Law students and law graduates in Pakistan are reporting for JURIST on events in that country impacting its legal system. Izhar Ahmed Khan is a 2022 LL.B. graduate of the Pakistan College of Law (University of London International Program). He files this from Lahore.
The recent monsoon rains in Pakistan have proved fatal to the lives and properties of many people across the country. According to a report issued by the National Disaster Management Authority (NDMA), from 25th June 2023 to 30th July 2023, at least 179 people, including women and children, are dead and 264 people are injured due to various rain-related incidents, mainly involving electrocution and building collapse. Additionally, at least 1594 houses are damaged, with 1328 partially and 267 fully destroyed, and 380 livestock lost.
Such horrifying impacts of the monsoon rains in Pakistan are not unprecedented. The country has a history of rains and flood destructions. Every time such devastations occur, the usual narratives of ‘unprecedented rains’, climate change’, and ‘act of God’ come from the state officials, attempting to absolve the state’s institutions from the responsibility to protect its citizens. While God or unprecedented rains due to climate change may play a role, it is essential to recognize that negligence by public bodies has also significantly contributed to the extent of the harm. Recent incidents during the rain stand witness to the fact that the harm was mainly caused due to the negligent conduct of public bodies. Had they been careful and vigilant in the performance of their duties, much of the harm could have been avoided. For example, on July 20, 2023, at least four people, including two children, died of electrocution during rain in Lahore. Two children died of electric shock while playing in rainwater in Charar Pind and in another incident, two men died of electrocution while walking through rainwater. Rescue officials said that the incidents occurred due to breakage of power transmission lines. After the reported incidents, the Lahore Electric Supply Company (LESCO) chief executive officer suspended an officer for his negligent conduct in the circumstances.
In light of these circumstances, it becomes essential to address the question of whether the state institutions are held liable for the tortious acts committed by their officers in the performance of their duties. Or, in other words, does the law compensate citizens for the wrong done to them due to breaches of duty by public bodies?
As far as the Constitution of Pakistan 1973 is concerned, there is no debate that the scheme of the Constitution has made the State through its instrumentalities and functionaries fully responsible for protecting and safeguarding the fundamental rights of its citizens. The Supreme Court of Pakistan in the case titled Habib Ullah Energy Limited and another v. WAPDA through Chairman and others [PLD 2014 SC 47] has emphasized that the basis of the power of State functionaries is the delegation of authority by the principal who are the people of Pakistan. In this regard the state, as fiduciaries and trustees appointed by the people of Pakistan to exercise powers exclusively in their interest, is accountable for any breach and the same is not condonable.
However, despite the legal basis provided in the constitution for the protection of citizens against state violations, the present legal structure is still non-cooperative in adjusting civil claims of citizens against public bodies for the breach of their duty of care towards citizens. There is no parliamentary statute, like the Crown Proceedings Act 1947 in the UK and Federal Torts Claims Act 1946 in the USA, that provides citizens the right to pursue tortious remedies against the government, nor is there any clear precedent set by the superior courts of the country that establishes the same. In fact, Article 212 (b) of the Constitution, which makes it imperative for the Parliament to establish administrative courts or tribunals to adjudicate the tortious claims arising from governmental actions, remains unfulfilled. The Parliament has yet to pass relevant legislation to create a competent forum that would deal with the tortious claims of the citizens of Pakistan against the state. Alongside, under the ‘good faith’ immunity clauses incorporated in most of the parliamentary statutes, the state institutions and their officers are provided immunity from civil claims arising from negligent or harmful actions done by them in the performance of their duties.
In view of the above, it seems that the lack of development of tort law and statutory immunities provided to public officers effectively bars citizens of Pakistan from pursuing any tortious claim against the state to protect their rights. As such, the abuse of state institutions continues without any notice, leaving citizens vulnerable to the consequences of negligence and misconduct. To address these issues and ensure that citizens’ rights are protected, there is a pressing need for reform in the legal structure to bridge the gap between the constitutional mandate of protecting citizens’ rights and the lack of a robust legal framework for tort claims against the state. If no action is taken in this regard, then no wonder that the people of Pakistan will continue suffer at the hands of state institutions, and the blame will lie on God or nature for such suffering.
