QB-2022-002648 - [2025] EWHC 2565 (KB)

The first publication

In addition to the points already made concerning the first publication, the following points arise. The Defendant’s pleaded case with regard to this publication is that the “strenuous efforts” that he made to verify the allegation that the Claimant was interfering in elections by taking “complete control of the Lahore High Court” was that he relied on research papers. In addition, it is pleaded that “The role of Pakistan’s military and ISI in election interference has been widely reported in the international media by outlets such as the New York Times, The Intercept and France 24”.

The first of these “research papers” is an article that was published in 2020. It was written by Dr Jyoti M. Pathania, who is described as a Senior Fellow at the Centre for Land Warfare Studies, New Delhi, and is entitled “ISI in Pakistan’s Domestic Politics: An Assessment”.According to the Abstract which appears at the beginning:

“The article showcases a larger-than-life image of Pakistan’s Intelligence agencies highlighting their role in the domestic politics of Pakistan, by understanding the Inter-Service Agencies (ISI), objectives and machinations as well as their domestic political role play. This is primarily carried out by subverting the political system through various means, with the larger aim of ensuring an unchallenged Army rule. In the present times, meddling, muddling and messing in, the domestic affairs of the Pakistani Government falls in their charter of duties, under the rubric of maintenance of national security. Its extra constitutional and extraordinary powers have undoubtedly made it the potent symbol of the ‘Deep State’.”

The second of those “research papers” is another article that was published in 2020. It was written by Dr Bindra M. Chengappa, who is described as a Senior Fellow, IDSA, and is entitled “The ISI’s Role in Pakistan’s Politics”. In an early paragraph, it states: “The aim of this paper is to examine the ISI role in Pakistani politics during the post-Zia period which begins from September 1988 till the late 1990s.” The conclusions include the following:

“The theoretical framework conceived three models of intelligence agencies namely (a) bureau of domestic intelligence (b) political police (c) independent security state. The ISI would fall under the category of an independent security state with the following characteristics. It lacks external controls and differs from the political police because its goals are determined by agency officials and are likely to differ from that of the political elite. Importantly, agency officials rather than elected officials direct its operations.

The rationale for the ISI turning into an 'invisible government' has much to do with Pakistan being a 'weak state' which depends on a strong state apparatus to compensate for the problem of ideology …

Former Prime Minister Nawaz Sharif successfully used the ISI to collect evidence of corruption by political rivals like Benazir Bhutto and other bureaucrats involved in major contracts with foreign companies. The intelligence agencies have played a frontline role in the struggle for power between the PPP and the PML (N). So much so, the political leadership in the post-Zia period has not really used these intelligence agencies for promoting good governance; it has instead only used them in their internecine warfare which has contributed to instability and led to a crisis of governance in the country.

The import of the ISI wielding power in the country has a strong bearing on Islamabad's national security and foreign policy. It is a major decision influencing element in the security and foreign policy formulation process and tends to adopt an anti-India policy …

The other aspect of ISI involvement in domestic politics is its linkages with Islamic fundamentalist groups which are anti-India in character … This relationship between the ISI and fundamentalists, fostered among other objectives on anti-India interests, clearly characterises a close-minded approach to any improvement in relations with India.”

The Defendant did not explain why the contents of these articles provided a basis for the specific allegation against the Claimant that is contained in the first publication, and the connection between those contents and that allegation is not obvious to me. The second article, in particular, seems far removed, save in the most general of terms, from the allegations in the first publication, as it is dealing with matters 30 years or more earlier.

There was no suggestion that the reports in international media took matters any further. In short, whatever may be said about the role of the ISI, nothing is said about the Claimant.

The Defendant’s trial witness statement also made reference to various publications which showed that “the information shared as opinion in the [first] publication became a reality of the ground”. However, leaving aside the fact that later events are typically irrelevant to what a journalist reasonably believed at the time of publication, none of that later reporting supports the allegation that the Lahore High Court was improperly suborned.

In fact, the evidence of one of the Defendant’s witnesses (Mirza Shahzad Akbar) is that the material by-elections “were indeed delayed despite orders from the Lahore High Court. It was widely understood that the government and the Election Commission’s refusal to implement the court’s order was due to pressure from the military, which did not want the elections to proceed”. In other words, and directly contrary to what was alleged in the first publication, the Lahore High Court was not under anyone’s improper control. It was instead intent on ensuring that the elections proceeded, although its orders were not implemented.

The closest that the later publications come to providing any support for the Defendant having a reasonable belief that it was in the public interest to make the specific allegation against the Claimant relating to taking control of the Lahore High Court that is contained in the first publication is that it was later reported (on or about 3 April 2024) that six high court judges in Islamabad had written a letter alleging that improper pressure had been placed upon them in relation to claims involving Imran Khan, including the abduction of family members, torture, installation of cameras in their bedrooms and threats from the ISI. According to a report in the Guardian on that date “Supreme court justice Athar Minallah said the letter addressed what has been happening in Pakistan for the last 76 years”. These allegations, if right, are consistent with the sentiment underlying the first publication. However, they do not support the specific allegation made: they concern a different topic (court cases involving Imran Khan), a different city, and a time almost two years later.