A major issue with the definition of terrorism in the Anti-Terrorism Act of 1997 is its inconvenient inclusiveness. The definition is so broad that a large number of cases end up in the special anti-terrorism courts. The state machinery is thus overburdened and some of the most important terrorism cases are delayed. This has also led to the establishment of military courts that have been hearing the ‘real’ terrorism cases.
A preamble is always an aid to interpretation of statues. The preamble of the ATA provides that the Act has been promulgated to prevent terrorism, sectarian violence and speedy trial of heinous offences. While most judgments have been based on recognizing the need for the ATA to deal with cases where the intent of the perpetrator was to instil fear in the general population, some judgments have upheld the application of the law to other heinous offences.
In Imran Ali vs the State, the Lahore High Court famously dismissed a petition by the murderer of an eight year old which argued that the offence involved was not terrorism. The court held that the crime was absolutely horrendous and barbaric; noted that the accused had confessed to child rape, sodomy and murder; and dismissed the appeal. At times offences that are clearly not acts of terrorism are so barbaric that the local community demands trial under the ATA. The chief justice had remarked that the ATA was full of “ambiguities” and regretted that “routine criminal cases are also tried in anti-terrorism courts” but also observed that “all crimes result in extension of insecurity”. He reasoned that if a crime was committed with the intention of spreading insecurity, it might be classified as terrorism.
Acts of terrorism dealt under the Anti-Terrorism Act include the threat of action designed to coerce and intimidate or overawe the Government, or the public, or a section of the public, or a community or sect, or a foreign government or population, or an international organization; or create a sense of fear or insecurity in society; or made for the purpose of advancing a religious, sectarian or ethnic cause; or intimidating and terrorizing the public, social sectors, media persons, or business community; or attacking the civilians, including by damaging property by ransacking, looting, arson or by any other means; government officials; installations, security forces or law enforcement agencies
In the case relating to the Faizabad dharna, the Supreme Court ruled that a person who issues a fatwa (edict) against another person can be prosecuted under the ATA. It is these circular definitions of terrorism that now need to be clarified. In summary, it can be clearly adduced that criminal offences are prosecuted under the provisions of the ATA whenever there is a need to tackle media, social or political uproar. A pertinent example is the Shahrukh Jatoi case. No matter how barbaric the murder was, it was not terrorism. Yet the offender was prosecuted by an ATC under a Supreme Court direction following a suo motu hearing.
The starting point to discerning the true definition of terrorism would be to reinterpret the preamble, since the definition supported by the preamble is broad and ambiguous, especially the reference to heinous crimes. Under the ATA, acts of terrorism include threat of actions designed to coerce and intimidate or overawe the Government or the public, or a section of the public or community or sect, or a foreign government or population, or an international organization; or create a sense of fear or insecurity in society; or 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 – including damaging property by ransacking, looting, arson or by any other means – government officials, installations, security forces or law enforcement agencies. The Act further provides that types of actions that involve the use of firearms, explosives, or any other weapon are deemed terrorism, whether or not the rest of the elements are satisfied. Any violation of international conventions on terrorism signed by Pakistan are also considered acts of terrorism under the Act. The definition could not have been broader. This has led to problems. The ATCs are overburdened and the military courts have started dealing with cases of ‘real’ terrorism, for example, those accused of the Army Public School attack.
The Act needs to be reinterpreted in a way that cases based on personal motives rather than ideological or political reasons are distinguished and not prosecuted under the ATA. The Act also gives the Executive branch of the government the power to amend the list of offences that have to be prosecuted under the ATA. So, for example, abduction or kidnapping for ransom are now prosecuted under the ATA based on a notification by the government. It has to be understood that redefining terrorism cannot be done only at the court’s initiative. A legislative initiative in this regard needs to be taken as a matter of urgency.
The anti-terrorism regime needs to be of such substance that the police and politicians cannot convey that a case is being given special attention just by adding the provisions of the ATA to the FIR. Only cases involving real terrorism should end up in the ATCs.
The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law