- Record: found
- Abstract: found
- Article: found
Defining Terrorism: Its (Mis)Application and Implications in Pakistan
Abstract
The Anti-Terrorism Act, 1997 (ATA) mainly governs the anti-terror legal regime of Pakistan. This paper debates that the definitional part of this statute has certain ambiguities which makes it difficult to determine ambit and scope of this statute. Consequently, the specially mandated Anti-Terrorism Courts (ATCs) have to deal with the question of jurisdiction first and the original trial proceeds later which makes the basic purpose of the ATA i.e. to speedily decide the cases, futile. Even the higher judiciary sometimes issues the ATA-based decisions with weak jurisprudential reasons. This study postulates that only a lucid and detailed legislative amendment can end this overuse of ATA as well as the confusions of jurisdiction and expedite trial proceedings [Ed.].
Content
Author and article information
Footnotes
See for detailed study, Kai Ambos and Anina Timmermann, “Terrorism and Customary International Law,” in Research Handbook on International Law and terrorism, ed. Ben Saul (Cheltenham: Edward Elgar, 2014); Andrew Silke, “Research on Terrorism: A Review of the Impact of 9/11 and the Global War on Terrorism,” in Terrorism Informatics: Knowledge Management and Data Mining for Homeland Security, eds. Hsinchun Chen, Edna Reid, Joshua Sinai, Andrew Silke, and Boaz Ganor (New York: Springer, 2008); Ben Golder and George Williams, “What is ‘Terrorism? Problems of Legal Definition,” UNSW Law Journal 27, no. 2 (2004): 270–295, http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2017/09/27-2-12.pdf; Rosalyn Higgins, “The General International Law of Terrorism,” in Terrorism and International Law, eds. Rosalyn Higgins and Maurice Flory (London: Routledge, 1997); and Richard R. Baxter, ”A Skeptical Look at the Concept of Terrorism,” Akron Law Review 7, no. 3 (1974): 380–387, https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=l&article=2222&context=akronlawreview.
For a detailed discussion, see sections on Statutory Scope and Judicial Scope of this study.
Anti-Terrorism Act of 1997, No. XXVII (1997).
A detailed discussion is offered by Shabana Fayyaz, “Responding to Terrorism: Pakistan'a Anti-Terrorism Laws,” Perspectives on Terrorism 2, no. 6 (2008): 10–19, https://www.jstor.org/stable/26298353; Khursheed Iqbal, Defining ‘Terrorism’ in Pakistan's Anti-Terrorism Law—A Jurisprudential Analysis in the context of International Law and Certain Domestic Jurisdictions, report (Peshawar: Khyber Pakhtunkhwa Judicial Academy, 2015), https://kpja.edu.pk/sites/default/files/digitallibrary/Terrorism%20Definition%2024%20Aug%2015%20pdf.pdf.
See, RSIL, Human Rights and Pakistan's Counter-Terrorism Legislative Landscape, report (Lahore: Research Society of International Law, 2017; Naeem Ahmed, “Combating Terrorism: Pakistan's Anti-Terrorism Legislation in the Post-9/11 Scenario,” Journal of the Research Society of Pakistan 52, no. 2 (2015), http://pu.edu.pk/images/journal/history/PDF-FILES/9.%20Naeem%20%20Ahmad_v52_2_15.pdf; JPP, Terror on Death Row: The Abuse and Overuse of Pakistan's Anti-Terrorism Legislation, report (Lahore: Justice Project Pakistan, 2014, http://www.tanqeed.org/wp-content/uploads/2014/12/Terror-on-Death-Row.pdf; and Fayyaz, “Responding to Terrorism: Pakistan's Anti-Terrorism Laws.”
Pakistan Penal Code Act of 1860, XLV (1860).
The State vs Zaheer-ud-Deen, [2018] MLD 314 (Pak.).
Afzal Ali Shigri, “A Flawed Anti-Terrorism Law,” Dawn, December 23, 2016, http://www.dawn.com/news/1303938.
The Anti-Terrorism Act of 1997, XXVII (1997).
See for example, Muhammad Abbas v. Special Judge ATC and 6 others, [2016] YLR 2702 (Pak.); Bashir Ahmed v. The State, [2009] PLD SC 11 (Pak.); Basharat Ali v. The Special Judge, Anti-Terrorism Court-II, [2004] PLD 199 (Pak.); Muhammad Mushtaq v. Muhammad Ashiq and others, [2002] PLD SC 841 (Pak.); and Bashir Ahmed v. Naveed Iqbal and others, [2001] PLD SC 521 (Pak.).
Abdul Rehman vs Mst. Shani Qayyum, [2018] PCrLJ 422 (Pak.).
Mens-rea, a Latin term for 'guilty mind’ refers to the intent behind a criminal act as a necessary element to prove a crime.
Actus-reus, a Latin term for ‘guilty act’ refers to the particular action or conduct of the accused opposite to his mental state which becomes the constituent element of a crime.
See the detailed discussion in segment 1.2 of this study.
As defined in the Explosives Act of 1884 IV (1884), Section 2(f) says, “explosives means any bomb, grenade, dynamite, or explosive, substance capable of causing any injury to any person or damage to any property an includes any explosive substance.”
As defined in Arms Ordinance of 1965, XX (1965), Section 2(g) of ATA 1997 says, “fire-arms” means any or all types and gauges of handguns, rifles and shotguns, whether automatic, semi-automatic or bolt action, and shall include all other firearms.
As defined in the Surrender Illicit Arms Act of 1991, XXI (1991); Section 2(bb) of ATA 1997 says, ‘weapon’ means any item which can be used to injure or cause bodily harm, and includes any type of fire-arm, explosive, sword, dagger, knuckle-duster, stengun, bomb, grenade, rocket launcher, mortar or any chemical, biological thing which can be used for causing injury, hurt, harm or destruction of person or property, and includes ‘illicit arms.’
Sudha Setty, “What’s in a Name? How Nations Define Terrorism Ten Years After 9/11,” University of Pennsylvania Journal of International Law, 33, no. 1 (2011): 1–63 (33–34).
See, The Anti-Terrorism, Crime and Security Act 2001, c.24 (2001); The Prevention of Terrorism Act 2005, c. 2 (2005); The Terrorism Act 2006, c. 11 (2006). The most recent legislation is The Terrorism Prevention and Investigation Measures Act 2011, c. 23 (2011).
Satu P. Limaye, Robert G. Wirsing and Mohan Malik, eds., Religious Radicalism and Security in South Asia (Honolulu: Asia-Pacific Center for Security Studies, 2004), 387–411 (390), https://apcss.org/Publications/Edited%20Volumes/ReligiousRadicalism/ReligiousRadicalismandSecurityinSouthAsia.pdf; and Shigri, “A Flawed Anti-Terrorism Law.”
Tariq Parvez and Mehwish Rani, An Appraisal of Pakistan's Anti-Terrorism Act, report 377 (Washington, D.C.: United States Institute of Peace, 2015), https://www.usip.org/sites/default/files/SR377-An-Appraisal-of-Pakistan%E2%80%99s-Anti-Terrorism-Act.pdf.
Section 6(1)(c) says, ‘In this Act, ‘terrorism’ means the use or threat of action where: The use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.’
Mehram Ali and Others v. Federation of Pakistan and Others [1998] PLD SC 1445 (Pak.).
(Section 3 got omitted in 2001 through, Ordinance No. XXXIX of 2001)
Ismat Naureen v. Additional Sessions Judge, Attock and Another [1998] PLD 275 (Pak.); see also Faisal Iqbal v. The State [1998] PLD 371 (Pak.).
The High Court explained the principles of interpretation as discussed in Maxwell on interpretation of Statutes in these words, “the penal statutes are to be accorded strict construction in accordance with golden rule of litera-legis and that ordinarily courts are not authorized to supply omissions left by legislature. Although in exceptional circumstances, the court may fill up the gap if it is found that on account of omission, the underlying objective of legislature will be frustrated and statute will become wholly unworkable.” For a detailed discussion see also, Zahid Pervaiz v. Special Judge, Special Court No. l for Anti-Terrorism Bahawalpur and Another, [1999] YLR1716 (Pak.); Dad Muhammad Khan v. Bassa, [1965] PLD 77 (Pak.).
Bashir Ahmad v. Naveed Iqbal and 7 Others, [2001] PLD SC 521 (Pak.).
During 1997 to 2000, the ATA was amended five times through, The ATA (Amendment) Act, 24 Oct. 1998, The ATA (Amendment) Ordinance, 27 April 1999, The ATA (Amendment) Ordinance, 27 August 1999, The ATA (Amendment) Ordinance, 2 Dec. 1999, and The ATA (Amendment) Ordinance, 24 July 2000.
Muhammad Afzal and Others v. S.H.O and Others, [1999] PCrLJ 929 (Pak.).
Bashir Ahmad v. Naveed Iqbal and 7 Others, [2001] PLD SC 521 (Pak.).
Mehram Ali and Others v. Federation of Pakistan and Others [1998] PLD SC 1445 (Pak.).
The repealed definition given in Section 6 defined terrorism as, ‘Whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substance, or fire-arms, or other lethal weapons or poisonous or noxious gases or chemicals or other substance of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community or displays fire-arms, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act.’
Mazhar v. The State, [2003] PLD 267 (Pak.).
Anti-Terrorism (Amendment) Ordinance of 2001, XXXIX (2001).
Through the amending Ordinance the Schedule of the Act containing various offences to be tried under the said Act was done away with and the term ‘terrorist act’ with its definition contained in section 6 of the Act was substituted and replaced by the term ‘terrorism’ with the following definition thereof: “(1) In this Act ‘terrorism’ means the use or threat of action where: (a) the action falls within the meaning of sub-section (2), and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or (c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.”
State through Advocate General v. Muhammad Shafiq, [2003] PLD SC 224 (Pak.).
Basharat Ali v. The Special Judge, Anti-Terrorism Court-II, [2004) PLD 199 (Pak.).
Mirza Shaukat Baig and others v. Shahid Jamil, [2005] PLD SC 530 (Pak.).
State through Advocate General v. Muhammad Shafiq, [2003] PLD SC 224 (Pak.).
Shahbaz Khan Alias Tippu and Others v. Special Judge, Anti-Terrorism Court No. 3, Lahore and Others, [2016] PLD SC 01 (Pak.). See also, Khuda-e-Noor v. The State, [2016] PLD SC 195 (Pak.); Malik Muhammad Mumtaz Qadri v. The State, [2016] PLD SC 17 (Pak.); Ahmed Jan v. Nasrullah, [2012] SCMR 59; and Bashir Ahmed v. The State, [2009] PLD SC 11 (Pak.).
Province of the Punjab through Secretary Punjab Public Prosecution Department and Another v. Muhammad Rafique and Others, [2018] PLD SC 178 (Pak.).
Kashif Ali v. the Judge, Anti-Terrorism, Court No. II, Lahore and Others, [2016] PLD SC 951 (Pak.). See also, Tahir Javed Khan v. The State, [2016] MLD 1840 (Pak.).
Khuda-e-Noor v. The State, [2016] PLD SC 195 (Pak.).
Same observation was given by the Supreme Court of Pakistan in Malik Muhammad Mumtaz Qadri v. The State, [2016] PLD SC 17 (Pak.).
See also, Muhammad Akram Khan v. The State, [2001] PLD SC 96 (Pak.); The State through Prosecution General v. Noor ud Din and Two Others, [2013] YLR 618 (Pak.).
Malik Muhammad Mumtaz Qadri v. The State, [2016] PLD SC 17 (Pak.).
The State v. Ataullah Khan Mangal, [1967] PLD SC 78 (Pak.).
Mirza Shaukat Baig and Others v. Shahid Jamil and Others, [2005 PLD SC 530 (Pak.).
Muhammad Abbas v. Special Judge ATC and 6 others, [2016] YLR 2702 (Pak.).
Bashir Ahmed v. The State, [2009] PLD SC 11 (Pak.).
Basharat Ali v. The Special Judge, Anti-Terrorism Court-II, [2004] PLD 199 (Pak.).
Muhammad Mushtaq v. Muhammad Ashiq and others, [2002] PLD SC 841 (Pak.).
Bashir Ahmad v. Naveed Iqbal and 7 Others, [2001] PLD SC 521 (Pak.).
Muhammad Mushtaq v. Muhammad Ashiq and others, [2002] PLD SC 841 (Pak.).
At first instance, when the case is lodged under the ATA, it proceeds with its own special procedures particularly drafted to make it speedy; such as, the extremely difficult procedures of seeking bail (Section 21-D), the conditional admissibility of extra-judicially made confessions by the accused before District Superintendent of Police (DSP) (Section 21-H), the applicability of special provisions of Remand (Section 21-E) and trying the juvenile suspects under the ATA (in the course of application of Section 2(d), 21-C(5), 21-C(7)(e), 21-C(7)(f), 21-G, 21-F of the ATA instead of JJSA, 2018.
For example, The State through Prosecution General v. Noor ud Din and Two Others, [2013] YLR 618 (Pak.), while relying upon the judgment of the Supreme Court of 2001, Muhammad Akram Khan v. The State, [2001] PLD SC 96 (Pak.) put the incident of siyahkari (honor killing) or murders incidental thereto under Section 6(ii)(g) of the ATA with a purpose to make them an example for those who commit such acts and for not leaving any chance of compromise on issue between the parties (as possibly can happen in murder cases decided under PPC by the Court of Sessions through the application and execution of the rules of Diyat). The Court took such decision despite that the Apex Court had decided in 2007 in Mohabbat Ali and Another v. The State, [2007] SCMR 142 (Pak.), against the inclusion of honor killing in the ambit of the ATA. In the same way Gul Muhammad v. The State’, [2012] PLD 22 (Pak.), was decided in extraordinary manner by the Quetta High Court. The Court categorically admitted that the matter which arose in consequence of an incidence of honor killing though could also have been dealt under Section 311 of the PPC however it was decided through the application of the provisions of the ATA. Then the Peshawar High Court criticized the decision of the ATC to refer the case of abduction which happened in consequence of personal enmity and the incident of firing on Police force that reached to release that abductee, by the ATC to the Court of Sessions in appeal petition in The State through Advocate General v. Khaista Rehman, [2013] MLD 1872 (Pak.). In this case the ATC had the contention that it fell short of jurisdiction to try the case. The High Court decided this matter through applying the ATA provisions. In all these cases apparently the High Courts just satisfied the aforementioned criterion of establishment of ‘four factors’ to constitute the act of terrorism and pronounced the judgment under the ATA. The meaning of one High Court judgment in a common law state is that an array of judgments of the lower courts is in line to follow the same pattern under the rules of precedent. Hence what is imperative is to interpret these four factors with special reference to terrorism.
Dicta issued by the Supreme Court of India in, Usman Bhai Dawood Bhai Memon v. The State of Gujrat, [1988] SCC 271 (Pak.).
Section 311 of PPC says, “Notwithstanding anything contained in Section 309 or Section 310, where all the wali do not waive or compound the right of qisas, or [if] the principle of fasad-fil-arz the Court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with [death or imprisonment for life or] imprisonment of either description for a term of which may extend to fourteen years as ta'zir. Provided that if the offence has been committed in the name or on the pretext of honour, the imprisonment shall not be less than ten years. Explanation: For the purpose of this Section, the expression Fasad-fil-Arz includes the past conduct of the offender, or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed by him which is outrageous to the public conscience, or if the offender is considered a potential danger to the community or if the offence has been committed in the name or on the pretext of honor.
The importance of considering the “presumption of innocence” of the offender in a criminal case was discussed in the case of, Bahar Ali v. The State, [2008] PLD 28 (Pak.). The Court notified that, “It is settled principle of administration of criminal justice that heinous nature of an alleged crime, alone, can never be a hauler to expose an accused to adversities, because in all eventualities, presumption of innocence of accused is enormously paramount.” It further continued, “... Because innocent person, if involved, the only rescuer for him is the golden principle of innocence of accused and proof against him beyond shadow of doubt.” Whereas in Noor Hassan v. Haji Muhammad Khan alias Turkey and Others, [2005] YLR 1791 (Pak.), the Court opined that, “It is equally true that lack of legal knowledge of complainant or scanty legal knowledge of Investigating Officer cannot be a convincing excuse to hamper application of canons of safe administration of justice, in criminal cases. In such circumstances, prosecution may sometime be the sufferer, but the robe of justice can allow no Court to forget the principles relating to innocence of accused, till his guilt is proved beyond doubt, and only in the case of availability of such a standard of proof, the heinousness of crime may add more in his sentence, at the end of trial, if required in the interest of justice, keeping in view the facts and circumstances of a particular case.”