Many would insist that the individuals upon whom punitive damages should be imposed are the owners of Ali Enterprises, the factory in question. I believe this sentiment is misplaced. The owners of the factory are also victims. Though there have been several allegations raised against them (e.g. that the exits were kept locked from the outside on that fateful day) some appear to have been falsified by the evidence on record. Moreover, to impose penalties upon them for failing to operate the factory per code, would be to impose upon them a burden heavier than that which other factory owners in the same vicinity are expected to follow. The factors which led to this gruesome incident are systemic and not isolated. If, God forbid, another fire were to start in a similar factory in the near future, it is quite likely that the same result may ensue.

So who does one blame, when such an incident takes place? In any civilized nation, the proper recourse would be against the administration which allowed the incident to occur. There’s been some ‘passing of the buck’ recently between the S.I.T.E. Administration and the Sindh Building Control Authority as to who was responsible for inspecting and approving the building. But this is a question of fact (which pertains to the location of the premises) and therefore, not one over which there can be any lengthy or complex debate. Even if the factory was being run illegally and without official approval or inspection, there is still culpability on the basis of the relevant authority’s failure to have taken notice of the structure. A second likely target of punitive damages would be the fire services (who failed to arrive at the scene promptly and take any material action), and if it can be established that they were hopelessly unequipped and untrained, then the authority to whom they are directly responsible. A third target could potentially be the Employees Old-Age Benefits Institute, which knew of large-scale statutory violations occurring at the premises but remained silent.

The appropriate remedy therefore, for the heirs of the victims to pursue, would be a claim for punitive damages against those authorities who allow such buildings to remain standing, and those whose responsibility it is to prevent such incidents from occurring. But no lawyer would ever advise such a course of action to the victims’ families. And it is for one very simple reason: it is far too easy for such men to game the system. A claim for damages, such as this one, could lazily meander towards its uncertain conclusion for decades. By the time any money is actually awarded, countless others may perish in similar incidents. Moreover, the heirs of the victims could well be deceased themselves. This state of affairs is directly attributable to the failure of the court system.

This is not a situation in which the ‘suo moto’ procedure, popularised in recent years by its rampant abuse, can be of any benefit. A civil claim for damages such as this, requires the detailed recording of evidence and a principled judgment and decree which assigns blame where blame is due. Neither of these can be achieved through ‘suo moto’. Moreover, why should the families of the victims have to depend upon the fortunate interdiction of a benevolent overseer, rather than upon their constitutionally guaranteed birth-right to access the legal system on their own terms.

It is both frustrating and shameful that our court system has become so degraded that it is of absolutely no use to those who actually need it. It is all the more shameful that this failure persists despite the opportunity that arose in 2008. At its peak, the Lawyers’ Movement generated a massive public mandate for change. It was a mandate which could have been used to reform the system altogether: the manner in which evidence is recorded and claims are heard and decided; the manner in which appeals and petition are heard. It was a mandate which had the potential to make a systematic change in the way that ordinary Pakistanis access and utilise the legal system, one which could have made the court system relevant and meaningful. It was a mandate that was squandered.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.