It is heartening to see that the Chief Justice of Pakistan, Asif Saeed Khosa, and his larger seven-member bench is on course to determine what constitutes ‘terrorism’ under the Anti-Terrorism Act, 1997 (ATA). Last week, the Supreme Court reserved its judgment while hearing petitions about two men tried under the ATA as Justice Khosa dubbed it a “matter of life and death”.
The ATA is Pakistan’s principal counter-terrorism law. It was enacted with the intent to address acts of terrorism and provide ‘speedy trials’, laying down a separate legal regime and establishing specialized Anti-Terrorism Courts (ATCs). However, the law has failed to fulfil its mandate.
The ATA’s misapplication stems largely from the extremely broad definition of terrorism in the law, which allows the inclusion of offences bearing little or no connection to terrorism per se. Section 6, the cornerstone of the ATA, is so broad and vague that it covers essentially any violent crime. For example, Section 6(1) includes within the definition of terrorism the “use of threat or action” that “create a sense of fear and insecurity”. Similarly, any of the actions listed in Section 6(2) can constitute an act of terrorism if they cause “fear and insecurity” in society. One could argue an aggressive guard dog could put his master at the risk of such a trial.
This provision has been misinterpreted by ATCs to try cases of violent crime that fall within the ambit of regular criminal courts. Zafar Iqbal is just one example of the overreach. He was sentenced to death by an ATC in 2003 for killing his father over an inheritance dispute. “The cold blooded murder of father by his son is itself sufficient to create the sense of insecurity and terror in the people of the locality,” observed the court. Perhaps. However, the important question is: does that constitute terrorism?
An analysis of the major reported judgments relating to the ATA by the Research Society for International Law (RSIL) from 1998 to 2013 reveals that a majority of cases registered under the ATA were not acts of terrorism per se. Rather, the cases registered appeared to be ordinary criminal offences that bore no indication of terrorism intent. Additionally, a Justice Project Pakistan report titled ‘Terror on Death Row’ shows that by December 2014, more than 80 per cent of the prisoners tried in ATCs were not “terrorists” as the term is commonly understood. This has resulted in a significant backlog of cases with reportedly more than 17,000 cases pending under the ATA in July 2014.
The vague definition of terrorism is also problematic as the punishments provided under the ATA are harsher and more rigorous than those under the Pakistan Penal Code. The punishment of ‘death or imprisonment for life’ is available for three instances: causing the death of any person [Section 7(a)]; kidnapping for ransom or hostage-taking [Section 7(e)]; and hijacking [Section 7(f)].
The misapplication of ATCs has demonstrated a high rate of acquittal. In Khyber Pakhtunkhwa, in the years 2015, 2016, 2017, 48 percent of the cases sent by the police to ATCs were discharged. In the same vein, juveniles have been sentenced to death and executed under the ATA in contravention to the Juvenile Justice System Act, 2018 along with the UN and international conventions Pakistan is party to. The government has faced repeated calls from the international community to review and reform the ATA. In July 2017, the United Nations Human Rights Committee recommended, “[Pakistan] should review the Anti-Terrorism Act with a view to aligning the definition of terrorism provided in Article 6 of the Act in accordance with international standards.”
While there is no universal definition of terrorism, most definitions include action carried out or threat made with the intention of advancing a political, religious or ideological cause. Section 6 sub-section 1(b) and (c) of the ATA lists a number of instances punctuated with the word ‘or’. Any threat to coerce or intimidate or overawe the government or public or section of the public or community or sect constitutes terrorism. So does the use of threat for advancing a religious, sectarian or ethnic clause, among others.
The word ‘or’ between sub-sections 1(b) and 1(c) should be replaced with the word ‘and’. This would narrow the scope of the definition. The legislative intent behind sub-section 1(c) should also be clearly defined in explanatory notes which clarify the role of motive in differentiating terrorism from other kinds of violent crime that also generate fear.
In Basharat Ali vs. Special Judge Anti-Terrorism Court II, Gujranwala, Justice Khosa stated: “Every crime … creates some sort of fear and insecurity … but every felony or misdemeanor cannot be … terrorism. The real test to determine … terrorism is the motivation, object design or purpose behind the act and not the consequential effect …”
While the entire act is in need of significant reforms, the decision to narrow the scope of the Act is a critical first step in the much-needed overhaul of Pakistan’s criminal justice system in order to stop gross miscarriages of justice.