Importance of Tort Act in restoring justice
Tuesday, 9 June 2009
M S Siddiquii
IT may be hard to believe that human beings in the Stone Age were living just like animals in jungles and caves. They learnt the modern way of living through constant efforts and innovations by the entrepreneurs. The entrepreneurs are inclined to take risks for mental satisfaction, name, fame, power and status. The society which encourages and cultivates entrepreneurs develops at a faster rate. There are many kinds of entrepreneurs like: Social Entrepreneurs, Rural Entrepreneurs, Internationals Entrepreneurs, Business entrepreneurs etc. Dr Yunus and Fazle Hossain Abed are examples for the whole world. There are many innovators in science, education, industry etc. Bangladesh has a rather rocky ground for the entrepreneurs. They have to live and survive against many odds. There are few people on this planet opposed to awarding Nobel peace prize to Dr Mohammad Younus. Unfortunately all of them live in this part of planet i. e. in Bangladesh. We may study to know reaction of Dr Yunus that the people of his country oppose him.
The business- entrepreneurs are in the worst situation in terms of social, political and legal point of views. Until and unless we respect the productive entrepreneurs more compared with the unproductive or destructive ones, the society will not advance. But the society has a very different approach towards business entrepreneurs.
Industrial activity is the most essential as well as beneficial activity for the modern human society. The industrial units are the real place of worship which provide livelihood to the people and generate real wealth for the masses. The society which supports entrepreneurs and new industrial units becomes richer at faster rate compared with the society which does not do so.
Continuous investment in new units of industry and business are needed and desired by the society to fulfil the aspirations of the entrepreneurship. The resultant additional benefits are wealth creation, employment and better quality of life for the masses. Hence the same are supported, directed and implemented by the Government. The Constitution, Five year plan or Poverty Reduction Strategy Paper (PRSP), Industrial policy etc., lay down such activities as statutory duties of the Government and all its functionaries. Accordingly several enactments and legal provisions support such creations including expansion and diversifications.
The industrial sickness comes simultaneously with investment. Sickness in the industrial units is not a new phenomenon in the developing countries and also in industrially developed countries of the world. An industrial unit may face a number of odds during its implementation and operation stage because of a number of factors in the environment - internal and external. The sick industries are unable to utilise the production capacity or unable to produce products and services. The sickness has been acute and adversely affecting production and employment in the country, besides other socio-economic repercussions. But sickness assuming an epidemic shape causes concern for the policy makers and stakeholders in some of the countries including Bangladesh.
On the other hand, the financial sector in Bangladesh is passing through a crucial situation. The economy has a burden of huge bad loan. The volume of defaulted loans in the banking system rose above Tk 230 billion till date.
The situation prompted the government to pass Artha Rin Adalat Act 2003 (ARA Act) and also update the Insolvency Act and curtail certain privileges like further loan, denial of any public office, barring participation in any legislative and local government election etc., though amending a number of other acts.
The bankers are protected by the laws for all of their wilful and non-wilful acts. They can advance loan and in case of default file case against borrower and all the legal costs of bank are used to debit on account of borrower and calculate the interest. The process will continue but the net outcome known to all of us that the bad debt is increasing day by day.
But unfortunately there is hardly any remedy or protection of borrowers as the ARA act is a one-way law and only a banker can sue the borrowers and the courts have no jurisdiction to listen to borrowers. The outcome and Judgment of cases are known to all concerned. The judges can give judgment without any virtual trial.
The present system of adjudication between borrower and bank is heavily loaded in favour of lenders. This is highly against equity, justice and good conscience. The litigation starts when the borrower is unable to pay the interest on loans or unable to pay the instalments of the loans. In most of the cases, it happens when his business or industry becomes sick or is closed. Many a time, such situation arises due to circumstances beyond his control. Thus when the borrower is having acute shortage of finances, the recovery suit is filed by the lenders.
By this time, some of the financially strong borrowers filed counter-claims against the banks for negligence both wilful and non-wilful, under other laws like tort based on common law. Unfortunately there is no law of tort and there is no convention or reference of such legal decision. Court cannot consider the mistake, carelessness or other offence or violation of lending rule of the Bangladesh Bank or banks' own lending guideline. The judicial system also seems not willing to accept such counter claim.
The artho court is unable to examine the loan application, loan sanction process, loan operation, disbursement process during implementation of project and overall supervision and monitoring of whole operation of the project by the Bank. Unfortunately ARA Act is a restricted law and there is no Tort act even for practice or convention of application of Tort rule in case of tortuous offence. The application of the Law of Torts could make the scenario totally different from present status.
During the Pakistan period and after independence for last 38 years, had we paid proper and serious attention to the application of law of torts along with improving the management of the civil courts, the majority of government bureaucracy and the politicians would have not been so irresponsible, so unaccountable and so corrupt as at present and our nation and our society would have been somewhere else. Our inaction has made our next generation to suffer. There is a recent awareness about pollution of the rivers around Dhaka city. These are really harmful and many people are suffering from the acts of some irresponsible people. At least we should wake up now and exercise our right of legal defence by way of counterclaim.
In the developed countries, the law of torts occupies topmost position. In the USA, there is separate Bar Association of Tort Lawyers. In our country, all the advocates read this law only in their law classes in the college.
A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or "liable," for those injuries. Tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another's injury. Torts cover intentional acts and accidents. In contrast to criminal law (in which the offence is against the State and the State is the plaintiff), in tort law the offence is against a person and that person is the plaintiff.
One of the main topics of the substance of tort law is determining the "standard of care" -- a legal phrase that means distinguishing between when conduct is or is not tortuous.
In much of the western world, the touchstone of tort liability is negligence. If the injured party cannot prove that the person believed to have caused the injury acted with negligence, at the very least, tort law will not compensate them. Tort law also recognises intentional torts and strict liability, which apply to defendants who engage in certain actions.
In tort law, injury is defined broadly. Injury does not just mean a physical injury; Injuries in tort law reflect any invasion of any number of individual "interests." Interests in prospective economic advantages from contracts can also be injured and become the subject of tort actions. A number of situations caused by parties in a contractual relationship may nevertheless be tort rather than contract claims, such as breach of fiduciary duty.
The law of torts can be categorised as part of the law of obligations, but unlike voluntarily assumed obligations (such as those of contract, or trust), the duties imposed by the law of torts apply to those entire subject to the relevant jurisdiction.
Torts may be categorised in a number of ways: one such is to divide them into Negligence Torts, and Intentional Torts.
The dominant action in tort is negligence. The tort of negligence provides a cause of action leading to damages,
Among intentional torts may be certain torts arising out of the occupation or use of land. One such is the tort of nuisance, which connotes strict liability for a neighbour who interferes with another's enjoyment of his real property.
Workers' compensation laws were a legislative response to the common law placing limits on the extent to which employees could sue their employers in respect of injuries sustained during employment.
Negligence is a tort which depends on the existence of a breach of duty of care owed by one person to another. A statutory tort is like any other, in that it imposes duties on private or public parties; however they are created by the legislature, not the courts. Another tort is nuisance. It traditionally used in three ways: (1) to describe an activity or condition that is harmful or annoying to others (e.g., indecent conduct, a rubbish heap or a smoking chimney); (2) to describe the harm caused by the aforementioned activity or condition (e.g., loud noises or objectionable odour); and (3) to describe a legal liability that arises from the combination of the two. The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (i.e., private nuisance) or with the rights of the general public (i.e., public nuisance).
The writer is part time lecturer, Leading University. He can be reached at e-mail: shah@banglachemcial.com
IT may be hard to believe that human beings in the Stone Age were living just like animals in jungles and caves. They learnt the modern way of living through constant efforts and innovations by the entrepreneurs. The entrepreneurs are inclined to take risks for mental satisfaction, name, fame, power and status. The society which encourages and cultivates entrepreneurs develops at a faster rate. There are many kinds of entrepreneurs like: Social Entrepreneurs, Rural Entrepreneurs, Internationals Entrepreneurs, Business entrepreneurs etc. Dr Yunus and Fazle Hossain Abed are examples for the whole world. There are many innovators in science, education, industry etc. Bangladesh has a rather rocky ground for the entrepreneurs. They have to live and survive against many odds. There are few people on this planet opposed to awarding Nobel peace prize to Dr Mohammad Younus. Unfortunately all of them live in this part of planet i. e. in Bangladesh. We may study to know reaction of Dr Yunus that the people of his country oppose him.
The business- entrepreneurs are in the worst situation in terms of social, political and legal point of views. Until and unless we respect the productive entrepreneurs more compared with the unproductive or destructive ones, the society will not advance. But the society has a very different approach towards business entrepreneurs.
Industrial activity is the most essential as well as beneficial activity for the modern human society. The industrial units are the real place of worship which provide livelihood to the people and generate real wealth for the masses. The society which supports entrepreneurs and new industrial units becomes richer at faster rate compared with the society which does not do so.
Continuous investment in new units of industry and business are needed and desired by the society to fulfil the aspirations of the entrepreneurship. The resultant additional benefits are wealth creation, employment and better quality of life for the masses. Hence the same are supported, directed and implemented by the Government. The Constitution, Five year plan or Poverty Reduction Strategy Paper (PRSP), Industrial policy etc., lay down such activities as statutory duties of the Government and all its functionaries. Accordingly several enactments and legal provisions support such creations including expansion and diversifications.
The industrial sickness comes simultaneously with investment. Sickness in the industrial units is not a new phenomenon in the developing countries and also in industrially developed countries of the world. An industrial unit may face a number of odds during its implementation and operation stage because of a number of factors in the environment - internal and external. The sick industries are unable to utilise the production capacity or unable to produce products and services. The sickness has been acute and adversely affecting production and employment in the country, besides other socio-economic repercussions. But sickness assuming an epidemic shape causes concern for the policy makers and stakeholders in some of the countries including Bangladesh.
On the other hand, the financial sector in Bangladesh is passing through a crucial situation. The economy has a burden of huge bad loan. The volume of defaulted loans in the banking system rose above Tk 230 billion till date.
The situation prompted the government to pass Artha Rin Adalat Act 2003 (ARA Act) and also update the Insolvency Act and curtail certain privileges like further loan, denial of any public office, barring participation in any legislative and local government election etc., though amending a number of other acts.
The bankers are protected by the laws for all of their wilful and non-wilful acts. They can advance loan and in case of default file case against borrower and all the legal costs of bank are used to debit on account of borrower and calculate the interest. The process will continue but the net outcome known to all of us that the bad debt is increasing day by day.
But unfortunately there is hardly any remedy or protection of borrowers as the ARA act is a one-way law and only a banker can sue the borrowers and the courts have no jurisdiction to listen to borrowers. The outcome and Judgment of cases are known to all concerned. The judges can give judgment without any virtual trial.
The present system of adjudication between borrower and bank is heavily loaded in favour of lenders. This is highly against equity, justice and good conscience. The litigation starts when the borrower is unable to pay the interest on loans or unable to pay the instalments of the loans. In most of the cases, it happens when his business or industry becomes sick or is closed. Many a time, such situation arises due to circumstances beyond his control. Thus when the borrower is having acute shortage of finances, the recovery suit is filed by the lenders.
By this time, some of the financially strong borrowers filed counter-claims against the banks for negligence both wilful and non-wilful, under other laws like tort based on common law. Unfortunately there is no law of tort and there is no convention or reference of such legal decision. Court cannot consider the mistake, carelessness or other offence or violation of lending rule of the Bangladesh Bank or banks' own lending guideline. The judicial system also seems not willing to accept such counter claim.
The artho court is unable to examine the loan application, loan sanction process, loan operation, disbursement process during implementation of project and overall supervision and monitoring of whole operation of the project by the Bank. Unfortunately ARA Act is a restricted law and there is no Tort act even for practice or convention of application of Tort rule in case of tortuous offence. The application of the Law of Torts could make the scenario totally different from present status.
During the Pakistan period and after independence for last 38 years, had we paid proper and serious attention to the application of law of torts along with improving the management of the civil courts, the majority of government bureaucracy and the politicians would have not been so irresponsible, so unaccountable and so corrupt as at present and our nation and our society would have been somewhere else. Our inaction has made our next generation to suffer. There is a recent awareness about pollution of the rivers around Dhaka city. These are really harmful and many people are suffering from the acts of some irresponsible people. At least we should wake up now and exercise our right of legal defence by way of counterclaim.
In the developed countries, the law of torts occupies topmost position. In the USA, there is separate Bar Association of Tort Lawyers. In our country, all the advocates read this law only in their law classes in the college.
A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or "liable," for those injuries. Tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another's injury. Torts cover intentional acts and accidents. In contrast to criminal law (in which the offence is against the State and the State is the plaintiff), in tort law the offence is against a person and that person is the plaintiff.
One of the main topics of the substance of tort law is determining the "standard of care" -- a legal phrase that means distinguishing between when conduct is or is not tortuous.
In much of the western world, the touchstone of tort liability is negligence. If the injured party cannot prove that the person believed to have caused the injury acted with negligence, at the very least, tort law will not compensate them. Tort law also recognises intentional torts and strict liability, which apply to defendants who engage in certain actions.
In tort law, injury is defined broadly. Injury does not just mean a physical injury; Injuries in tort law reflect any invasion of any number of individual "interests." Interests in prospective economic advantages from contracts can also be injured and become the subject of tort actions. A number of situations caused by parties in a contractual relationship may nevertheless be tort rather than contract claims, such as breach of fiduciary duty.
The law of torts can be categorised as part of the law of obligations, but unlike voluntarily assumed obligations (such as those of contract, or trust), the duties imposed by the law of torts apply to those entire subject to the relevant jurisdiction.
Torts may be categorised in a number of ways: one such is to divide them into Negligence Torts, and Intentional Torts.
The dominant action in tort is negligence. The tort of negligence provides a cause of action leading to damages,
Among intentional torts may be certain torts arising out of the occupation or use of land. One such is the tort of nuisance, which connotes strict liability for a neighbour who interferes with another's enjoyment of his real property.
Workers' compensation laws were a legislative response to the common law placing limits on the extent to which employees could sue their employers in respect of injuries sustained during employment.
Negligence is a tort which depends on the existence of a breach of duty of care owed by one person to another. A statutory tort is like any other, in that it imposes duties on private or public parties; however they are created by the legislature, not the courts. Another tort is nuisance. It traditionally used in three ways: (1) to describe an activity or condition that is harmful or annoying to others (e.g., indecent conduct, a rubbish heap or a smoking chimney); (2) to describe the harm caused by the aforementioned activity or condition (e.g., loud noises or objectionable odour); and (3) to describe a legal liability that arises from the combination of the two. The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (i.e., private nuisance) or with the rights of the general public (i.e., public nuisance).
The writer is part time lecturer, Leading University. He can be reached at e-mail: shah@banglachemcial.com