Demands of tort law being integrated into our legal system are far and wide -- demands which have yet to be met, unfortunately. Some aspects of tort law, however, are being incorporated in judgments passed by the court, paving the legal way for tort law in Bangladesh to become fully applicable.
In recent years, the judiciary has taken a stance in applying common tort law principles in road accident cases and issues involving negligence. The concept of tort liability, vicarious liability, and other ideas borrowed from tort law are gradually being put to use in the legal system in Bangladesh.
The case of Jihad
CCB Foundation v The Government of Bangladesh, can be considered a landmark case in not only tort law but also in constitutional torts. It is the case of Jihad, a four-year-old boy who fell down an uncovered shaft on December 2014. The Fire Service rescue team failed to trace any life-form in the pipe after hours of effort, let alone find the body of the boy. An amateur local group with a home-made detection device, later, pulled the body of an already deceased Jihad out of the shaft.
The court found Bangladesh Railway and Fire Service and Civil Defense negligent in their duties. Interestingly, the principle of determining negligence in tort law was applied here. Applying the maxim res ipsa loquitur (“the thing speaks for itself”) and strict liability, the judges found duty of care and a breach to that duty.
Since the fundamental rights of Jihad were violated by the government, the court awarded compensation to his family for their loss. The infringement of right to life and constitutional remedy against the government, in this case, contributes greatly to the realm of constitutional tort that still remains in a rudimentary form in our legal framework.
Justice Farah Mahbub wrote an organised and argumentative judgment raising an important question on whether a claim of compensation can be made against public authority for breach of constitutional duty.
Article 146 makes all the difference
The honourable judge observed that, “Article 146 of the Constitution does not make any distinction between sovereign and non-sovereign acts or makes any reference to the extent of liability of the government and, thus, the power to grant compensation against public authority is not barred by our Constitution.”
This observation is of paramount importance, given that this interpretation of Article 146 allows the government to be sued for any act committed wrongly by a government servant or negligent omission of duty on their part.
Unlike most other judgments, reason prevailed in favour of awarding monetary compensation. The court discussed on the constitutional jurisdiction to grant pecuniary relief, but didn’t explain the mechanism of measuring the compensation amount.
The judiciary is performing their part in dispensing justice through the concept of tort law. But policy-makers too must participate by introducing it in Bangladesh
How to compensate for death?
Usually, the earnings of the deceased at the time of death, future prospects, life expectancy, and other key aspects are considered in formulating a figure, but certain aspects of life are beyond calculation.
Owing to Jihad’s untimely death, the calculable pecuniary loss also integrates damages which are non-calculable, ie suffering, pain, and grief. The determining mechanism for the lump sum awarded in this case still remains ambiguous.
On the other hand, while scrutinising the submitted facts, the court examined the annual expenditure of Civil Defense Authority and expressed its astonishment. Although the court is bound to conduct inspection, the court still should have been reticent on the matter of choosing what to be bought or should have been bought by an executive body.
This overstepping tendency of the court is very common in judicial activism. The court should not get involved with executive decisions by making remarks -- unless or until the question of law and legality becomes intertwined. The duty of the court is to judge the lawfulness of the activities, not to question the merit of those activities.
In establishing the gateway for tort law, the judiciary must act meticulously in such critical circumstances. More cases must reach the court in order for the judge to entertain them and establish new principles that may enrich the case laws related to tort in our country.
Hence, the Jihad case is merely an addition to the little number of successful tort litigation in Bangladesh.
Justice Sharifuddin Chaklader ingeniously anticipated the importance of tort law in the case of Bangladesh Beverage Industries Ltd v Rowshan Akhter and others.
In 2010, he observed that, “this law in our country, more or less, is on book, not in practice. No one comes forward for invoking this law and, as a result, we are unable to protect the lives and properties of the citizens who have lost their lives in accidents. If this law is practiced, then it is our considered view that, at least, deaths by accident can be minimised.”
The judiciary is performing their part in dispensing justice through the concept of tort law. But policy-makers too must participate by introducing it in Bangladesh. At the same time, misapplying these laws diminishes their applicability. Therefore, tort principles and elements must be implicated cautiously.
Raihan Rahman Rafid is a freelance contributor.