ fundamental right(s) but does not provide for any monetary compensation to be made to the petitioner(s) for harm already caused by the infringement of their rights by the state. How, then, can the courts in Pakistan correct this gap in our law?
The solution might lie in looking at the Indian superior courts, where an interesting jurisprudence has developed. Article 300 of the Constitution of India 1949 provides that the federal government of India and/or any provincial governments are juristic entities that can be sued.
“Article 300. Suits and proceedings
(1) The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.”
This article of the Indian Constitution, therefore, establishes the legal personification of the Indian state which is necessary for it to be liable to be sued in a court of law. However, the legislature in India, much like the legislation in Pakistan, has never passed any law which has provided the citizens the right to sue the Government of India for its tortious actions. The 1956 Law Commission Report of India also cited the need for a statute to provide effective and speedy relief to citizens who wished to file tortious claims against the federal government, but this has never been acted upon.
The courts in India also previously adhered to the antiquated common law principle of ‘sovereign immunity’ and were reluctant to assign the Government of India any financial liability for tortious acts committed by government officers and agencies in the course of ‘official duties’. In fact, in the Kasturi Lal case, the court held that police officers, who are agents of the state, are not liable for any tortious act committed by them in discharge of their official duties, even if they have been negligent in their actions, as those official duties fall within the domain of the ‘sovereign powers’ of the state.
However, over time, judicial philosophy in India has shifted; negligent actions of state officials and state bodies, even if done in pursuance of the ‘sovereign powers’, are no longer granted immunity from civil claims and it has been seen that the limited liability of Indian officers and institutions has slowly transformed into full liability. However, even with this shift in jurisprudence, it seems that allowing civil claims against the government may not lead to any positive change, because problems in the Indian legal system in relation to tort law are very much the same as Pakistan’s: a weak and underdeveloped tort jurisprudence and slow, inefficient and costly civil trials, etc.
The Indian judiciary has responded to this crisis in an interesting and innovative manner. In the controversial but seminal case of Rudul Shah v. State of Bihar [AIR 1983 SC 1086], the petitioner had spent over 20 years in prison even after he had been acquitted. The Indian Supreme Court, appalled by the circumstances of the case, not only directed the State of Bihar to release the petitioner from prison, but in an act of judicial law-making, also ordered that the petitioner be compensated monetarily by the State of Bihar for the 20 or so odd years he had spent languishing in jail. The Indian Supreme Court ordered this compensation to be paid in its constitutional jurisdiction and held no trial for the quantification of damages, as is the normal procedure for tort cases. Even though an initially controversial judgment, the jurisprudence of the Indian Supreme Court in Rudul Shah caught on and cemented a new prayer that a petitioner could seek against the state, under the court’s constitutional jurisdiction.
In another such case, Saheli v. Commissioner of Police, Delhi 1990 AIR 513, the state was held liable for the tortious acts of its employees when a 9-year-old boy died after a police officer beat him in excess of the power vested in him. The court directed the government to pay Rs. 750,000 as compensation to the mother of the child. In a more recent case, Chairman Railway Board V. Chandrima Das (2000) 2 SCC 465, the petitioner was a victim of rape by employees at a railway station and the Railway Board was held liable for compensatory and punitive damages. In both these cases and many others, the petitioner was provided compensation by the state for the negligence of its institutions and/or officers, under the constitutional jurisdiction of the court.
It is the belief of these authors that a country like Pakistan is ripe for the adoption of the jurisprudence of ‘constitutional torts’. Given that India and Pakistan share many similarities – such as issues of abuse of governmental authority, a nascent and undeveloped tort law jurisprudence and exploitative and inefficient trial courts – it would make sense if the courts in one country learned from the other.
The existence of a tortious remedy available to a petitioner through the constitutional jurisdiction of the court under Article 199 may provide more incentive to government offices and departments in Pakistan to act within the parameters of the law and carry out state actions with a reasonable duty to care and avoid harm. And most importantly, it will also give some monetary compensation to those most affected by excessive and illegal governmental actions. It is time that the state and it’s institutions and officers are held liable and responsible for their negligent acts and are made to pay those most affected and harmed.
 PLD 1963 SC 627, PLD 1975 Lah 1238
Citizens versus the State: Public Servant Immunity and Tort Law Reforms in Pakistan
An Insaaf Series report by TheNetwork Publications published in 2005.
 The State of Rajasthan v. Mst. Vidhyawati and Anr.  Supp 2 SCR 989
Kasturi Lal Ralia Ram V. State of UP AIR 1965 SC 1039
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