Director Human Right Cell Vs Country Director/ E.D Transparency International

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JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(fudicial DePartment)

CM No. l5-Pl2023

Date of hearing: L9.02 .2024

Date of announcement: 08.04.2024 Present:

M/s, Ali Habib, Nqdtq Huma Hashmat, Ahmad Ali and Burooi Huma A for Transparencv International Pakistan.

Raia Masood Khan, Adu,ocate for imoleaded partv (Noor Muhammad Khant.

Amicus Curiae: Professor Niaz A Shah, The (Jniversitv o.f Hull. Barrister-at-Law. Nexus Chamber* London, UK. Actine Pro Bono.

JUDGMENT

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MOHAMMAD IBRAHIM KHAN. CJ.- On 9th Dec em b er 2023, Tran sparency International,

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Pakistan (TIP) published its report titled 'National Corruption Perception Survey: TI Pakistan 2023' (NCPS 2023). The key findings

v in relation to Khyber Pakhtunkhwa (KP) judiciary were that the KP judiciary is the second most comrpt sector and that 'citizens paid the highest bribe to access judiciary (Rs.

162,000)'. These findings were widely reported in the national print and other media. The NCPS 2023 report went viral on social media as wel[.

2.TIP used a questionnaire consisting of 13 questions but the above two findings are based on the number of responses to the following two questions:

i. In your opinion, which is the most corrupt sector?

ii. According to you, do You have to pay a bribe in the Previous 12 months to access anY of the following public service delivery?

3.On 14th December2023,the Director of Human Rights Cell of this Court submitted Complaint No. 29979 to the Chief Justice, Peshawar High Court, along with press clipping of the Daily Express dated 11.12.2023 wherein

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v the above key findings, among others, were reported. The complaint stated that 'besides tarnishing the dignity of the institution, the report is likely to shatter the public confidence in the judicial system of the country'.

4.On 20th December 2023, proceedings were instituted and a notice was issued to the TIP. On 22 December 2023, the Court sought objective bases from the TIP's counsel for the key findings regarding the KP judiciary but no satisfactory explanation was provided. To assist the Court in understanding the grounds of findings against the KP judiciary, the Court directed the TIP to answer the following quenes

l /. I Can you elaborate on the methodologt used to assess and rank the KP's Judiciary as the [secondJ most corruPt sector in your recent rePort?

ll What specific indicators or criteria were emPloYed to arrive

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v at this conclusion regarding the Judiciary's perceived corruption level? How valid and reliable is the public perception survey?

ut. Could you provide examples or case studies that support the findings regarding the KP's Judiciary corruption within your report?

tv What meosures are taken bY the TIP to ensure accuracy and reliability in depicting the status ofjudicial coruuption?

v Has Transparency international couched its findings and conclusions in relation to the judiciary of Khyber Pakhtunkhwa I lP/- in appropriate language or are they misleading?

vl. What is the qualification of the enumerators interviewing the people, litigant public in the case ofjudiciary?

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v vu The report doesn't include Prosecution, Probation and Lawyers' bodies for evaluation. What could be the reason?

viti. Can any infficiency or malpractice of others be Put in the scale of judiciary to malign it ranking at No. t2l of the corruption index?

5.The key issues, amongst others, before the Court; arc:

I Whether the NCPS 202i k"Y findings regarding the KP judiciory are reliable, valid and credible; and

il. Whether the k"y findings are ,/, worded appropriatelY.

6.Given the nature of these key and related issues before the Court and to weigh the scales of justice in most appropriate way, Professor Niaz A. Shah was appointed as Amicus Curiae to assist the Court. Professor

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\l Shah is an eminent Professor of Law with internationally recognised research profile working at the University of Hull, UK. He is also an experienced practicing Barrister associated with Nexus Chambers, London.

7.Arguments ofthe learnedAmicus Curie and learned counsel of the respondent-TlP heard report and related material gone through.

8.The issues before the Court engage three laws:

(a)The law dealing with the right to freedom of expression as recognised by the Constitution of the Islamic Republic of Pakistan 1973 (Constitution) and

I t Internattonal Human Rights Law.

(b)The right to have access to iustice and fair administration of iustice as a fundamental right of the people and;

(c)Prohibition of ridiculing judiciary.

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9.Freedom of exPression is a

fundamental right recognised under Article 19 of the Constitution. It is, however, a qualified right as the Constitution permits certain limitations on its exercise. One such permissible limitation is prohibition of contempt of court which is amply discussed in PLD 1998 SC 823 & PLD 2012 SC 923. Article 204 of the Constitution empowers court (Supreme Court and High Court) to penalise those who 'does anything'which tends to bring the court or a judge into ridicule or contempt or constitutes contempt of the court. Section 3 of the Contempt of Court Ordinance 2003 is germane as it prohibits 'Whoever [...] does anything

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,") which is intended or tends to bring the authority of a court or the administration of law into disrespect or disrepute [...] is said to commit - contempt of court'.

10.The right to freedom of exPression is also a recognised right under International Human Rights Law. For instance, Article 19 of

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the International Covenant on Civil and Political Rights 1966 (ICCPR), to which Pakistan acceded on 23 June 2010, recognises the right to freedom of expression. It is, nevertheless, however, a qualified right as it can be limited on certain grounds. One of the permissible grounds for limitation is public order. Although Article 19 of the ICCPR does not specifically mentions contempt of court as a permissible ground for limiting freedom of expression but it is inferred from and included in the public order ground. The Human Rights Committee, established under Article 28 of the ICCPR, held in the case of Dissanayake v. Sri Lanka (CCPR/C 1931D11,37312005) that d- contempt of court falls within the permissible ground of limitation of public order for restricting freedom of expression.

11.The Constitution of Pakistan and ICCPR protect the right to freedom of expression not only of individuals, journalists etc. but also afford protection to non-

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governmental organisations (NGOs) as they raise awareness through their functions on issues of public importance. The contribution of NGOs on issues of public importance is undeniable. The European Court of Human Rights (ECHR) has recognised the role and contribution ofNGOs in many cases, e.g., in the case of CASE OF MAGYAR HELSINKI BIZOTTSAG v. HUNGARY (Application no.

18030/1 1). the ECHR held:

166.The Court has also

aclwtowledged that the function of creating various platforms for public debate is not limited to the press but moy also be exercised by, among others, non-governmental

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organtsations, whose activtties are an essential element of informed public debate. The Court has accepted that when an NGO draws attention to matters of publtc interest, it ,s exercising a public watchdog role of similar importance to that of the press (see Animal Defenders International

v. the United Kingdom IGCJ, No. 48876/08 & 103, ECHR 201 3 (extracts)) and may be characterised as a social "watchdog" worranting similar protection under the Convention as that affirded to the press (ibid.; Tdrsasdg, cited above, & 27; and Youth Initiative for Human Rights, cited above, & 20). It has recognised that civil society makes an important contribution to the

discussion of public affairs (see, for instance, Steel and Morris v. the United Kinsdom, no. 684 I 6/0I . & 89, ECHR 2005-il; and Tdrsasdg, & 38, cited above).

12.The Court appreciates the view of the ECHR regarding the role and contribution made by NGOs on issues of public importance I t/. and their right to freedom of expression in the form of research publications. Their rights and role, however, come with great responsibilities and duties to those who they engage in their activities such as surveys, the institutions they aim to research and broadly the public. Article

v' 19(3) of the ICCPR has specially mentioned that the exercise of this right 'carries with it special duties and responsibilities'. NGOs, like other organisations and institutions have to operate within the limits imposed by law especially human rights law and the fundamental rights contained in the constitution of Pakistan. The right to freedom of expression is a qualified right because its exercise may in conflict with other validly recognised human rights, i.e., the right of public atlarge.In this case, it is the right of public and the institution funded by their taxes to question the validity, reliability and credibility of research findings by NGOs so that the judiciary is not unfairly ridiculed and l'd brought into disrepute. Maintaining public trust and confidence in the judiciary is the sine qua non for the fair administration of justice in a democratic society. Access to justice and fair administration of justice is a fundamental right of people.

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13.For assessing reliability, validity and credibility, Professor Shah relied on and cited the United Nations Development Programme Handbook on Planning, Monitoring and Evaluationfor development Results (2009) which the Court found of great assistance:

Reliability refers to consistency of meastffement--for example, ensuring that a particular data collection instrument, such as a questionnaire, will elicit the same or similar response if administered under similar conditions.

Validity refers to accuracy in measurement- for example, ensuring that a particular data collection instrument actually meosures what it was intended to measure. It also refers to the extent to which inferences or conclusions drawn /1 fro* data are reosonable andiustifiable.

Credibility concerns the extent to which the evaluation evidence and the results are perceived to be valid, reliable and impartial by the stakeholders, particularly the users of evaluation results (UNDE 2009 : 1 76).

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14.Besides, Professor Shah submitted a detailed brief on 10th January 2024 focusing on the following three questions:

Has Transparency International €D followed an appropriate research methodologt in its National Coruuption PercePtion Survey Tl Pakistan 2023?

ii. How valid and reliable are the findtngs of the TI's public perception survey regarding Khyber Pakhtunkhwa (KP) judiciary?

iii. Has Transparency International couched its findings in relatton to the judiciary of KP in aPProPriate language?

I ,/ 15. On the three questions, Professor Shah submitted that the TIP has adopted a recognised research methodology; however, its execution is defective, which calls into question its rigour and ethical soundness, as well as the credibitity and validrty of its findings.

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16.The learned Amicus Curie also

submitted that the perception finding related to (Ql), i.e., that KP judiciary is the second most comrpt sector, is reliable and valid but, given the small size of the sample, it may be considered unrepresentative of the KP's 40.85 million population. He further submitted that the bribery finding related to (Q2), i.e., that 'in KP on average citizens paid the highest bribe to access judiciary (Rs162,000)' is neither reliable nor valid and so lacks credibility

17.On the wording of two key findings in respect ofthe KPjudiciary Professor Shah submitted that the finding regarding (Ql), i.e., that the KP judiciary is the second most I ,/ comrpt sector is not couched in appropriate language, it lacks credibility and is misleading.

Whereas, regarding (Q2) finding, Professor Shah submitted that TIP has not couched its finding m appropriate language. It lacks credibility and is misleading.

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18.To represent the genuine intent of the question while also being fair to the respondents and those working in the judicial sector, Professor Shah provided the following examples for re-wording the key findings. The finding regarding (Q1) could be written in one of the following ways:

a) 56 out of 381 (14.69%) respondents perceive judiciary as the second most corrupt sector in KP but only 5 out of 39 respondents claim to have paid bribe.

b) In the opinion of 56 out of 381 respondents ( I 4.69%o), iudiciary is the second most corrupt sector (4 in KP but only 5 out of 39 respondents claim to have paid bribe.

19.The f,rnding regarding (Q2) could be reworded in one of the following ways:

a) 5 out of j9 respondents alleged that, on everage, they have Paid

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last l2 months.

b) In the last 12 months, 5 out of j9 respondents, on average, paid Rs.

162,000 for accessing iudiciary

in KP.

20.In his brief, Professor Shah noted that perception-based survey has inherent limitation which is not included in NCPS 2023.

He submitted that TIP was required to mention that the survey is based on perception and may not reflect reality. Professor Shah also viewed that NCPS 2023 lacks ethical and methodological rigour as some data were missing from the data analysis and TIP did not provide any explanation for the missing data.

It// TIP chose a sample of 1600 people for its survey. TIP rejected 52 forms which means 1548 respondents were left. In response to (Q2), TIP only provided data based on 760 responses.

It did not explain the data on the remaining 788 respondents.

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21.Regarding the data on (Q2), 39 respondents claimed to have paid bribe for accessing judiciary in Pakistan. TIP did not explain how many respondents claimed to have paid bribe for accessing judicial services in KP.

TIP only said that on average citizens paid Rs162,000 in the last twelve months to access judiciary in KP. According to Professor Shah's computation, in KP only five out of 39 respondents claimed to have paid bribe for accessing judicial services but TI failed to mention that only five people claimed to have paid bribe. Professor Shah submittedthat ethical and methodological rigour demanded to mention the amount as well as the number of individuals who claimed to have paid bribe.

I t/- Transparency International Pakistan response to the Court's Questions 15th January 2024

22.On 15 January 2024, TIP submitted its response to the eight questions

v posited by the Court on 22 December 2023. On credibility of NCPS 2023, TIP submined that 'Two Retired Supreme Court Judges, one retired High Court Judge, and two eminent advocates have been involved in approval of NCPS 2023, which gives credibility of NCPS 2023' .

23 Regarding the methodology, TIP submitted that NCPS 2023 ois based on international methodology' .

24.On the inherent limitation perception survey, TIP admitted that 'perception does not necessarily mean reality but is shaped by the citizens' opinions and experiences. It does not mean that the department, sector, or institution is comrpt or has financial irregularity'.

TIP further submitted that 'In t// 25.

NCPS 2023, 80% of the respondents have perceived judiciary as "CLEAN" and only merely 20% have perceived it as "CORRUPT"'.

In its response to the Amicus brief of February 2024, ITP admitted that there was a

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typographical effor in NCPS 2023 and the actual figure is that 85% said that the judiciary is clean and 1 5o/o perceived it to be corrupt. TIP further admitted that 'At the national level, 87% of the respondents have perceived judiciary as "CLEAN" and only merely l3Yohave perceived it as "CORRUPT"'.

26.TIP submitted that 'compared to NCPS 2022, 'the perception of the judiciary in KP has improved 57%. This is the highest improvement witnessed by any department across Pakistan as per NCPS 2023' .

27.At the hearing of 29h January 2024, TIP asked for time to respond to the submissions of the Amicus Curiae dated 10th January 2024. This was a reasonable request tc and the Court granted TIP time to respond before and/or by 29 January 2024.

28.Accordingly, on 15 January 2024, TIP report of 15 January 2024 was provided to Professor Shah. On the same day, Professor Shah submitted an Addendum to his Amicus

brief of 10 January 2024 wherein he responded to TIP's points set out above. His main submissions are summarised below.

Credibilitv:

29.Professor Shah submitted that approval of NCPS 2023 by retired judges and eminent advocates do not, per S€, infuse findings and claims not backed by data with credibility. Credibility is achieved by honest, objective, rigorous and ethical analysis of data.

Methodoloey:

30.Professor Shah submitted that there is no such thing as 'International methodology'. This is TIP's invention.

I d 57%o Improvement:

31.TIP claims that 'In comparison to NCPS 2022 report, in NCPS 2023, the perception of the judiciary in KPK has improved by 57yo' . NCPS 2003 provides comparative data of different surveys / years but

v the 57o/o improvement is not mentioned in the report

85Vo Clean Claim:

32.TIP claims that that 'In NCPS 2023,185%l of the respondents have perceived judiciary as "CLEAN" and only merely ll5%l have perceived it as "CORRUPT"'. The available data do not support this claim. TIP is required to provide data to justifr this claim.

33.TIP is also required to explain as to why the [85%] clean finding was withheld and not included in NCPS 2023 report.

TIP Response to the Amicus Curiae Brief February 2024

ttl 34. TIP submitted a detailed response to the Amicus brief of l0 January 2024 and addendum of 29 January 2024.In its response, TI provided answers and comments on the points raised by the Court and in the amicus brief and addendum. On 17 February 2024,the

Amicus provided addendum number 2 making further submissions on points raised in the TI's response of February 2024.

DISCUSSION ON THE KEY ISSUES:

35.The Court found the written and oral submissions of Professor Shah of significant assistance. The Court is also grateful to TIP for its written and oral submissions, and it's the assistance so advanced that leads to the following discussion on the two key issues, formulated herein above.

Issue No. I: Whether the NCPS 2023 key findings regarding the KP judiciary were reliable, valid and credible?

I 36. After careful consideration of the TIP's NCPS 2023 report, its responses of 15 January 2024 and February 2024 and the carefully written and oral submissions of Professor Shah, I found the TIP's report suffering from ethical and methodological

rigour and its key findings related to KP judiciary are not credible. These unreliable and invalid findings tend to bring the judiciary into disrepute as well as fuelling ridicule ofjudiciary on public forums and media especially social media.

37.TIP has failed to mention the

inherent limitation of perception survey in its NCPS 2023 report. In its response of 15 January 2024, which is before the court, TIP admitted that 'This perception does not necessarily mean reality but is shaped by the citizens' opinions and experiences. It does not mean that the department, sector, or instifution is comrpt or has financial irregularity'. TIP did not explain in its two responses to the court why it failed to ilL mention this inherent limitation in its NCPS 2023. Without explaining this limitation, the key finding in relation to (Ql) may mislead the lay public which, in turn, contributes to public misperception about the judiciary

Misperceptions lead to erosion of public trust

v and confidence in the judiciary and, in some cases, fuel public ridicule and scorn.

38.TIP also claims that NCPS 2023 is a perception survey but it is not entirely correct as (Q2) is not related to perception, i.e., it is asking whether the respondents have paid bribe in the last 12 months. Unlike the finding on (Q1), the finding on (Q2) is not based on perception. TIP reported that on average citizens paid Rs 162,000 to access judiciary in KP.

39 TIP has failed to explain its data in relation to (Q2). TIP has noted the responses of 760 respondents who claim to have paid bribe but despite two opportunities, it did not explain what were the responses of the remaining (788) I 4 respondents. This is major flaw in TIP's data analysis and has seriously undermined the reliability and validity of its finding regarding (Q2). Professor Shah is justified to say that it lacks credibility.

40 TIP's explanation regarding the

52 rejected forms is not persuasive. Accuracy of

[2s] v numbers leads to accurate percentage and findings. The numbers must be accurate. I accept Professor Shah's submission in his Addendum No. 2 of 17 February 2024:

9.TI[PJ maintains that the 52 rejected forms are subsumed in the frequency table for each province, €.g.,for KP (381/400), I9 forms were rejected. If we were to accept this explanation, then for Punjab (376/400) Z4; for Sindh (369/400) 31; and for Baluchistan (343/400) 57 forms were rejected. The total reiected forms should be li I as tabulated below, not Province Actual ltotal Rejected Punjab 3761400 24

Sindh 3691400 3t

tc KP Baluchistan

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146911600 13 I

41.This is very concerning that TIP admitted before the Court in its response of 15 January 2024 that 87% respondents have

126l v perceived judiciary nationally as 'CLEAN' and merely l3o/o perceive it as 'CORRUPT' but this key information was not included in NCPS 2023 report. Similarly, TIP admitted that in Kp, 85% respondents perceived judiciary clean whereas only l5%o perceived it comrpt but this key explanation was not included in NCPS 2023.

42.TIP also claimed in relation to KP judiciary that compared to NCPS 2022, 'the perception of the judiciary in KP has improved 57%. This is the highest improvement witnessed by any department across Pakistan as per NCPS 2023'. This finding, like the 87%and85o/o clean claims, was not included in NCPS 2023. This would have been encouraging for the nation and taxpayers of Pakistan to know the 87o/o and8lo/o il clean findings regarding their judiciary. These claims would have also boosted the morale and confidence of those working in judiciary 43 TIP has only reported negative findings regarding the judiciary. Professor Shah rightly submitted in his Addendum No 2 of 17

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February 2024, that TIP has reported only negative findings:

IL Questionnaires data usually consist of mixed responses leading to mixed findings. It cannot be the case that only negative responses could be the basts of findings leading to negative findings.

44.NCPS 2023 is for institutions as well as public. Given the wider readership of the report by lay people (i.e., with no or minimal expertise in research), greater clarity was required in NCPS 2023 report. Several claims made by TIP in its responses to the court are not included in its NCPS 2023 report and are not readily available to public like the NCPS 2023 tu/ report.

45.TIP's intention and aim of improving institutions across the country is laudable. TI has, however, done itself and the institutions it wants to assist and improve a huge disfavour by not following ethical and

methodological rigour; properly analysing data and reporting full findings in NCPS 2023.

46 For the reasons set out above, I am not persuaded that the TIP's key findings on

(Ql)and (Q2) are reliable, valid and credible Any unreliable, invalid and incredible research findings tend to bring the judiciary into disrepute and fuels public ridicule of the judiciary.

Issue No. II: Whether the key findings are worded appropriately?

47.The presentation and phrasing of research f,rndings are critical. The august Supreme Court, in a case reported as 2015 SCMR 1097, has held that the manner and style il* of expression can have a very substantial effect on what is actually conveyed to the listener or reader. The wording used to convey the finding regarding (Q1) are deemed inappropriate. It could have been worded as a mere reflection of public perception. Similarly, the TIP did not

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mention that only 5 out of 39 respondents claimed to have paid bribe to access judiciary in KP. The wording and manner in which finding on (Q2) is expressed is deceptive.

48.As the wording of the two key findings regarding KP judici ary are not worded appropriately in the NCPS 2023, they tend to bring the judiciary into disrepute and contribute to public misperception about the judiciary.

CONCLUSION:

49.For the reasons set out above, the TIP is hereby ordered to take the following actions, within 14 days, and submit compliance report by 24th April 2024 to the Registrar of this Court. The TIP is directed to:

I t/- i Recall its NCPS 2023 report and issue a revised NCPS 2023 in light of this judgement. The revised report shall be published and circulated in the monner andform of NCPS 2023 in December 2023.

The press release of 9'h December 2023 in relation to NCPS 2023

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shall be revised according and republished.

Explain the missing date, i.e., what happened to the 788 responses (1548 - 760 : 788) in relation to (Q2).

iii. Clarifu the exact number offorms rejected in total and how many were rejected in the case of KP. After accurate number of forms are ascertatned, accurate percentoge shall be provided.

iv. Explain and include the 87ok, 85% and 57% claims in the revised NCPS 2023 the report for lay readers. TIP must not leave keyfindtngs buried in the data and to be discovered by lay readers .fro* reading between the lines.

irl tar v Set out clearly the inherent limitation of perception survey in the revised NCP^S 2023. The explanation provided in TIP's response of 15 January 2024 to the would sffice, i.e., it shall be included in the revised report.

vi. Revise wording of the two k y findings in relation to (Ql) and Q2) TIP shall adopt Professor Shah's suggestions or rephrase them in line with Professor Shah's suggestions.

50.This is very disappointing that TIP did not show willingness to correct its NCPS 2023 report on its own initiative. Had TIP showed willingness to revise and rectiff its NCPS 2023, there would have been no need for order by this Court.

51.Before parting with this judgement, it is made clear that the aim of this judgement is not to limit the freedom of expression or objective and credible research. It is the opposite, i.e., to encourage reliable, valid and credible research which would assist the institutions and serve public interest.

Announced, il/'

Chief Justice

*Muhammad Fiaz* (S.B.) Hon'ble Mr. Justice Mohammad Ibrahim Khan' CJ