THE tort law deals with cases of civil wrong that one commits towards another for which remedy may be obtained, usually in the form of damages. For instance, if a doctor performs an operation by using rusted tools or leaves an alien object in the body during the procedure, s/he would face legal liability since s/he has a responsibility to perform the procedure properly.
The law of tort is important as it primarily means securing rights, especially the rights of the common man, who may not always have enough resources to seek justice. However, in Pakistan there is no stringent applicability of the tort law.
Every day, we see and hear countless cases on TV channels and social media regarding medical negligence of doctors, restaurants providing expired, stale, poisonous food, etc. But people leave these cases as the ‘will of God’ or resolve it through primitive means instead of taking them to the court.
The question is: why is there less applicability of the tort law in Pakistan? If it is applicable and available in the country, why is there an absence of tort cases in the courts?
There are many factors behind the non-applicability of the tort law in Pakistan. First, the expensive process of litigation prevents the poor masses from seeking relief under the law of torts. The heavy court fee discourages tort claims, making any possible relief under the law unavailable to the poor. Due to the excessive litigation process, people, especially those in rural areas, prefer to resolve the tort by jirga or panchayat instead of taking the matter to the court.
Besides, there is no codification of the tort law. It is one of the important reasons for the underdevelopment of this law. The common man would hardly know about this law since it is uncodified. People are less interested in this law because it has not been placed under any particular statute.
The lack of interest on the part of the lawyers in this law is another factor. They have not shown enthusiasm towards this law compared to other domains of the legal system. People in the region are not sufficiently educated to understand this law; it is the job of the lawyers to give proper advice to the clients and make them familiar with this law. Lawyers are equally to blame for the underdevelopment of the tort law.
These factors have stunted the growth of the law in the region. We need to have regulated and affordable court fee so that its benefits may reach everyone seeking justice. Also, the codification of the tort law would help to uplift this field of law. The reason for the success of other laws is the codification. Defamation Ordinance 2002 is a good example in this regard.
In modern times, the trend is to have the tort law codified. The European and Chinese versions provide the best examples. One can but hope that once such a law is codified and implemented, the poor masses of this country will have their voice heard through the law.
Abid Hussain Samejo
Karachi
Published in Dawn, September 29th, 2021
