The perceived failure of tort law in Pakistan can be attributed to a myriad of factors, primarily stemming from historical, structural, and cultural influences that have stunted its development and implementation.

Historically, the law of torts in Pakistan is derived from the English common law, which was introduced during the British colonial era. Post-independence, both India and Pakistan inherited this legal framework. However, unlike India, where there has been some progression particularly post-Bhopal tragedy, Pakistan has seen negligible development in tort law. The primary reason for this stagnation is the lack of attention from lawmakers and the judiciary, coupled with a general disinterest among legal professionals to advance this area of law. Consequently, the legal machinery has not evolved to address civil wrongs effectively, leaving many aggrieved parties without adequate remedies.

One of the critical issues is the absence of codification of tort law. While other areas of law have seen comprehensive statutory development, tort law remains largely uncodified and thus obscure to the general populace. This obscurity is exacerbated by a lack of awareness and education about tort law among both the public and the legal community. As a result, individuals are often unaware of their rights under tort law and the potential remedies available to them. The codification of defamation law in 2002 stands as a rare exception, demonstrating that when civil wrongs are clearly defined and codified, they can lead to more effective legal recourse.

The structural deficiencies within Pakistan’s legal system further contribute to the problem. The legal system is overburdened and under-resourced, struggling to manage even the criminal cases, which are deemed a higher priority due to their immediate impact on public order. Civil matters, including tort cases, are often sidelined. This inadequacy is compounded by the high cost of litigation, which acts as a significant barrier for many potential plaintiffs. Historically, the imposition of heavy court fees by the British to discourage litigation has had a lingering effect, making access to justice through tort law particularly challenging for the poor.

Culturally, there is a prevalent reliance on informal mechanisms of dispute resolution such as panchayats and jirgas, especially in rural areas. These traditional systems often preclude formal legal proceedings, including tort claims, thereby limiting the reach and impact of tort law. Moreover, societal attitudes towards civil wrongs, often seen through a lens of fate or divine will, discourage litigation. This cultural perspective is particularly evident in cases of medical negligence, where patients or their families may attribute adverse outcomes to the will of God rather than pursuing legal action .

The role of legal professionals also cannot be overlooked. There is a noticeable lack of interest and expertise among Pakistani lawyers in the field of tort law. Many lawyers are more inclined towards criminal law or other more lucrative areas of practice. This disinterest results in a lack of advocacy for tort law reform and inadequate representation for clients with tort claims. Furthermore, doctrines such as champerty and maintenance, which prohibit contingency fee arrangements, deter lawyers from taking on tort cases that may not promise immediate financial returns.

Also, the absence of a robust body of precedent and judicial interpretation hampers the development of tort law. In common law jurisdictions, the evolution of legal principles through case law is vital. However, in Pakistan, the limited number of tort cases that reach the higher courts means there is a scant jurisprudence to guide lower courts and practitioners. This lack of judicial engagement perpetuates a cycle of neglect and underdevelopment.One significant barrier to the development of tort law in Pakistan is the absence of comprehensive codification. While other areas of law, such as criminal and family law, have seen extensive legislative development, tort law remains largely uncodified. This lack of formal codification means that tort law is not easily accessible or understandable to the general public or even to legal professionals. The sporadic and limited application of tort principles has led to a general perception that tort law is non-existent in Pakistan, further discouraging its use and development.

Additionally, the legal infrastructure in Pakistan is inadequate to support the effective implementation of tort law. The judiciary is overburdened with a backlog of cases, and the legal system struggles to provide timely and efficient resolution of disputes. This inefficiency particularly affects civil matters, including tort claims, which are often seen as lower priority compared to criminal cases. The high cost of litigation also poses a significant barrier, making it difficult for individuals, especially those from lower socioeconomic backgrounds, to pursue tort claims.

Culturally, there is a reliance on traditional dispute resolution mechanisms, such as panchayats and jirgas, especially in rural areas. These informal systems often handle civil disputes, including those that would otherwise fall under tort law, outside the formal legal framework. This cultural preference for traditional dispute resolution over formal litigation further diminishes the role and development of tort law in Pakistan.

Moreover, societal attitudes towards civil wrongs and justice contribute to the underutilization of tort law. There is a pervasive acceptance of misfortune or harm as acts of fate or divine will, rather than as civil wrongs warranting legal redress. This fatalistic attitude discourages individuals from seeking legal remedies for tortious acts, thereby limiting the development and application of tort law.

The role of the legal profession in Pakistan also plays a crucial part in the stagnation of tort law. There is a noticeable lack of interest and expertise among lawyers in this area. Many lawyers prefer to focus on more lucrative areas of practice, such as criminal law or corporate law, rather than on tort law, which is seen as less rewarding. This lack of professional engagement means there is insufficient advocacy for tort law reform and inadequate representation for clients with tort claims.

Furthermore, the doctrines of champerty and maintenance, which prohibit contingency fee arrangements, deter lawyers from taking on tort cases that may not promise immediate financial returns. In many jurisdictions, these doctrines have been abolished to allow for more flexible fee arrangements, encouraging lawyers to represent clients in tort cases. However, in Pakistan, these doctrines remain in place, further stifling the development of tort law.

The judicial approach to tort law in Pakistan also contributes to its underdevelopment. There is a scarcity of judicial precedents in tort law, as relatively few tort cases reach the higher courts. This lack of precedents means that there is little guidance for lower courts and practitioners, resulting in inconsistent application and interpretation of tort principles. The judiciary’s conservative approach and reluctance to innovate further impede the evolution of tort law.

Moreover, the education and training of legal professionals in Pakistan do not emphasize tort law. Law schools and bar associations focus more on criminal and constitutional law, leaving tort law underrepresented in legal education. This lack of emphasis results in a dearth of expertise and interest in tort law among new lawyers, perpetuating its neglect.

The impact of this failure is profound, particularly for the less privileged citizens of Pakistan. Tort law serves as a vital mechanism for individuals to seek redress for civil wrongs and injuries. Without a robust tort system, victims of negligence, defamation, and other tortious acts are left without adequate remedies. This lack of access to justice undermines public confidence in the legal system and perpetuates a cycle of impunity for civil wrongs.

The need for reform in Pakistan’s tort law system is urgent. Codification of tort law is a crucial step towards making it accessible and understandable to the general public. A comprehensive code of civil wrongs would provide clear guidelines for the courts and litigants, promoting consistency and fairness in the application of tort principles. Additionally, public awareness campaigns and legal education programs can help educate citizens about their rights under tort law and the remedies available to them.

Moreover, there is a need to incentivize legal practice in tort law. Introducing contingency fee arrangements can encourage lawyers to take on tort cases, providing access to justice for individuals who cannot afford to pay legal fees upfront. Reforming the doctrines of champerty and maintenance to allow for such fee arrangements would align Pakistan with modern legal practices and facilitate the growth of tort law.

The judiciary also has a critical role to play in the development of tort law. Judicial activism and willingness to innovate can drive the evolution of tort principles and set important precedents. Training programs for judges on contemporary tort law issues and international best practices can enhance their ability to adjudicate tort cases effectively.

The analysis of case law regarding tortious claims in Pakistan reveals a perceived failure of tort law in several key aspects, despite some judicial advancements. These failures stem from procedural complexities, jurisdictional ambiguities, and a lack of comprehensive legislative framework governing tortious liabilities.

Firstly, the case of Supreme Court Bar Association of Pakistan v. Federation of Pakistan (2024 PLD 1 SUPREME-COURT) highlights the failure to enforce constitutional duties effectively. The breach by high-ranking officials, including the President and Governors, in not conducting general elections within the stipulated period, reflects a significant lapse in constitutional governance. Although the Supreme Court recognised the violation, the fact that such a fundamental breach occurred indicates a systemic failure to uphold and enforce constitutional and tortious accountability at the highest levels of government.

Secondly, the Pakistan Television Corporation v. Noor Sanat Shah series of cases (2023 SCMR 616 and 2023 PLC 135 SUPREME-COURT) underscore a procedural failure in the tort system. These cases affirmed the civil court’s jurisdiction over tortious claims against state corporations, especially in the absence of specific laws regulating pure economic loss. However, this judicial remedy arises from the lack of legislative clarity and framework, leaving plaintiffs reliant on judicial discretion rather than clear statutory provisions. The ad hoc nature of such judicial decisions points to a legislative gap in addressing tortious claims systematically.

The Mazhar Ali v. Park Avenue Owners/Occupants Welfare Association (2020 MLD 257 KARACHI-HIGH-COURT-SINDH) case demonstrates the courts’ reliance on principles like “res ipsa loquitur” to shift the burden of proof in workplace accidents. While this aids plaintiffs, it also signifies a reactive approach by the judiciary to compensate for the absence of robust employer liability laws. The necessity of judicial intervention to establish employer negligence underscores a failure to have preemptive and detailed legislative protections for employees.

In Ishfaq Ahmed v. Habib Bank Limited (2017 CLD 1639 LAHORE-HIGH-COURT-LAHORE), the Lahore High Court’s decision that banking courts lack jurisdiction over tortious claims related to defamation and mental stress reveals jurisdictional ambiguities. This case illustrates how procedural barriers can impede access to justice for tortious claims, as plaintiffs must navigate complex jurisdictional rules to find the appropriate forum for their grievances. Such barriers reflect a fragmented legal landscape that complicates the pursuit of tortious remedies.

The Islamic Republic of Pakistan v. Abdul Wahid (2011 SCMR 1836 SUPREME-COURT) case highlights the limited application of exemplary or punitive damages. The Supreme Court acknowledged the deterrent value of such damages but cautioned against their widespread use, suggesting they be reserved for exceptional circumstances. This conservative approach reflects a broader hesitation within the judicial system to fully embrace tort law’s potential to deter egregious conduct through significant punitive measures, thus limiting the scope of tortious deterrence.

Moreover, the historical case of Pakistan through Secretary to the Government of Pakistan, Ministry of Railways and Communications, Karachi v. Muhammad A. Hayat (PLD 1962 SC 28) highlights the abolition of sovereign immunity as a defence for state entities. While this is a positive development, the continuous reference to this precedent indicates that, despite its abolition, the state’s resistance to accepting tortious liability remains an issue. This persistent challenge reflects a systemic reluctance within state entities to acknowledge and address tortious responsibilities fully.

Overall, the case law reveals an evolving but still inadequate framework for addressing tortious claims in Pakistan. The reliance on judicial discretion, procedural hurdles, jurisdictional ambiguities, and the limited application of punitive measures collectively contribute to the perception of a failure in the tort law system. These deficiencies highlight the need for comprehensive legislative reforms to establish a clear, accessible, and robust framework for tortious liability that can effectively deter wrongful conduct and provide adequate remedies for aggrieved parties.

In conclusion, the failure of tort law in Pakistan is a complex issue rooted in historical neglect, structural inadequacies, cultural attitudes, and professional disinterest. Addressing this failure requires a multifaceted approach, including codification of tort law, public education, incentivizing legal practice in this area, and enhancing judicial capacity. Without such reforms, the rights of the less privileged will continue to be inadequately protected under the current legal system. The resurrection and modernization of tort law in Pakistan are essential for securing justice for all citizens and ensuring a fair and equitable legal system.

By The Josh and Mak Team

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