FAILURE OF TORT LAW IN PAKISTAN By: WARDA YASIN[1]* Abstract It is the agreed view of Indian as well as Pakistani lawyers that the law of torts has remained undeveloped after the departure of the British. In India, a small effort has been made after the Bhopal tragedy, but a similar movement is not noticeable in Pakistan. The law of torts occupies a very vital position not only in common law countries, but also in Europe. The reason is that the law of torts secures the rights of people, especially those of the common man, who does not have enough resources to seek justice for himself. The way this law was implemented in British India did provide the means to develop and epand it, as was done in the rest of the world, but unfortunately unfortunately these steps were not taken in Pakistan. !ome attention was paid to other compensation systems, but these systems do not provide the amount of damages that can be awarded under tort law. The codification of the law of defamation shows that the only solution for Pakistan to catch up with the rest of the world is to codify the entire law of civil wrongs. This is being done in Europe and in "hina and more than a century ago an effort was made even in British India. #t that time it was considered a very advanced idea, but now the time is ripe for such codification$ in fact, it is essential and inevitable. Keywors !r"t"s !r"t"s# # I$"a I$"a % Pa&"st Pa&"sta$ a$ % I$e'e I$e'e$e $e$ce $ce Act % ()st"c ()st"ce e e+) e+)"ty "ty % co,,o$ co,,o$ -aw % c"."c"."- wro$/s wro$/s % co"0"cat"o$ %torts % cr",es % o00e$ces % e0a,at"o$ % -"be- % s-a$er % a,a/es % ')b-"c 0"/)res % 0a-se -"/#t1 I$tro)ct"o$ T#e 2r)c"a- Ro-e o0 t#e Law o0 Torts "$ t#e 3oer$ Wor- Wor-
The modern world views the law of torts, the law that addresses civil wrongs as distinguished from crimes, as a powerful institution performing a large number of social functions. It is viewed as the primary means of securing rights, rights,%&' as a substitute for revenge, %(' as a system of compensation, %)' as a mechanism for distributive justice, %*' and even as a protection against the culpable and unjust invasion of moral rights. %+'The powerful role of the law of torts in any legal system is not confined to common law countries, as the most important means for securing the rights of the people, but has been taken up most comprehensively in Europe as well since the end of orld ar II. %-' In the developed common law countries, the law of torts has made great strides, and many new torts have been identified with swift remedies. There have been stirrings in India too, especially after the Bhopal tragedy, but the progress is etremely slow. slow.%' In Pakistan, the law of torts left by the British has become shriveled ac/uiring a shrunken posture leaving the poor and the downtrodden without remedies enjoyed by the rest of the world. The law of torts in Pakistan needs to be resurrected from its grave and given a modern form if the rights of the less privileged citi0ens are to be protected and secured. !trange as it may sound, many professionals working in senior positions within the legal system of Pakistan can be heard heard saying that the law of torts does not eist eist in Pakistan. Pakistan. Is this true1 Is Pakistan Pakistan not a common law country1 2oes the common law have nothing to do with Pakistan anymore1 anymore1 Before these /uestions are answered answered it may be stated at the outset that incredibly the law of torts has a very limited role to play in Pakistan. #s a result of this, the rights of many people are trampled upon with impunity and the legal machinery is unable to secure these rights. The rich may obtain relief through some mechanism of influence, but it is the poor people who are the main losers and have nowhere to go. The situation calls for immediate redressal and rejuvenation of the law of torts. There are many causes of the neglect of the law of torts in Pakistan, but before we assess the causes it is important to identify how far tort law has lagged behind in this country as compared to the rest of the world. #ll this, however, is not possible unless we first understand how tort law was introduced in this region and how it has been operating. This paper is being written with the purpose of initiating tort law reform in Pakistan. The underlying idea of the paper is that the legal system cannot secure the rights of the common man just by criminali0ing a few intentional torts against the person and property. property.%3' # comprehensive plan must be made and the serious civil wrongs identified must be presented in the form of a code so that it can be followed conveniently by the people. This will be a multipronged strategy that must first generate considerable debate so that all the issues are eamined in detail and from all perspectives. The present paper is, therefore, a small beginning. It argues that the law of torts, as it obtains in Pakistan, is highly inade/uate. Pakistan must join the other nations of the world and provide a humane system to
its people. !uch a system must provide swift and meaningful remedies to its neglected citi0enry. The primary purpose of this paper is to assess with accuracy the collessal and momentuous task that lies ahead. The paper will begin with a historical overview of the law of torts in Pakistan, to show how it works in a country where common law and Islamic law reside side by side. The story must start with British India and show us how the law was introduced in India, where the British left this law at the time of independence and what progress, if any, has been made by Pakistan in the si or more decades of its life. The developments in Pakistan must also take account of other compensation systems that are in place, and the effectiveness of such systems. This will be eplained in section ( of this paper. !ection ) will take up representive cases where certain torts have been codified. The major eample is that of the 2efamation 4rdinance, &55&. !ection * will recall the causes of failure to etend the eisting common law system and raise the possibility and usefulness of a comprehensive statutory programme to deal with torts. In the net section, which will be the last in this paper, the major torts developed in the common law world, of which Pakistan must take notice, will be identified for possible implementation through statute. The conclusion will then follow. 4 T#e I,'-e,e$tat"o$ o0 Tort Law "$ !r"t"s# I$"a
The application of English common law in India started in earnest in 6-&+, through the Parliamentary "harter of 7eorge I. 8ayor9s courts were established in 8adras, Bombay and "alcutta. These courts were re/uired to apply the English common law with :justice and right.; %65' The power and influence of the British increased gradually till a !upreme "ourt of
igh "ourts #ct, 6+6 was passed. The jurisdiction of British courts and hence the application of the law of torts increased till the partition of India. The word :tort; it is said was used by Britton, a writer of law during the end of the 6(th century, as a title of a chapter on some of the minor offences :2e Plusours, Tot0.; %66' e may mention here a 63)& case in which the position of the law of torts in India is made very clear through the statement of the deciding judge. This was a case in which one party wanted to use a highway, but the other party obstructed him. e then discussed the applicability of the law of torts in India. >is statement is /uite instructive? :In the case of tort, there being no Indian statutory law, the Indian courts have always adopted the English common law as being consonant to justice, e/uity and good conscience. They have departed from the English law only when the applicable rule was unsuitable to the local conditions.; %6&' The main idea underlying this statement is that the law of torts is to be applied in the light of justice, e/uity and good conscience. This type of justice usually means the idea of justice as found in the English common law, therefore, when a judgment is to go against this type of justice it is not to be rendered. %6(' The only justification for going against the common law are the local conditions, which may demand a different course of action. This situation crossed over into the independent countries of Pakistan and India. @ 6A( of the Indian Independence #ct, 63)- read as follows? A( !ave as otherwise epressly provided in this #ct, the law of British India and of the several parts thereof eisting immediately before the appointed day shall, as far as applicable and with the necessary adaptations, continue as the law of each of the new 2ominions and the several parts thereof until other provision is made by laws of the Cegislature of the 2ominion in /uestion or by any other Cegislature or other authority having power in that behalf. This section was adopted in the series of constitutions of Pakistan? 63*+, 63+&, 63-& Ainterim. #rticle &+ if the 63-( "onstitution now reads as follows?
&+A6 Ecept as provided by this #rticle, all eisting laws shall, subject to the "onstitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Cegislature. Cater, in India, the trend changed somewhat and it affected Pakistan too. # greater impact in India was due to the Bhopal tragedy. The Indian courts began saying that they will not follow an outdated English common law. 4f particular significance is the case of M.C. Mehta v. Union of India.%6)' There are other cases too that relate to the same or similar issues. %6*' The English common law thus applies directly in the Islamic Depublic of Pakistan through the law of torts, unless the principles or rules are outdated. The broad policy for applying this law is :justice, e/uity and good conscience,; which really means :judicial discretion; according to the Positivists like #ustin. In short, the common law for torts had to be developed by the judges. In some areas, the law has been codified. These are either torts or related systems of compensation. The 2efamation 4rdinance, &55& is a good eample. 2efamation is a crime too under the Pakistan Penal "ode. hen codification takes place in some area, as in the case of defamation, the common law may be said to shrink to the etent of the provisions of such codified law, but the common law continues to apply to fill the gaps left in the law. The law of defamation has been codified in the nited =ingdom A2efamation #ct, 633+, #ustralia AFueensland 2efamation #ct, &55* and Gew !outh ales 2efamation #ct, &55* as well as in "anada. The #ustralian codified law, for eample, does not attempt to define defamation. This means that the definition of defamation in the common law will apply. The same method applies to Pakistan, that is, if the codified provisions have not altered a common law rule, it will continue to apply. To conclude this section, we may /uote from an Indian author who tries to indicate the inade/uate nature of the law of torts in India. The same reasons for underdevelopment, we may say, apply to Pakistan as well. #nanyo Basu says? The underdevelopment of torts in India may seem at first glance to be in conflict with the very essence of a common law system. In an important sense there can never be lacunae in any area of law in a common law jurisdiction because, to varying degrees, the common law of England and its former dominions and colonies is available for adoption. India9s constitution adopted all eisting English law with the proviso of adaptation where necessary. If new rules or statutes from England are more consonant with the re/uirements of justice, the Indian courts are allowed to discard older common law rules in their favor. 8oreover, a common law judge is entitled Awithin limits to generate new law as dictated by e/uity. Cord !carman in a British opinion made this very point? :The common law Hcovers everything which is not covered by statute. It knows no gaps? there can be no casus omissus. The function of the court is to decide the case before it, even though the decision H.;%6+' 5 De.e-o',e$ts "$ Pa&"sta$ I$c-)"$/ Ot#er 2o,'e$sat"o$ Syste,s
Though scattered, one can observe that tort law is incorporated in different statutes of Pakistan including "ode of "ivil Procedure,%6-' "ode of "riminal Procedure,%6' Pakistan Penal "ode, %63' "ompanies 4rdinance,%&5' orkmen9s "ompensation #ct,%&6' atal #ccidents #ct, %&&' !ocial !ecurity 4rdinance,%&(' actories #ct,%&)' Pakistan Environmental Protection #ct,%&*' "onsumer Protection #ct, %&+' and many other legislations. # century or so ago, the law of tort was the main vehicle for compensation, but poverty, ignorance or economic pressure deprived many persons of access to the law and threw them back on charity or poor law or other cooperative measures.%&-' In more recent times, the development of social security and insurance has relegated tort law to a more secondary role. This trend is continuing, but in certain cases the law of torts will still continue, especially where the injury caused is based upon fault of the defendant and he must pay for his act. It is not possible to deal with this topic here in detail. 4nly a few points will be mentioned. In the case of loss to property, the state does not do much. In this case, insurance is taking over. urther, three types of insurance deals with life assurance, personal accident insurance, and permanent health insurance. Professionals are also turning to insurance for malpractice protection.
!ocial security is huge and comple. It deals with pensions, nonJindustrial injuries and industrial injuries like workers compensation systems. It is to be noted that the Caw and
The main issue that a common law jurisdiction faces is whether the law of torts should be codified, whether the civil wrongs for which the law will provide remedies should be turned into statutory law. This /uestion arose in British India first. !ir redrick Pollock prepared a draft bill on the re/uest of the British government, but ultimately the Indian government 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. The real reason though appears to be that government of that time wished to discourage litigation in this area, as is visible from the ecessive courtJfee %&' introduced to discourage such suits.%&3' It was an ecellent effort and worth reading. Perhaps, it can still be used to codify the law of torts. In this chapter, we will have a brief look at whether a tort that has been codified is working to some etent. The description, therefore, follows. 2efamation in law is attacking another person9s reputation by a false publication, that is, communication to a third party, where such publication tends to bring the person into disrepute. %(5' :The concept is an elusive one and is limited in its varieties only by human inventiveness.;%(6' In Pakistan, as in many other countries, defamation is both a crime and a tort Acivil wrong, which means that a person accused of defamation may be prosecuted for the crime and he may be subjected to civil litigation for recovery of damages. The criminalised part of this law is codified within the Pakistan Penal "ode, and is sometimes considered a masterpiece of legal drafting. %(&' These sections were adopted by other jurisdictions too, for eample, the province of Tasmania, #ustralia. Treating defamation as a criminal offence is rejected today by international standards, because it can be used by governments as a threat to curb the media or employed as an armJtwisting tactic. @ 66 of the 2efamation 4rdinance, &55& provides that :Gothing in this 4rdinance shall prejudice any action for criminal libel or slander under any law for the time being in force.; This means that the provisions of the PP" continue to apply as law and defamation has not been decriminalised.%((' 8any countries continue to retain the crime of defamation, for eample, the nited =ingdom. It is only a few small countries that have decriminalised defamation. Gevertheless, the = has not used this provision in the last one decade or more. e may, therefore, conclude that the trend now is toward decriminalising defamation and Pakistan should think about it too. 2efamation laws have developed over several centuries to provide recourse for people whose reputation is or is likely to be harmed by publication of information about them. %()' The objective of defamation laws is to strike a balance between the protection accorded to reputation and the right to freedom of epression. In reality, however, defamation laws are used mostly as a means of :chilling speech.; The mere threat of defamation proceedings that will re/uire costs and the ultimate award of damages is used to silence criticism. The tort of defamation was up until recently governed by the principles of English common law. This law has now been codified in the form of the 2efamation 4rdinance, &55&. %(*' The English common law on the issue may, therefore, be said to have :shrunk; considerably. Gevertheless, the concepts of the common law have not been ruled out completely. In the nited =ingdom A2efamation #ct, 633+, #ustralia AFueensland 2efamation #ct, &55* and Gew !outh ales 2efamation #ct, &55* as well as in "anada ABritish "olumbia, the tort of defamation is governed jointly by statute and the common law. The position may be said to be the same in Pakistan. This means that the common law principles will apply unless the 4rdinance has altered a common law rule. # survey of the cases shows that only the rich can benefit from the law of defamation. There are no cases by the poor against the media or anyone else. In a country where the Press has newfound liberties, a vague and imposed code of ethics, and the public is interested in sensational news, the reputation of the ordinary people is under threat.%(+' The reasons for this are many and stretch back to the times of the British, who had imposed heavy courtJfee for all tort cases in order to save revenue and haul it back to Britain. The poor people are not aware of their rights, and it is difficult to imagine that a destitute person will have the courage or the resources to file an epensive case against the powerful and rich newspapers or the broadcasting stations. 4ut of the forty or more reported cases
of defamation that have been heard by the >igh "ourts and the !upreme "ourt, in the last decade or more, we have been able to identify only three cases that involve the media. %(-'. #rticle 63 7lobal "ampaign for reedom of Epression made some recommendations pertain to the decriminalisation of the offence of defamation as well as the 2efamation 4rdinance, &55&. It is to be hoped that some of these recommendations will be adopted. 4n the whole, we may say that the 2efamation 4rdinance, &55& is working better than the criminal provisions of the PP", and there have been more cases under the 4rdinance. If notices served under the provisions of the 4rdinance, even when the case does not ultimately end up in court, are taken into account we find that codification of an already well known civil wrong has had a healthy impact. "omplete codification may, therefore, be a good idea. 8
2a)ses o0 Fa"-)re o0 Law o0 Torts "$ Pa&"sta$
The causes of failure of tort law can be summarised as follows? 5.1 Court-fee and the British
The British were interested in preserving their revenue that they collected from India. This re/uired minimum litigation. #ccordingly, heavy courtJfee was imposed. This discouraged tort claims, and made the protection of the law of torts unreachable for the poor masses. It is only in the last decade that this fee has been reduced to Ds. &*555 and less in Islamabad. The epensive process of litigation still prevents the poor from seeking relief under the law of torts. 5.2 Lack of Interest on the Part of Lawyers
2evelopment of law does not only rest on the shoulders of the law makers and judges, but it is also the prime duty of the lawyers. nfortunately, lawyers in Pakistan have not shown the same enthusiasm for the law of torts as they have done for other areas, especially the criminal law. Cawyers are not skilled enough to apply common law principles to fill in the gaps in eisting law. Thus, the very principle of common law Ubi jus ibi remedium has not been effectively argued by the advocates before the courts, and judges have failed to apply it in the cases pleaded before them. This has resulted in depriving the aggrieved from remedies, which could have been given applying common law priciples based on justice, e/uity and good conscience. This has stunted the growth of the law of torts in our country. There is also the lack of advice on the part of the advocates to their clients. Cawyers are mostly concerned with their fee and show selfish attitude towards clients9 problems. They do not bear in mind the role of an educator, which they must perform considering it their obligation as sustainers of law. The result is unnecessary and unwanted litigation. ith proper advice on the law of torts, this law can come up as more preferable choice for the aggrieved, as the victim can get much handsome amount of damages under law of torts than under any other substantive law. 5.3 The Role of the octrines of Cha!"erty and #aintenance
4ne of the major reasons of the neglect of law of torts in Pakistan are doctrines of champerty and maintenance, which needs to be abolished forthwith in order to revive interest in this field and to secure the rights of the poor. The rich may obtain relief through some mechanism, but it is the destitute who is the main loser and has nowhere to go. 2octrine of champerty means that a lawyer who maintains the litigation for a person will get his reward from the damages awarded to the litigant. 8aintenance, on the other hand is :stirring up of litigation by giving aid to one party to bring a claim without just cause or ecuse.;%(' These doctrine were introduced to snub frivilous litigation or a mechanism to encourage the settlement of disputes without recourse to litigation. But in recent times, both of these doctrines have been resisted and given away. The nited =ingdom has also abolished the doctrines of champerty and maintenance, both as torts and crimes.%(3' "hamperty has its practical importance :to invade contigency fee arrangements.; "ontigent fee is an arrangement between a lawyer and his client for the payment of fee only if the client wins the case. If a lawyer agrees to represent a client under a contingency fee agreement, which should not be confused with a :conditional fee agreement,; %)5' the lawyer will be able to claim a percentage out of any damages awarded to the litigant including litigation epenses. But if the client loses the case, he does not have to pay anything to the advocate. In the = such an arrangement was considered against public policy, but since #pril &56(, under the 2amagesJBased #greements Degulation of &56(, %)6' contigency fee agreements are now permitted in the nited =ingdom. The nited !tates has also abolished champerty and maintenance doctrines, but contingent fee is also permitted.%)&' "anada has also tried to follow the ! in this field. %)('
Thus in modern times, contigent fees are allowed in many states including #ustralia, Bra0il, the 2ominican Depublic, rance, 7reece, Ireland, owever, in Pakistan these doctrines still prohibit such arrangements. "onsidering the position of the modern states especially nited =ingdom, it is suggested that doctrines of champerty and maintenance should also be abolished in Pakistan and contigency fee agreements should be allowed in tort cases. This will help in securing the rights of the poor who do not have means to go to the law courts and their tort claims are lost. This will open new avenues for the development and growth of law of torts in Pakistan. 5.$ %o Codification
!ir redrick Pollock prepared a draft and presented it as a proposal to the Indian government for codification. This proposal was not accepted. The Bill is found as an appendi to his book? :# Bill to define and amend certain parts of the Caw of "ivil rongs.; It consists of 3 chapters and -( sections. "hapter LII deals with the tort of nuisance, that is, damage arising out of public nuisance and the tort of private nuisance. %)*' It was an ecellent effort and worth reading. Perhaps, it can still be used to codify the law of tort. 4ne of the reasons of underdevelopment of law of torts is also its non codification. Citigants are not familiar with this law since it is uncodified. # common man would hardly have any knowledge about law of torts where legal professionals can be heard saying that the law of torts does not eist in Pakistan . There are many torts which are crimes too and people in general are more interested in criminal prosecution than civil litigation. The reason being that civil procedure is hectic, epensive and time consuming. !ince, people in this region are mostly uneducated, it is the job of the lawyers to give proper advice to the clients and make them familiar with this law. This task will be easier for lawyers, if law of torts is codified. 8any branches of common law were codified by British rulers in India ecept the law of torts. Therefore, this branch of law remained neglected and least developed, because it remained hidden in the bulk of cases unknown to many. 9
T#e Nee o0 Stat)tory Law o$ Torts
"odification is a means through which the masses become familiar with the law. #s stated above, people are less interested in the law of torts because it has not been reduced into writing in the form of a statute. The provisions which are found in different legislations are not known to a layman. The reason for the success of other laws is mainly codification. 2efamation 4rdinance &55& is a recent eample. The litigation initiated under 2efamation 4rdinance &55& reflects that people are more concerned about laws that are codified, even though its provisions were already included in PP". In modern times, there is trend of codifying law of torts. e have instances of European tort law which is being codified etensively. Tort law of "hina is also an important eample in this area.%)+' e also need to codify law of torts so that it can surface as a clear law, and its provisions can be meted out from a single code, which will be convenient and thereby informative as far as rights of the people are concerned. !tatutory law is superior to case law, says !almond. %)-' This law could not gain popularity amongst our people, unlike other laws such as criminal law, as it lies scattered in precedents and in some statutes, and unfortunately remains uncodified even in the modern times. There is no harm in codifying the law of torts in Pakistan. In fact, it is time for the legislators to think seriously about it and take positive steps for its codification. :7
3a(or Torts "$ t#e 2o,,o$ Law Wor- T#at Nee to be I,'-e,e$te
#lmost all of the intentional torts to person are recognised in Pakistan under criminal law like assualt, %)' battery, %)3' false imprisonment,%*5' but suit for civil remedy is very rare. %*6' The tort of intentional infliction of emotional distress is similarly not covered entirely. 2amages for mental or emotional distress are generally claimed under torts of malicious prosecution or defamation. These damages are secondary to injury but there can be other ways to sue directly for damages of emotional distress. Intentional torts to property are well recognised comparatively and most civil litigation can be witnessed relating to dispossession of movable and immovable property, %*&' which covers trespass and conversion of property as well.
4ne of the most important torts is the tort of negligence, which is recognised in Pakistan both under civil and criminal laws. But neither there are many cases nor people are interested in taking action due to lack of awareness and the provisions being dispersed under different laws. !ame is the case with strict liability, which is part of criminal law but not sufficiently taken up under civil law. Cikewise, remedies for public nuisance can be found under civil and criminal laws, but for tort of private nuisance injunctive measures are available under civil procedural law with hardly any civil actions. #ll of these torts are recognised, whether more or less but knowledge of most of these is confined to books and has not been translated into action due to lack of codification. The invasion of the right to privacy is a tort of recent origin. >owever, the courts in Pakistan have started taking notice of this tort. :Dight of Privacy; is not mentioned in chapter one of the "onstitution of Pakistan discussing fundamental rights. But the courts have discussed #rticle 6) in several cases in the contet of privacy of home. #rticle 6)A6 says, :The dignity of man and, subject to law, the privacy of home, shall be inviolable.; In one significant case, M.D. Tahir, dvocate v. Director, !tate Ban" of #a"istan, $ahore and % others, %*(' the courts have discussed #rticle 6) in more general way. In this case !tate Bank issued a circular to provide information of remunerative accounts to the "BD Anow BD in order to help it :widen the ta net; and :to prevent ta evasion.; The learned "ourt /uestioned, in detail, the authority of the !tate Bank to issue such a circular, and then held, :!uch eventual conse/uences tend to show that this measure of the nature of subordinate legislation suffers from visible legal defects and is held bad on grounds of unreasonableness as well as being discriminatory in nature and thus ultra vires #rticles ) and &* of the "onstitution of Islamic Depublic of Pakistan, 63-(.; The "ourt then turned to an eamination of the constitutional aspects of the measure within the contet of #rticle 6). In a highly instructive discourse, the learned "ourt epanded the meaning of #rticle 6) to cover not only the privacy of the home, but other aspects of the right to privacy. The "ourt stated that :This #rticle of the "onstitution corresponds to #rticle &6 of the Indian "onstitution that has been held to be crucial to the functioning of a democratic and free society.; 2iscussing the right of privacy in the contet of wireJtapping, privacy of an unchaste woman and other aspects, the "ourt held that :it is clear that the people in Pakistan have a right not to have their private financial matters given in good faith under fiduciary relationship to Banks placed before the prying eyes of ta collection agencies without even an allegation of any wrong.; The jurisprudence of the right to privacy in Pakistan is yet to emerge in a complete form. #ttached to this right is also the tort of privacy. It includes newsJgathering related legal issues and publication related violations. The journalists conduct newsJgathering activities violating the privacy of the individuals. %*)' !uch unreasonable intrusion in law allows the imposition of damages and penalties even when the claimant may not be able to prove any monetary loss or damage. Publication related violations are based upon the idea that :some facts about people are so intimate, embarrassing and private, or so misleading and offensive, that they should not be published, thus giving rise to publication based right of privacy claims.; %**' These acts need to be restricted in Pakistan and this will be possible through codification of law of torts. Interference with business relations %*+' is another tort which needs to be recognised in Pakistan. It is a type of tort wherein a third party intentionally acts to cause one party in a business relation to violate business relations with the other. There can be an eisting valid contract or valid business epectancy. Products liability is also one of the important categories of torts. !tricted liability may be imposed if damage is caused by the products. This has been codified in Pakistan under consumer protection law but it needs to be recognised as tort too. Th damages awarded under consumer law are of lesser value, considering it a wrong of strict liability. ;7
2o$c-)s"o$
The law of torts in Pakistan, then, needs to be resurrected from its grave and given a modern form if the rights of the less privileged citi0ens are to be protected and secured. To elaborate the nature and need of such a resurrection, we began with the description of the law of torts operating in Pakistan. The nature of remedies for torts in the days of the British was eplained and then the way they operated in Pakistan was described at some length. It was pointed out throughout the above paragraphs that this law has failed to grow and provide relief to the poor and the injured. Indeed, the operation of the law of torts in Pakistan is highly inade/uate, for which the judges and lawyers are
e/ually to blame. To remedy the situation, the law of torts must be codified forthwith and a whole programme be started to educate the common man about his rights under this law. The present writer has already initiated such a project and work on a M2raft Bill of the Caw of "ivil rongsM is already underway. 4nce the draft is ready it will be distributed among the leading legal personalities in the country and also sent to legislators, both federal and provincial. It is to be hoped that once such a law is codified and implemented, the poor and downtrodden of this country will be heardJJJthrough the law. Re0ere$ces
Basu, #nanyo. :Torts in India? 2harmic Designation, "oloJ nial !ubjugation, or :nderdevelopment;1; The !outh t&antic 'uarter&y 655 A&556? 65*(N65-5. Bryce, . #. C., ed. The Co&&ected #a*ers of -rederic i&&iam Mait&and: Do+nin/ #rofessor of the $a+s of 0n/&and . Lol. (. "ambridge? "ambridge niversity Press, 6366. 7alanter, 8arc. :Cegal Torpor? hy !o Cittle >as >appened in India #fter the Bhopal Tragedy.; Te1as Internationa& $a+ )ourna& &5 A63*? &-(N&3). 7eistfeld, 8ark #. :"ompensation as a Tort Gorm.; In #hi&o2 so*hica& -oundations of the $a+ of Torts, edited by ershovit0, !cott. :Tort as a !ubstitute for Devenge.; In #hi&oso*hica& -oundations of the $a+ of Torts, edited by anoch. :Tort Caw and 2istributive
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The Author is Lecturer in the Department of Law, Faculty of Shariah and Law, International Islamic University Islamabad [email protected]/25/2015. Stephen Perry, “Torts, R!hts, and Rs",# n hilosophical Foundations of the Law of Torts, ed. $ohn %&erde" '%()ord* %()ord +nersty Press, 2001-, .
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Scott 3ershot4, “Tort as a S&sttte )or Reen!e,# n hilosophical Foundations of the Law of Torts , ed. $ohn %&erde" '%()ord* %()ord +nersty Press, 2001-, 102. [] . 6ar" 7. 8est)e9d, “:ompensaton as a Tort ;orm,# n hilosophical Foundations of the Law of Torts, ed. $ohn %&erde" '%()ord* %()ord +nersty Press, 2001-, 55. [5] . 3anoch Shenman, “Tort ntrodcton* Search )or an ?(p9anatory Theory o) Torts,# n hilosophy and the Law of Torts, ed. 8era9d $. Postema ':am&rd!e* :am&rd!e +nersty Press, 2001-, 121. “Re)9ectn! on these s&stante and strctra9 )eatres o) torts, a theoretca99y nc9ned o&serer m!ht entertan the hypothess that the prmary o&ecte o) tort 9aw s to ndcate the mora9 r!hts o) ndda9s nst9y naded &y the c9pa&9e actons o) others and to ho9d nrers to ther mora9 dtes to compensate the 9osses they wron!)99y case ther ctms. 7 mora9 theory o) torts seems to &e ndcated &y the domnant oca&9ary o) tort. Aor to act wth care9ess dsre!ard )or the r!hts and nterests o) others seems not on9y 9e!a99y wron! &t a9so a mora9 )a9n!, and peop9e o!ht to &ear the costs o) ther mora9 )a9n!s. Tort 9a&9ty wo9d seem to &ac" p these mora9 d!ments. >t pnshes these )a9n!s and !rants redress to those who s))er the harm they case.# >&d., 2. The domnant theory n the past has &een &ased on separaton o) mora9 oca&9ary snd d!ements )rom the 9aw, as n the wrtn!s o) 3o9mes '“Path o) the nda 7)ter the Ehopa9 Tra!edy,# Te)as International Law *ournal 20 '1B5-* 2G2B. [B] . See, n partc9ar, the sectons dea9n! wth assa9t, trespass, and de)amaton n the Pa"stan Pena9 :ode, 10. [10] . “The phrase HeDty and !ood conscenceI was sed to em&ody the prncp9es &y whch d!es were to &e !ded when poste r9es, stattory or cstomary, were not )orthcomn!. To a ma!strate who "new no 9aw at a99, these words wo9d mean that he m!ht )o99ow hs own notons o) Hnatra9 stceI and he wo9d pro&a&9y !e more sats)acton to stors than wo9d hs more 9earned &rother, tryn! to app9y con)sed reco99ectons o) E9ac"stone or :htty. >n commerca9 matters common sense wo9d &e aded &y the sa!e o) traders. >n cases o) Tort nate cstom was not o)ten aa9a&9e, &t as the ma!strate who dea9t ot s&stanta9 stce wo9d !e what the peop9e had rare9y o&taned )rom the nate corts, they had no reason to comp9an o) the chan!e.# $ames Eryce, ed., Studies in +istory and *urisprudence, o9. 2 '%()ord* :9arendon Press, 1B11-, o9. 1, p. 11. [11] . See 3. 7. <. Asher, ed., The ollected apers of Frederic -illiam aitland/ Downin0 rofessor of the Laws of %n0land , o9. ':am&rd!e* :am&rd!e +nersty Press, 1B11-, o9. 2, 00 passm. [12] . Surendra 1umar v. Distt. 2oard, 3adia , 7>R 1B2 :a9. 0, 5. [1] . 3awal 1ishore v. !ameshwar, 7>R 1B55, 799 55N 1ushal !ao v. 2. !. 4. !ao, 7>R 1B2 ;a!. 52N Dharni Dhar v. handra She#har, 7>R 1B51 799 GGN 1husro S. 4andhi v. 3.A. 4u5dar, 7>R 1BG0 S: 1. [1] . See *ud0ement Today , Lo9. >, $anary 1, 1BG. [15] . -a0hela !a6san6i v. Shei#h asluddin, '1G- 1 >7 BN S.3. !oy v. Dinbhandu, 1B1 >R 1B21 :a9. 1N Tiruven0oda v. Tripurasundari, 1B2 >R 1B2G ;a!. G5N 2abu s7o Tha#ur Dhobi v. Subashi, 7>R 1B2 ;a!. 50N 3awal 1ishore v. !ameshwar 3ath, 1B55 799 5B. [1] . 7nanyo Eas, “Torts n >nda* =harmc Res!naton, :o9ona9 S&!aton, or “+nderdee9opment#O,# The South Atlantic 8uarterly 100 '2001-* 10510G0. 3e a9so says* “%n a )rst consderaton o) tort 9aw n >nda today the 7mercan o&serer s 9"e9y to &e strc" &y ts )am9arty. :9oser nspecton, howeer, reea9s some d))erences n strctre and st99 more n operaton. The >ndan 9e!a9 system s a standard common 9aw democratc system. ndan consttton prodes a99 the )ndamenta9 r!hts )ond n the +.S. :onsttton &t encora!es !reater soca9 and economc stcenderstanda&9y, snce >nda s more 9&era9 and poorer. >n partc9ar, the 9an!a!e o) 7rtc9e B 'n the secton o) artc9es on #drecte prncp9es# or what we wo9d ca99 aspratona9 rather than en)orcea&9e 9aws- s a tr&te to the pro!resse 9eaders who )o!ht )or >ndaIs ndependence. Ths, n B'&- we see that the state s e(horted to drect ts po9cy so #that the ownershp and contro9 o) the matera9 resorces o) the commnty are so dstr&ted as &est to s&sere the common !ood# and n B'c- so #that the operaton o) the economc system does not res9t n the concentraton o) wea9th and means o) prodcton to the common detrment.# Re!retta&9y there s a !ap &etween these !dn! prncp9es and the socoeconomc and 9e!a9 rea9tes o) >nda. ;onethe9ess, concern )or soca9 stce motates >ndan d!es n a way that many Mestern o&serers wo9d )nd srprsn! ) not tro&9n!.# >&d. [1G] . The :ode o) :9 Procedre, 1B0 7ct ;o.L o) 1B0 '21st 6arch 1B0- Q1B Sts )or compensaton )or wron!s to person or moa&9es, Q B1 P&9c nsance. [1] . The :ode o) :rmna9 Procedre, 1B as amended &y 7ct 2 o) 1BBG. Q 1 P&9c nsance. [1B] . Pa"stan Pena9 :ode '7ct > o) 1B-.
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The Mor"menIs :ompensaton 7ct, 1B2 '7ct ;o. L>>> o) 1B2-. The Aata9 7ccdents 7ct, 155 '7ct ;o. >>> o) 155-. The Pronca9 ?mp9oyees Soca9 Secrty %rdnance, 1B5 'M.P. %rd. o) 1B5-. The Aactores '7mendment - 7ct 2012 '7ct ;o. >L o) 2012-. Pa"stan ?nronmenta9 Protecton 7ct, 1BBG '7ct ;o. >L o) 1BBG-. The Pna& :onsmer Protecton 7ct, 2005 'P&. 7ct >> o) 2005-. M.L.3. Ro!ers, -infield and *olowic5/ Tort , 2. >t s on9y recent9y that the !oernment o) Pa"stan redced the cortC)ee to some e(tent. The E99 s )ond as an append( to hs &oo"* “7 E99 to de)ne and amend certan parts o) the t conssts o) B chapters and G sectons. :hapter L>> dea9s wth the tort o) nsance, that s, dama!e arsn! ot o) p&9c nsance and the tort o) prate nsance. Po99oc", A Treatise on the Law of Torts, 52G. %ncyclopaedia 2ritannica, s.v. “=e)amaton.# >&d. See chapter > o) the Pa"stan Pena9 :ode, 10. 7rtc9e 1B 89o&a9 :ampa!n )or Aree ?(presson has 9ad down the prncp9e that “crmna9 de)amaton 9aws are per se nconsstent wth the !arantee o) )reedom o) e(presson.# See Prncp9e . The +;?S:% sponsored =ec9araton o) SanaIa dec9ared that “dsptes no9n! the meda and/or the meda pro)essona9s n the e(ercse o) ther pro)esson sho9d &e tred nder c9 and not crmna9 codes and procedres.# =ec9araton o) SanaIa, 11 $anary 1BB, endorsed &y the 8enera9 :on)erence &y Reso9ton , adopted at the 2Bth sesson, 12 ;oem&er 1BBG. The ratona9e nder9yn! these statements s that when a state dec9ares an act to &e a crme, t shows that the state has a c9ear nterest n “contro99n! the actty.# :ontro99n! )reedom o) e(presson &y the state s not to &e approed whateer the reasons adanced. >nternatona9 corts today are a9so nc9ned toward the e(ercse o) “restrant n app9yn! crmna9 measres when restrctn! )ndamenta9 r!hts,# and nternatona9 or!ansatons “hae made sm9ar ca99s.# 7rtc9e 1B 89o&a9 :ampa!n )or Aree ?(presson, emorandum on the Defamation 9rdinance, &''& , 1. “79tho!h de)amaton s a creaton o) ?n!9sh 9aw, sm9ar doctrnes e(sted seera9 thosand years a!o. >n Roman 9aw a&se chants were capta99y pnsha&9e. >n ear9y ?n!9sh and 8ermanc 9aw ns9ts were pnshed &y cttn! ot the ton!e. 7s 9ate as the 1th centry n ?n!9and, on9y mptaton o) crme or soca9 dsease and castn! aspersons on pro)essona9 competence consttted s9ander, and no o))enses were added nt9 the S9ander o) Momen 7ct n 1B1 made mptaton o) nchastty 99e!a9. Arench de)amaton 9aws hstorca99y hae &een more seere. 7n act o) 11, whch na!rated modern Arench de)amaton 9aw, reDred conspcos retracton o) 9&e99os matera9 n newspapers and a99owed trth as a de)ence on9y when p&9catons concerned p&9c )!res. 6odern 8erman de)amaton s sm9ar &t !enera99y a99ows trth as a de)ence. >n >ta9y trth se9dom e(cses de)amaton, whch s crmna99y pnsha&9e there.# %ncyclopaedia 2ritannica, s.. “=e)amaton.# The =e)amaton %rdnance, 2002 appears to hae re9ed on a docment prodced &y the 7rtc9e 1B 89o&a9 :ampa!n )or Aree ?(presson Definin0 Defamation, especa99y n terms o) de)nn! de)amaton as we99 as n other prosons 9"e a&so9te and Da9)ed pr9e!e. Aor e(amp9e, the words 9"e “tendn! to 9ower the esteem n whch they are he9d wthn the commnty, &y e(posn! them to p&9c rdc9e or hatred, or &y casn! them to &e shnned or aoded,# wthn the de)nton o) de)amaton. The %rdnance a9so appears to re9y on the +K 7ct o) 1BB. The &ehaor o) the e9ectronnc meda nadn! the pracy o) the peop9e n search )or sensatona9 news &ears amp9e testmony o) ths. These cases are* +a#im Ali v. essrs a#istan +erald ublications :vt.; Ltd. throu0h hief %)ecutive and < others , 'P<= 200G Karach 15-N Shei#h uhammad !ashid v. a6id 3i5ami, %ditor in hief, The 3ation and 3awa=e=-a>at, Lahore and another, P<= 2002 S: 51N and st. 1ani5 Fatima v. Faroo> Tari> and others, P<= 2002 Karach 20. M.L.3. Ro!ers, -infield and *olowic5/ Tort '&d. :ondtona9 )ee means that the c9ent can pay 9ater, on comp9eton o) the cort proceedn!s. There was no pro&9em wth ths, and Q 5 o) the +K :orts and n 1BBG, the 6assachsetts Spreme :ort n Saladini v. !i0hellis r9ed that the doctrnes o) mantenance and champerty “no 9on!er sha99 &e reco!n4ed n 6assachsetts.# The cort reasoned that* “The champerty doctrne s [no 9on!er] needed to protect a!anst the e9s once )eared* spec9aton n 9awsts, the &rn!n! o) )ro9os 9awsts, or )nanca9 oerreachn! &y a party o) speror &ar!ann! poston.# The Spreme :ort o) Soth :aro9na adopted the Saladini ana9yss n 9sprey v. abana Limited artnership n 2000. See, )or e(amp9e, Ma9ter :. M99ston, “:ontn!ent Aee n :anada,# Alta. L. !ev. 1 '1B-. 3er&ert 6. Krt4er, !is#s, !eputations, and !ewards/ ontin0ency Fee Le0al ractice in the United States 'Stan)ord* Stan)ord +nersty Press, 200-, 25C25B. Po99oc", A Treatise on the Law of Torts, 52G. Tort t came nto )orce on $9y, 1st 2010. $ohn Sa9mond, *urisprudence, 12th edton 'Sweet 6a(we99, 1B-, 12B. Secton 51 PP:. See, Secton 50 :rmna9 Aorce, PP:. See, :hapter L>7, PP:, Secton B Mron!)9 restrant and Secton 0 Mron!)9 con)nement.
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Q1B Sts )or compensaton )or wron!s to person or moa&9es, :P:. Sectons 1C20, :P: dea9 wth terrtora9 rsdcton )or )9n! sts concernn! moa&9e and mmoa&9e property. 200 :<= 10 't s sometmes a9so ca99ed “Tortos >nter)erence o) Esness# or “>nter)erence wth Prospecte :ontract#.
