Ali Afzal Sahi
Section 6 of the ATA defines terrorism in a broad and generic manner, which has led to its misuse
On August 21, former Prime Minister Imran Khan was booked on charges of terrorism for threatening police officers and a sessions judge whilst addressing a public rally in Islamabad. The timing of the FIR could not be more apt considering an earlier complaint against Mr Khan was lodged on the pretext of public incitement and hate speech, thereby, banning the broadcast of his live speeches. While the margin of appreciation empowers a state body to curtail certain rights and freedoms in light of public sanctity, an issue underscored is whether the FIR was truly in place for the greater good or perhaps a smokescreen employed by certain factions of the state at best.
A little context into the issue is that the complaint that was booked under the Anti-Terrorism Act 1997 (ATA) immediately spanned international frontlines by branding the former prime minister as an alleged terrorist. Before exploring the political and moral dimensions of this case, it is important to explore the genesis of the ATA and analyze how this case fits within the scope of its jurisprudence. Until 1997, the offences of terrorism were dealt with by general criminal laws including the Pakistan Penal Code and the Code of Criminal Procedure. To streamline terrorism offences such as those ranging from sectarian violence, terrorism, hi-jacking, use of explosives and kidnapping, a separate branch of legislation was introduced, which came to be known as the ATA 1997.
The cases registered under ATA were to be tried through specialist Anti-Terrorist Courts, which sparked a nationwide debate about the militarization of legal proceedings. Anti-Terrorist Courts were established to deal with offences of terrorism in a swift manner where special courts would expedite trials of terrorist suspects. Despite its promising model of expediency, a huge pendency of cases could not be dealt with. While the list of reasons for this failure is exhaustive, the scope of this article is limited to the single most jurisprudential angle. Section 6 of the ATA defines terrorism in a broad and generic manner, which has led to its misuse- many cases that should have been tried in regular courts were routed to ATCs. In a landmark judgment titled “Liaqat Hussain v Federation of Pakistan, 1999,” the court adopted the zero-inventory approach, and it was decided that ATC will be given one case at a time. However, due to the broad definition of terrorism, this never materialized.
This ambiguous definition of terrorism wreaked havoc on the system of precedent- superior courts were handing down conflicting judgments, which the lower judiciary petitioned back to appellate courts in a bid of confusion. One set of Supreme Court judgements, like “Mirza Shaukat Baig and others versus Shahid Jamil and others,” held that Section 6 of ATA, which defines the term “terrorism” does not revolve around the word “designed to” or “mens rea” but the key term is “action” whereof it can be adjudged as to whether the alleged offence falls within the scope of terrorism or not. This “action” based approach by the superior courts widened the net of ATA attracting cases, which should otherwise have been tried in ordinary courts of law.
Another set of Supreme Court precedents, like “Bashir Ahmed v Naveed Iqbal,” took a restrictive approach regarding the definition of terrorism and held that actions specified in Section 6 are to constitute the offence of terrorism only if such actions are accompanied by the “design” or “purpose” specified in clauses (b) or (c) of subsection (1) of Section 6 of the ATA and that it has consistently been maintained in these precedents that an act of terrorism is not to be confused with the usual and run of the mill crimes committed due to private vendetta. This conflict in the jurisprudence has been hopefully resolved by the Supreme Court’s larger bench in “Ghulam Hussain v State,” which discussed all the leading precedents on the definition of terrorism and held that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. Moreover, Supreme Court recommended that the Parliament may consider substituting the present definition of “terrorism” with a more succinct definition that aligns with international perspectives and focuses on violent activity geared toward religious or political ideology.
When the terrorism charges against Imran Khan are analyzed in the light of the Ghulam Hussain case, it becomes crystal clear that FIR is politically motivated and perhaps that is why Imran Khan has been granted pre-arrest bail. The registration of a terrorism case by the State and the present government against Khan is proof of their myopic vision, which has led to the disgrace of Pakistan on the global stage. The State and all governments, Federal and Provincial, must establish and respect rule of law and this grotesque practice of using laws to further personal and political ends must cease at once. If not for the complete withdrawal of politics from the law, Pakistan’s image on the international front will be brutally compromised and this bears foreboding news not just for the State but also for the ordinary citizens of Pakistan.