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 expand it, as was done in the rest of the world, but unfortunately these
steps were not taken in Pakistan. Some 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
China and more than a century ago an effort was made even in British India. At
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.
British India
— Pakistan — Independence Act — justice, equity — common law — civil wrongs —
codification —torts — crimes — offences — defamation — libel — slander — damages
— public figures — false light1
Introduction: The Crucial Role of the Law of Torts in the Modern World
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,[2] as a substitute for
revenge,[3] as a system of
compensation,[4]
as a mechanism for distributive justice,[5] and even as a protection
against the culpable and unjust invasion of moral rights.[6] 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 World War II.[7] 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 extremely slow.[8] In Pakistan, the law of
torts left by the British has become shriveled acquiring 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 citizens are to be
protected and secured.
Strange as it may sound, many
professionals working in senior positions within the legal system of Pakistan
can be heard saying that the law of torts does not exist in Pakistan. Is this
true? Is Pakistan not a common law
country? Does the common law have
nothing to do with Pakistan anymore? Before these questions are answered it may
be stated at the outset that incredibly the law of torts has a very limited
role to play in Pakistan. As 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. All 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 criminalizing a few intentional torts against the person and property.[9] A 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 examined 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 inadequate. Pakistan must join the other nations
of the world and provide a humane system to its people. Such a system must
provide swift and meaningful remedies to its neglected citizenry. 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 six 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 explained in section 3 of this paper. Section 4
will take up representive cases where certain torts have been codified. The
major example is that of the Defamation Ordinance, 2002. Section 5 will recall
the causes of failure to extend the existing common law system and raise the
possibility and usefulness of a comprehensive statutory programme to deal with
torts. In the next 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.
2 The Implementation of
Tort Law in
The application of English common law in
The word “tort” it is said
was used by Britton, a writer of law during the end of the 13th century, as a
title of a chapter on some of the minor offences “De Plusours, Totz.”[11] We may mention here a
1942 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. Justice B. K.
Mukerjee held that this was not a case of public nuisance. He then discussed
the applicability of the law of torts in India. His statement is quite
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, equity and good conscience. They have departed from the English law
only when the applicable rule was unsuitable to the local conditions.”[12] The main idea underlying
this statement is that the law of torts is to be applied in the light of
justice, equity 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.[13] 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. § 18(3) of the
Indian Independence Act, 1947 read as follows:
(3) Save as otherwise expressly provided in this Act, the law of
British India and of the several parts thereof existing immediately before the
appointed day shall, as far as applicable and with the necessary adaptations,
continue as the law of each of the new Dominions and the several parts thereof
until other provision is made by laws of the Legislature of the Dominion in
question or by any other Legislature or other authority having power in that
behalf.
This section was adopted in
the series of constitutions of
268(1) Except as provided by this Article, all existing laws
shall, subject to the Constitution, continue in force, so far as applicable and
with the necessary adaptations, until altered, repealed or amended by the
appropriate Legislature.
Later, in India, the trend
changed somewhat and it affected Pakistan too. A 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. Of particular significance is the case
of M.C. Mehta v. Union of India.[14] There are other cases too
that relate to the same or similar issues.[15] The English common law
thus applies directly in the Islamic Republic of Pakistan through the law of
torts, unless the principles or rules are outdated. The broad policy for
applying this law is “justice, equity and good conscience,” which really means
“judicial discretion” according to the Positivists like Austin. 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
Defamation Ordinance, 2002 is a good example. Defamation is a crime too under
the Pakistan Penal Code. When codification takes place in some area, as in the
case of defamation, the common law may be said to shrink to the extent 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 United
Kingdom (Defamation Act, 1996), Australia (Queensland Defamation Act, 2005 and
New South Wales Defamation Act, 2005) as well as in Canada. The Australian
codified law, for example, 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 quote from an Indian author who tries to indicate the inadequate nature of
the law of torts in India. The same reasons for underdevelopment, we may say,
apply to Pakistan as well. Ananyo 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. India’s constitution
adopted all existing English law with the proviso of adaptation where
necessary. If new rules or statutes from England are more consonant with the
requirements of justice, the Indian courts are allowed to discard older common
law rules in their favor. Moreover, a common law judge is entitled (within
limits) to generate new law as dictated by equity. Lord Scarman in a British
opinion made this very point: “The common law …covers 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
….”[16]
3 Developments in
Though
scattered, one can observe that tort law is incorporated in different statutes
of Pakistan including Code of Civil Procedure,[17] Code of Criminal
Procedure,[18]
Pakistan Penal Code,[19] Companies Ordinance,[20] Workmen’s Compensation
Act,[21] Fatal Accidents Act,[22] Social Security
Ordinance,[23]
Factories Act,[24]
Pakistan Environmental Protection Act,[25] Consumer Protection Act,[26] and many other
legislations.
A 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.[27] 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. Only 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. Further, three types of insurance deals
with life assurance, personal accident insurance, and permanent health
insurance. Professionals are also turning to insurance for malpractice
protection.
Social security is huge and complex. It deals with pensions,
non-industrial injuries and industrial injuries like workers compensation
systems.
It is to be noted that the Law and Justice Commission has
recommended that the Fatal Accidents Act be repealed, because the same issues
are dealt with the qiṣāṣ and diyat
provisions.
These systems may be more efficient and simpler to implement, but
the compensation may be too little as compared to the damages that can be
awarded under the law of torts.
4. Selective Codification: Defamation Ordinance
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 question arose in British India first. Sir Fredrick Pollock
prepared a draft bill on the request 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
excessive court-fee[28] introduced to discourage
such suits.[29]
It was an excellent 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 extent. The description,
therefore, follows.
Defamation in law is
attacking another person’s reputation by a false publication, that is,
communication to a third party, where such publication tends to bring the
person into disrepute.[30] “The concept is an
elusive one and is limited in its varieties only by human inventiveness.”[31] In Pakistan, as in many
other countries, defamation is both a crime and a tort (civil 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 Code, and
is sometimes considered a masterpiece of legal drafting.[32] These sections were
adopted by other jurisdictions too, for example, the province of Tasmania,
Australia.
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 arm-twisting tactic. § 11 of the
Defamation Ordinance, 2002 provides that “Nothing in this Ordinance 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 PPC continue to apply as
law and defamation has not been decriminalised.[33] Many countries continue
to retain the crime of defamation, for example, the United Kingdom. It is only
a few small countries that have decriminalised defamation. Nevertheless, the UK
has not used this provision in the last one decade or more. We may, therefore,
conclude that the trend now is toward decriminalising defamation and Pakistan
should think about it too.
Defamation 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.[34] The objective of
defamation laws is to strike a balance between the protection accorded to
reputation and the right to freedom of expression. In reality, however,
defamation laws are used mostly as a means of “chilling speech.” The mere
threat of defamation proceedings that will require 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 Defamation Ordinance, 2002.[35] The English common law on
the issue may, therefore, be said to have “shrunk” considerably. Nevertheless,
the concepts of the common law have not been ruled out completely. In the
United Kingdom (Defamation Act, 1996), Australia (Queensland Defamation Act,
2005 and New South Wales Defamation Act, 2005) as well as in Canada (British
Columbia), 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 Ordinance has altered a common law
rule.
A 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.[36] The reasons for this are
many and stretch back to the times of the British, who had imposed heavy
court-fee 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 expensive case against the powerful and rich newspapers or the broadcasting
stations. Out of the forty or more reported cases of defamation that have been
heard by the High Courts and the Supreme Court, in the last decade or more, we
have been able to identify only three cases that involve the media.[37].
Article 19 Global Campaign for Freedom of Expression made some
recommendations pertain to the decriminalisation of the offence of defamation
as well as the Defamation Ordinance, 2002. It is to be hoped that some of these
recommendations will be adopted. On the whole, we may say that the Defamation
Ordinance, 2002 is working better than the criminal provisions of the PPC, and
there have been more cases under the Ordinance. If notices served under the
provisions of the Ordinance, 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. Complete codification may,
therefore, be a good idea.
5 Causes of Failure of Law of Torts in
Pakistan
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 required minimum litigation.
Accordingly, heavy court-fee 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 Rs. 25000 and less in
Islamabad. The expensive 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
Development
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. Unfortunately, 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. Lawyers are
not skilled enough to apply common law principles to fill in the gaps in
existing 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, equity 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. Lawyers are mostly concerned with their fee and show selfish
attitude towards clients’ 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. With 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 Doctrines of Champerty and
Maintenance
One
of the major reasons of the neglect of law of torts in
Thus in modern times,
contigent fees are allowed in many states including Australia, Brazil, the
Dominican Republic, France, Greece, Ireland, Japan, New Zealand, United States
and United Kingdom.[44] Such arrangements provide
access to the law courts for those who cannot afford to pay lawyers’ fee and
cost of litigation.
However, in Pakistan these
doctrines still prohibit such arrangements. Considering the position of the
modern states especially United Kingdom, 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.
5.4 No Codification
Sir Fredrick 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 appendix to his book: “A
Bill to define and amend certain parts of the Law of Civil Wrongs.” It consists
of 9 chapters and 73 sections. Chapter VII deals with the tort of nuisance,
that is, damage arising out of public nuisance and the tort of private
nuisance.[45]
It was an excellent effort and worth reading. Perhaps, it can still be used to
codify the law of tort.
One of the reasons of
underdevelopment of law of torts is also its non codification. Litigants are
not familiar with this law since it is uncodified. A 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 exist in
Many branches of
common law were codified by British rulers in India except 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.
6 The Need of Statutory Law on Torts
Codification is a means
through which the masses become familiar with the law. As 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. Defamation Ordinance 2002 is a recent example. The
litigation initiated under Defamation Ordinance 2002 reflects that people are
more concerned about laws that are codified, even though its provisions were
already included in PPC.
In modern times, there is
trend of codifying law of torts. We have instances of European tort law which
is being codified extensively. Tort law of China is also an important example
in this area.[46]
We 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. Statutory law is superior to case law, says Salmond.[47] 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. Major Torts in the Common Law World That
Need to be Implemented
Almost
all of the intentional torts to person are recognised in Pakistan under
criminal law like assualt,[48] battery,[49] false imprisonment,[50] but suit for civil remedy
is very rare.[51]
The tort of intentional infliction of emotional distress is similarly not
covered entirely. Damages 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,[52] which covers trespass and
conversion of property as well.
One 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. Same is the
case with strict liability, which is part of criminal law but not sufficiently
taken up under civil law. Likewise, 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. All 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.
However, the courts in Pakistan have started taking notice of this tort. “Right
of Privacy” is not mentioned in chapter one of the Constitution of Pakistan
discussing fundamental rights. But the courts have discussed Article 14 in
several cases in the context of privacy of home. Article 14(1) says, “The
dignity of man and, subject to law, the privacy of home, shall be inviolable.”
In one significant case, M.D. Tahir, Advocate v. Director, State Bank of
Pakistan, Lahore and 3 others,[53] the courts have discussed
Article 14 in more general way.
In this case State Bank issued a circular to provide information
of remunerative accounts to the CBR (now FBR) in order to help it “widen the
tax net” and “to prevent tax evasion.” The learned Court questioned, in detail,
the authority of the State Bank to issue such a circular, and then held, “Such
eventual consequences 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 Articles 4 and 25 of the Constitution of Islamic Republic of
Pakistan, 1973.” The Court then turned to an examination of the constitutional
aspects of the measure within the context of Article 14. In a highly instructive
discourse, the learned Court expanded the meaning of Article 14 to cover not
only the privacy of the home, but other aspects of the right to privacy. The
Court stated that “This Article of the Constitution corresponds to Article 21
of the Indian Constitution that has been held to be crucial to the functioning
of a democratic and free society.” Discussing the right of privacy in the
context of wire-tapping, privacy of an unchaste woman and other aspects, the
Court 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 tax 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. Attached
to this right is also the tort of privacy. It includes news-gathering related
legal issues and publication related violations. The journalists conduct
news-gathering activities violating the privacy of the individuals.[54] Such 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.”[55]
These acts need to be restricted in Pakistan and this will be possible through
codification of law of torts.
Interference with business relations[56] 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
existing valid contract or valid business expectancy.
Products liability is also one of the important categories of
torts. Stricted 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.
8. Conclusion
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 citizens
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
explained 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 inadequate, for which the
judges and lawyers are equally 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 "Draft Bill of the Law of Civil
Wrongs" is already underway. Once 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 heard---through the law.
References
Basu,
Ananyo. “Torts in India: Dharmic Resignation, Colo- nial Subjugation, or
“Underdevelopment”?” The South Atlantic
Quarterly 100 (2001): 1053–1070.
Bryce, James, ed. Studies in History and Jurisprudence. Vol. 2. Oxford: Clarendon
Press, 1911.
Bushnell,
Christy B. “Champerty is Still no Excuse in Texas: Why Texas Courts (and the
Legislature) Should Uphold Litigation Funding Agreements.” Harvard Law Review 7 (2007): 358–394.
Fisher, H. A. L., ed. The Collected Papers of Frederic William
Maitland: Downing Professor of the Laws of England. Vol. 3. Cambridge:
Cambridge University Press, 1911.
Galanter, Marc. “Legal Torpor: Why So
Little Has Happened in India After the Bhopal Tragedy.” Texas International Law Journal 20 (1985): 273–294.
Geistfeld, Mark A. “Compensation as a
Tort Norm.” In Philo- sophical
Foundations of the Law of Torts, edited by John Oberdiek, 65–85. Oxford:
Oxford University Press, 2001.
Goldberg, John, and Benjamin Zipursky.
“The Moral of Macpher- son.” University
of Pennsylvania Law Review 146 (1998): 1733–1848.
Hershovitz, Scott. “Tort as a Substitute
for Revenge.” In Philosophical
Foundations of the Law of Torts, edited by John Oberdiek, 86–102. Oxford:
Oxford University Press, 2001.
Oberdiek, John. “Introduction:
Philosophical Foundations of the Law of Torts.” In Philosophical Foundations of the Law of Torts, edited by John
Oberdiek, 1–13. Oxford: Oxford University Press, 2001.
Perry, Stephen. “Torts, Rights, and
Risk.” In Philosophical Foundations of
the Law of Torts, edited by John Oberdiek, 38–64. Oxford: Oxford University
Press, 2001.
Postema,
Gerald J. “Introduction: Search for an Explanatory Theory of Torts.” In Philosophy and the Law of Torts, edited
by Gerald J. Postema, 1–21. Cambridge: Cambridge University Press, 2001.
Sheinman, Hanoch. “Tort Law and
Distributive Justice.” In Philosophical
Foundations of the Law of Torts, edited by John Oberdiek, 354–386. Oxford:
Oxford University Press, 2001.
Wharton,
Francis. A Commentary on the Law of
Contracts. Vol. 2. Philadelphia: Kay & Brother, 1882.
Wharton,
Francis. A Treatise on Criminal Law, 8th ed. Vol. 2.
-----------------------
[2]. Stephen Perry, “Torts, Rights, and Risk,”
in Philosophical Foundations of the Law of Torts, ed. John Oberdiek
(Oxford: Oxford University Press, 2001), 38–64.
[3]. Scott Hershovitz, “Tort as a Substitute
for Revenge,” in Philosophical Foundations of the Law of Torts, ed. John
Oberdiek (Oxford: Oxford University Press, 2001), 86–102.
[4]. Mark A. Geistfeld, “Compensation as a
Tort Norm,” in Philosophical Foundations of the Law of Torts, ed. John
Oberdiek (Oxford: Oxford University Press, 2001), 65–85.
[5]. Hanoch Sheinman, “Tort Law and
Distributive Justice,” in Philosophical Foundations of the Law of Torts,
ed. John Oberdiek (Oxford: Oxford University Press, 2001), 354–386.
[6]. Gerald J. Postema, “Introduction: Search
for an Explanatory Theory of Torts,” in Philosophy and the Law of Torts,
ed. Gerald J. Postema (Cambridge: Cambridge University Press, 2001), 1–21.
“Reflecting on these substantive and structural features of torts, a
theoretically inclined observer might entertain the hypothesis that the primary
objective of tort law is to vindicate the moral rights of individuals unjustly
invaded by the culpable actions of others and to hold injurers to their moral
duties to compensate the losses they wrongfully cause their victims. A moral
theory of torts seems to be indicated by the dominant vocabulary of tort. For
to act with careless disregard for the rights and interests of others seems not
only legally wrong but also a moral failing, and people ought to bear the costs
of their moral failings. Tort liability would seem to back up these moral
judgments. It punishes these failings and grants redress to those who suffer
the harm they cause.” Ibid., 2. The dominant theory in the past has been based
on separation of moral vocabulary snd judgements from the law, as in the
writings of Holmes (“Path of the Law” Holmes, 1920) and others. Holmes rminded
us that law has a logic and life of its own, and only confusion results from
taking its vocabulary at face value. According to some writers, therefore, tort
theory must begin its theorizing from a resolutely non-moral quarter. John
Goldberg and Benjamin Zipursky, “The Moral of Macpherson,” University of
Pennsylvania Law Review 146 (1998): 1752–69.
[7]. “The European Group on Tort Law (formerly
also called ‘Tilburg Group’) is a group of scholars in the area of tort law
established in 1992. The group meets regularly to discuss fundamental issues of
tort law liability as well as recent developments and the future directions of
the law of tort. The Group has drafted a collection of Principles of European
Tort Law (PETL) similar to the Principles of European Contract Law drafted by
the European Contract Law Commission ("Lando Commission").”
http://www.egtl.org/ (accessed 15.12.2014). The Group and its various centres
have produced yearbooks on tort and insurance law. See, e.g., Tort and
Insurance Law Yearbook—European Tort Law 2007, Helmut Koziol and Barbara C.
Steininger eds. (Vienna: Springer-Verlag/Wien, 2008).
[8]. Marc Galanter, “Legal Torpor: Why So
Little Has Happened in India After the Bhopal Tragedy,” Texas International
Law Journal 20 (1985): 273–294.
[9]. See, in particular, the sections dealing
with assault, trespass, and defamation in the Pakistan Penal Code, 1860.
[10]. “The phrase ‘equity and good conscience’
was used to embody the principles by which judges were to be guided when
positive rules, statutory or customary, were not forthcoming. To a magistrate
who knew no law at all, these words would mean that he might follow his own
notions of ‘natural justice’ and he would probably give more satisfaction to
suitors than would his more learned brother, trying to apply confused
recollections of Blackstone or Chitty. In commercial matters common sense would
be aided by the usage of traders. In cases of Tort native custom was not often
available, but as the magistrate who dealt out substantial justice would give
what the people had rarely obtained from the native courts, they had no reason
to complain of the change.” James Bryce, ed., Studies in History and
Jurisprudence, vol. 2 (Oxford: Clarendon Press, 1911), vol. 1, p. 118.
[11]. See H. A. L. Fisher, ed., The Collected
Papers of Frederic William Maitland: Downing Professor of the Laws of England,
vol. 3 (Cambridge: Cambridge University Press, 1911), vol. 2, 400 passim.
[12]. Surendra Kumar v. Distt. Board, Nadia, AIR 1942
[13]. Nawal Kishore v. Rameshwar, AIR 1955,
All 585; Kushal Rao v. B. R. G. Rao, AIR 1942 Nag. 52; Dharni Dhar v.
Chandra Shekhar, AIR 1951 All 774; Khusro S. Gandhi v. N.A. Guzdar,
AIR 1970 SC 1468.
[14]. See Judgement Today, Vol. I,
January 1, 1987.
[15]. Waghela Rajsanji v. Sheikh Masluddin, (1667) 14
IA 96; S.N. Roy v. Dinbhandu, 1914 ILR 42 Cal. 469; S. C. Chakravarti
v. R.D. De, AIR 1921 Cal. 1; Tiruvengoda v. Tripurasundari, 1926 ILR
49 Mad 728; Ram Chandran v. S. Khan, AIR 1927 Nag. 75; Babu s/o
Thakur Dhobi v. Subashi, AIR 1942 Nag. 650; Nawal Kishore v. Rameshwar
Nath, 1955 All 594.
[16]. Ananyo Basu, “Torts in
[17]. The Code of Civil Procedure, 1908 Act No.V
of 1908 (21st March 1908) §19 Suits for compensation for wrongs to person or
movables, § 91 Public nuisance.
[18]. The Code of Criminal Procedure, 1898 as
amended by Act 2 of 1997. § 133 Public nuisance.
[19]. Pakistan Penal Code (Act XLV of 1860) §
499 Defamation, § 351 Assault, § 339 Wrongful restraint, § 340 Wrongful Confinement, § 441 Criminal Trespass, § 279-289
Negligence.
[20]. Companies Ordinance, 1984 (Act No. XLVII
of 1984).
[21]. The Workmen’s Compensation Act, 1923 (Act
No. VIII of 1923).
[22]. The Fatal Accidents Act, 1855 (Act No.
XIII of 1855).
[23]. The Provincial Employees Social Security
Ordinance, 1965 (W.P. Ord. X of 1965).
[24]. The Factories (Amendment ) Act 2012 (Act
No. XIV of 2012).
[25]. Pakistan Environmental Protection Act,
1997 (Act No. XXXIV of 1997).
[26]. The
[27]. W.V.H. Rogers, Winfield and Jolowicz:
Tort, 23.
[28]. It is only recently that the government of
Pakistan reduced the court-fee to some extent.
[29]. The Bill is found as an appendix to his
book: “A Bill to define and amend certain parts of the Law of Civil Wrongs.” It
consists of 9 chapters and 73 sections. Chapter VII deals with the tort of
nuisance, that is, damage arising out of public nuisance and the tort of
private nuisance. Pollock, A Treatise on the Law of Torts, 527–83.
[30]. Encyclopaedia Britannica, s.v.
“Defamation.”
[31]. Ibid.
[32]. See chapter XXI of the Pakistan Penal
Code, 1860.
[33]. Article 19 Global Campaign for Free
Expression has laid down the principle that “criminal defamation laws are per
se inconsistent with the guarantee of freedom of expression.” See Principle 4.
The UNESCO sponsored Declaration of Sana’a declared that “disputes involving
the media and/or the media professionals in the exercise of their profession
…should be tried under civil and not criminal codes and procedures.”
Declaration of Sana’a, 11 January 1996, endorsed by the General Conference by
Resolution 34, adopted at the 29th session, 12 November 1997. The rationale
underlying these statements is that when a state declares an act to be a crime,
it shows that the state has a clear interest in “controlling the activity.”
Controlling freedom of expression by the state is not to be approved whatever
the reasons advanced. International courts today are also inclined toward the
exercise of “restraint in applying criminal measures when restricting
fundamental rights,” and international organisations “have made similar calls.”
Article 19 Global Campaign for Free Expression, Memorandum on the Defamation
Ordinance, 2002, 18.
[34]. “Although defamation is a creation of
English law, similar doctrines existed several thousand years ago. In Roman law
abusive chants were capitally punishable. In early English and Germanic law
insults were punished by cutting out the tongue.
As late as the 18th century in
England, only imputation of crime or social disease and casting aspersions on
professional competence constituted slander, and no offenses were added until
the Slander of Women Act in 1891 made imputation of unchastity illegal. French
defamation laws historically have been more severe. An act of 1881, which
inaugurated modern French defamation law, required conspicuous retraction of
libellous material in newspapers and allowed truth as a defence only when
publications concerned public figures. Modern German defamation is similar but
generally allows truth as a defence. In Italy truth seldom excuses defamation,
which is criminally punishable there.” Encyclopaedia Britannica, s.v.
“Defamation.”
[35]. The Defamation Ordinance, 2002 appears to
have relied on a document produced by the Article 19 Global Campaign for Free
Expression Defining Defamation, especially in terms of defining
defamation as well as in other provisions like absolute and qualified
privilege. For example, the words like “tending to lower the esteem in which
they are held within the community, by exposing them to public ridicule or
hatred, or by causing them to be shunned or avoided,” within the definition of
defamation. The Ordinance also appears to rely on the UK Act of 1996.
[36]. The behaviour of the electroninc media
invading the privacy of the people in search for sensational news bears ample
testimony of this.
[37]. These cases are: Hakim Ali v. Messrs
Pakistan Herald Publications (Pvt.) Ltd. through Chief Executive and 4 others,
(PLD 2007 Karachi 415); Sheikh Muhammad Rashid v. Majid Nizami, Editor in
Chief, The Nation and Nawa-e-Waqat, Lahore and another, PLD 2002 SC 514;
and Mst. Kaniz Fatima v. Farooq Tariq and others, PLD 2002 Karachi 20.
[38]. W.V.H. Rogers, Winfield and Jolowicz:
Tort (
[39]. Sections 13(1)(a) and 14(1) of the
Criminal Law Act, 1967 as cited in Ibid.
[40]. Conditional fee means that the client can
pay later, on completion of the court proceedings. There was no problem with
this, and § 58 of the UK Courts and Legal Services Act 1990 recognizes such an
arrangement.
[41]. This regulation came into force on 1st
April 2013.
[42]. Saladini v. Righellis 426
[43]. See, for example, Walter C. Williston,
“Contingent Fee in Canada,” 6 Alta. L. Rev. 184 (1968).
[44]. Herbert M. Kritzer, Risks, Reputations,
and Rewards: Contingency Fee Legal Practice in the United States (Stanford:
Stanford University Press, 2004), 258-259.
[45]. Pollock, A Treatise on the Law of Torts,
527–83.
[46]. Tort Law of the People’s Republic of
[47]. John Salmond, Jurisprudence, 12th edition (Sweet
& Maxwell, 1966), 129.
[48]. Section 351 PPC.
[49]. See, Section 350 Criminal Force, PPC.
[50]. See, Chapter XVIA, PPC, Section 339
Wrongful restraint and Section 340 Wrongful confinement.
[51]. §19 Suits for compensation for wrongs to
person or movables, CPC.
[52]. Sections 16-20, CPC deal with territorial
jurisdiction for filing suits concerning movable and immovable property.
[53]. 2004 CLD 1680 (Lahore)
[54]. This occurs when the journalist
unreasonably intrudes—physically, electronically, or otherwise—upon an area in
which that person has a reasonable expectation of privacy. These news-gathering
activities include trespass, intrusion, surveillance, and recording of
conversations/eavesdropping.
[55]. Publication related violation includes two
torts: public disclosure of private facts and false light.
[56]. It is sometimes also called
“Tortious Interference of Business” or “Interference with Prospective
Contract”.