Zulfiqar Ali was 18-years-old when he joined the Pakistan Navy as a Physical Training Instructor. His family tells us he excelled in the role, devoted to his country and even more so to his job. He was a diligent man.
In 1998, Zulfiqar and his younger brother were held up in an armed robbery outside of Islamabad, where he was posted at the time. As a serving Naval Officer, he carried his service pistol. He shot back at the attackers in self-defense. As anyone would if they not only feared for their own life, but also of a loved one.
Although his act did end up causing two deaths, to call his act of self-defense terrorism would be a stretch, to say the least. But our criminal justice system saw it fit to not only categorise a botched mugging as terrorism but to also try Zulfiqar in the Anti-Terrorism Courts (ATCs) in Rawalpindi.
Which promptly sentenced him to death in 1998.
Zulfiqar’s case illustrates the dangerous overbreadth of Pakistan’s counter-terror framework, which has been used to prosecute a range of crimes that have nothing to do with terrorism.
The Anti-Terrorism Act (ATA), passed in 1997, established a parallel system for the prosecution of terror-related crimes that governs the procedures for the arrest, detention, prosecution, and sentencing of terrorism suspects in Pakistan.
Like most things, it seems like a good idea in theory. Only, the ATCs and ATA are not really trying terrorists.
Under the Act, terrorism entails “the use or threat of action designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or a sect or create a sense of fear or insecurity in society.”
The definition covers any such actions “made for the purpose of advancing a religious, sectarian or ethnic cause, or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians,” and lists examples as broad as “damaging property by ransacking, looting, arson or by any other means…”
This description of terrorism is so expansive that it could be interpreted to cover virtually any crime or public disturbance, blurring the line between ordinary crime and genuine acts of terror.
As a result, the ATA’s broad scope directs large numbers of non-terrorist defendants into a system that is plagued with the lack of safeguards, backlog and ineffectiveness. The conviction of Shafqat Hussain exemplifies this problem. At the age of 17, Shafqat was accused of kidnapping and murder, crimes normally heard in ordinary criminal courts under Pakistan’s Penal Code.
However, because the charge was deemed to have “created a sense of terror in the wider community,” he was tried in an ATC, dramatically altering the trajectory of his case, resulting in a sentence that was illegal given that he was a juvenile.
Speaking in the National Assembly, Minister of Interior Chaudhry Nisar Ali Khan admitted that the case was in reality “not connected to terrorism” at all and more appropriately “concerned civil society.” Yet, his sentencing and subsequent execution were at the hands of the ATA.
When the Government decided to use special military courts, it wasn’t meant to be a permanent solution. The government promised to reform and restructure the anti-terrorism courts, equipping them to handle terrorism cases. That’s probably what the increasingly ineffective (and unachievable) National Action Plan envisioned for swift justice.
And over two years later, we find the ATCs in almost the exact same shape as before. Last year, according to the Law and Justice Commission of Pakistan, 4778 cases were pending across 56 ATCs in the month of December alone. By funnelling non-terrorism cases in the ATCs, the criminal justice system is only undermining its own effectiveness for dealing with the militancy.
To make matters graver still, a closer look at ATA prosecutions reveals the overreach of anti-terrorist laws in Pakistan and the overuse of the death penalty in particular. Research from Justice Project Pakistan indicates that in 2014, more than 800 alleged “terrorists” were on death row due to ATA prosecutions; of these, 256 had no pretence of a link with terrorism. Of the remaining 562 cases, JPP concluded that only 20 percent of those sentenced to death under the ATA were genuine “terrorists” as the word is commonly understood — that is, motivated by a broader political or religious ideology that distinguishes the offence from normal criminal or personal motives like profit or revenge.
So, we find people like Zulfiqar and Shafqat in the ATCs, who fall through the cracks left by a vague definition, lowered evidentiary standards and death sentences that are precluded from compromise or commutation.
What makes Zulfiqar’s conviction so terrifying is not only by how preventable it was but how it resulted from gross negligence, characteristic of state-appointed lawyers that are paid a pittance to represent scores of clients. When the prosecution presented falsified witness statements, Zulfiqar’s state-appointed attorney failed to challenge this erroneous testimony, irrevocably damaging his case.
Even when the case reached the penultimate stage of appeal, Zulfiqar’s family still had not met his brother’s lawyer. He only learned from another lawyer that the Supreme Court had dismissed Zulfiqar’s final petition (against execution) because his lawyer was not even present in court. He was sentenced to death by firing squad. By the time Zulfiqar was executed on May 6, 2015, his execution had been scheduled (and postponed) more than 22 times.
One can only imagine the terror he felt with each execution notice.
The writer works with Justice Project Pakistan, a human rights law firm based in Lahore