Aum Badhum’s favourite cow Tsherim broke the fence and grazed over an entire plot of paddy seedlings of Aap Sherub in Toedpisa, Punakha. That evening the two met with their village representative and the issue was resolved amicably.
When paddy transplantation time came, the former, as agreed earlier, compensated Aap Sherub adequately. The incident took place more than a decade ago and the neighbours live in harmony to this day.
But if either of the two did not agree to the settlement, lawyers say there is no specific law that caters to such damage or civil liability cases.
So the proposal of the National Council’s legislative committee to enact a civil liability or torts Act makes sense. If not late, it is certainly timely.
The committee has done its research and the findings expose the stark and sad reality that we have been living – one that victimises innocent people, families and communities, even the state.
However the problems today are not as simple as compensating with a backload of paddy seedlings which was in the case of Aum Badhum and Aap Sherub some 10 years ago. For instance, young families have lost their only child in the national referral hospital despite the suspicions they raised there was no legal recourse, the legislative committee pointed out.
The primary aim of torts law is to provide relief to injured parties for harms caused by others. It also imposes liability on parties responsible for the harm and deters others from committing harmful acts. The Act shifts the burden of loss from the injured party to the party who is at fault or better suited to bear the burden of the loss.
The tort Act is necessary to institute and enhance corrective and restorative justice for the victims and this proposed legislation will bring about accountability in the system. The case of a woman injured when an electric pole collapsed will be an open and shut case. At present, the only way the woman will get compensated is by fighting a criminal case in court. Lawyers say, otherwise, there is no hope.
The simple lesson from the above anecdote is that our society had a system to fulfil the duty of care placed on the one responsible. If the act is enacted anytime soon, it will go a long way in strengthening such customary ways of resolving disputes in the communities to the national level.
Our society has a hope to become more just and the rule of law will get a better chance with such an Act. For now, even if the judge has the will to deliver justice, the law fails.