Monday, May 20, 2024


Dhaka Tribune

Wrongs without remedies

How the introduction of constitutional tort tips the scale to favour citizens

Update : 07 Feb 2024, 02:06 PM

Tort law, a cornerstone of justice in common law systems, has yet to find its footing in Bangladesh. As a field of law, tort deals with civil wrongs -- however, something worth noting is that every tort is a civil wrong, but all civil wrongs are not tort. The damages in tort are unliquidated, which means they are not pre-decided. There are many kinds of acts which are not treated as a crime directly, but in consequence of such acts other innocent persons may fall victim to any serious injury.

The intricate nature of civil wrongs is such that every act cannot be specifically codified within specific legal provisions. That is why, by using a judicial mind and applying the idea of “equity,” such disputes can be resolved with minimal friction.

The application of tort law is important for ensuring justice, and the goal of tort law is to protect individuals from the wrongdoings of others and to make remedies for the wrongs done to them, while its primary purpose is to compensate full damages for established injuries.

A new wing of tort law has been introduced now: Constitutional tort. Constitutional tort makes the state authority vicariously liable for the violation of any constitutional right of a citizen, while common tort encompasses civil wrongs causing harm between private parties under traditional legal principles. 

Unfortunately, tort law and its practical application is not very familiar with litigants, in fact it’s rather uncommon for many legal practitioners to know of as well. Unfortunately, in Bangladesh, litigants are all but discouraged from appearing before the court due to a variety of reasons, this leads to a scenario where most citizens are completely in the dark regarding their legal rights leading to a lack of legal engagement in the public sphere, which is further exacerbated by prolonged processes when it comes to civil suits.

However, the application of tort law in other nations is fairly common, even for the most peculiar of cases, circumstances where Bangladeshis would never even think to seek a legal recourse for. One such example is the case of Liebeck v McDonald's: In 1992, while sitting in a car in Albuquerque, New Mexico, 79-year-old Stella Liebeck was burned by hot McDonald's coffee. She had placed the cup between her legs and removed the lid to add cream and sugar when the spill occurred, scalding her and causing third-degree burns. Liebeck won the case, receiving a significant settlement, and the incident sparked debates about personal responsibility and the need for product warnings. McDonald’s was held liable and the crucial takeaway from the whole affair was that their coffee was hotter than others’ and that no warning labels were provided to point that out.

Can you even imagine something like this happening in Bangladesh?

Such unconventional cases may not be possible to be covered by traditional, constitutional tort; therefore, the practice of general common tort is necessary. “Ubi jus ibi remedium” is a fairly well known legal principle that roughly translates to “there is no wrong without a remedy” -- tort laws are the best ways to make sure that wrongdoings are followed swiftly by remedies.  

For tort laws to become more popular within our legal landscape, there is no alternative to training our judges and lawyers in the lower court -- now it is time to establish a dedicated and speedy tort litigation bench in lower court. 


Shafiqul Islam is a freelance contributor.

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