Litigation in Pakistan
The Pakistani legal system has several influences. It applies the British common law system, Islamic traditions, and its practitioners may also cite law from Indian and American sources. So I was excited to speak with Sameer Khosa, a partner at Axis Law Chambers in Lahore, to learn about what litigation is like in Pakistan.
Why should you continue reading this post about litigation in Pakistan?
You’re curious about the country’s effort to require filings be in Urdu despite a popular preference for English.
You’re interested in courtroom attire requirements that differ in the winter months.
It’s the first step towards reading an actual Pakistani complaint that is linked to this post.
Sameer Khosa is a litigator at Axis Law Chambers in Lahore.
Can you tell me about the kinds of disputes you handle in your legal practice?
It is hard to quantify one area of legal practice, but I suppose most of the work that I would be doing would be commercial and contractual disputes either between commercial entities or between commercial entities and the state (administrative agencies).
A significant portion of my work also involves constitutional litigation – mostly arising out of commercial contexts.
What type of clients do you generally represent in disputes?
There is no hard and fast rule, but I generally represent businesses (large and small).
A majority of my clients right now can be considered medium sized enterprises, IT start-ups, and not for profit entities.
In some matters I also represent public sector entities (such as the national electricity transmission and distribution company, and the oil and gas sector regulatory authority).
Besides Microsoft Office, what software do you use in your practice?
Toggl – for time tracking
Slack – for internal team messaging
GSuite – We use many of the features provided within GSuite.
What books and websites do you use for legal research?
There are obviously the Pakistani case law reports (of which there are many kinds but the oldest is the Pakistan Law Digest (PLD)). Apart from those there are the general local, Pakistani reference books.
In terms of websites, there is a website (www.pakistanlawsite.com) which is used for case law research. Other than that, we also use Westlaw and LexisNexis because case law from other common law jurisdictions has persuasive value. There is also the Indian law website of https://www.manupatrafast.com/ which is used often.
Image credit: https://en.wikipedia.org/wiki/Judiciary_of_Pakistan#/media/File:PK_Karachi_asv2020-02_img34_Sindh_High_Court.jpg.
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
There is no proper mechanism for electronic filing of pleadings yet.
Does Pakistan have specialized courts that only hear commercial cases?
Under Pakistan’s company law (Companies Act, 2017) there are specialized company courts, although the High Court of the province operates as the company court also.
Similarly, there are separate banking courts under the Financial Institutions (Recover of Finances) Ordinance, 2001.
Who decides the facts in a commercial case? Is it a judge or a jury?
There are no jury trials in Pakistan so facts are decided by a judge.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work? Can you share a link to a publicly available one?
The initial plaint / suit or petition can range from 5 pages to 20 pages depending on the subject matter. A link to a recent constitutional petition that was filed challenging the practice of virginity testing on women who allege that they have been raped is available here: https://drive.google.com/file/d/1SI3oYZKYzam09WjLNoukUdPwAFjaxFFV/view?fbclid=IwAR0j4UUAj5BIn0P9nuyLeEIXnsRT1sY8OauXdbkg4Rj7FE856F1y9YEJ1V8
Generally speaking, how long does it take for a case to go from complaint to judgment?
Generally, it can take 18-24 months for the complaint to judgment.
The Supreme Court of Pakistan issues decisions in English, but Pakistan has multiple official and local languages. Are all court filings and proceedings in English? How does the legal system accommodate people who speak different languages?
As per article 251 of the Pakistani constitution, the national language is Urdu. Sub article (2) of article 251 allows for the use of English as an official language “until arrangements are made for its replacement by Urdu.”
Although the constitution had envisaged a period of 15 years for this exercise, currently English is still used as an official language. Most court filings at the Supreme and High Court levels are in English. Trial courts accept filings in English and Urdu. There was a judgment of the Supreme Court a few years ago holding that court filings must now be in Urdu but practically, little has changed so far.
You studied law in the United States. In your experience, do the elements of common law claims in Pakistan differ substantially from claims in the United States or England?
Yes, there is significant similarity. Many common law claims also exist in Pakistani law and were generally codified in statute by the British. Pakistan also generally follows the common law tradition of reasoning. However, in some respects, statutory interventions and the need for laws to be consistent with Islam means that some common law claims are not available under Pakistani law.
Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?
Evidence is exchanged through oral testimony and tendering / exhibiting original documents as part of the witness’ evidence. We do not get to interview opposing witnesses before trial.
If you win, does the other side reimburse your attorneys’ fees?
Although costs can be awarded, they are rarely ever done so and parties usually bear their own costs.
Are the courts in Pakistan open to the public? Can ordinary people watch a commercial trial?
Yes, courts are open to the public and ordinary people can watch a commercial trial.
Do you believe that Pakistani courts have a particular strength for resolving commercial disputes? How about a weakness? What are they?
The main weakness is that of delays which are endemic in the system. It can take a long time to resolve disputes and that often discourages parties from relying on formal judicial dispute resolution and encourages informal settlements.
How often do you go to the courthouse?
Pre-covid I was in the court almost every day of the week, or a few times a week.
When you are there, do you need to wear a special robe or wig?
We do not need to wear a wig, but in the winter months a robe / gown is required to be worn in the High Court.