SC decides to determine definition of terrorism

April 03, 2019

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Chief Justice Asif Saeed Khosa
Chief Justice Asif Saeed Khosa

ISLAMABAD: Chief Justice of Pakis­tan Asif Saeed Khosa on Tuesday reg­re­t­ted that many offences of serious nat­u­­re were referred to military or anti-terrorism courts only to satisfy public outcry triggered by the media or society.

“Surprisingly, the ingredients of the crime committed are similar to the one which can be tried in normal courts under the Pakistan Penal Code (PPC) or the Criminal Procedure Code (CrPC) but when a hue and cry is raised, such cases are referred to ATCs (anti-terrorism courts) to keep the people at large satisfied,” observed the chief justice.

The observation came when senior counsel Bhurhan Moazzam Malik drew the attention of a seven-judge SC bench headed by the chief justice to the travesty of circumstances where cases of terrorism were sent to the military courts, saying he did not see any ATC in Lahore hearing cases that strictly fell within the category of terrorism.

CJP regrets many offences of serious nature referred to military or anti-terrorism courts only to keep people satisfied

The bench, however, reserved its ruling on a number of cases clubbed together on the order of the chief justice to determine the definition of terrorism as well as the effect of compromise between two private parties in cases falling within the category of terrorism.

The chief justice asked a number of counsel representing different clients to assist the court in deciding how to open the window or assume jurisdiction to give effect or relief to an accused under the mitigating factors when his capital sentence was reduced to life imprisonment under the routine law or Section 302 of the PPC in view of the compromise reached between the parties. “It is a matter of life and death, therefore we have to consider the issue,” he observed.

Referring to a number of ambiguities in the Anti-Terrorism Act (ATA), the chief justice observed that it should be a matter of concern for the executive as well as the legislature which should consider ending the prevalent confusion, adding that courts would continue interpreting and applying as long as whatever was available in the statute.

Neighbouring countries, he recalled, had also announced special laws like the Prevention of Terrorism Act, 2002 and Terrorist and Disruptive Activities (Prevention) Act, but later they repea­led these and reverted to normal courts because specialised treatment through special courts gave a wrong impression and negated the concept of equality.

By introducing the ATA, the chief justice regretted, the legislators had made a very open-ended law which had only added to the confusion. And though the ATA was introduced in 1997, many amendments were brought to the law in 1999, 2000, 2001, 2004 and 2013 in which even the definition of terrorism was changed. Should the courts consider the cases of terrorism on an individual basis by considering the date of occurrence of the offence and comparing it with the definition at the time of the incident, he asked.

Referring to the objective behind introducing the ATA which was intended to curb or discourage instances of instilling panic and insecurity in society, the chief justice observed that every normal crime had fallout and insecurity was a by-product of the same.

“There are 19 judgements of the Supreme Court in the field, which suggest that the design-oriented purpose of creating insecurity in society falls under the definition of terrorism. Surprisingly, there is an equal number of cases also of the Supreme Court that say that the fallout of an offence will determine whether the crime falls within the category of terrorism or not. Thus there is a perfect balance between two sets of the judgements,” the chief justice observed.

Unfortunately, he said, even the UN or the US State Department had not succeeded or any consensus ever agreed upon on the definition of terrorism.

The chief justice said the victims in terrorism-related incidents were always a collateral damage and were never targets, and the object or purpose of the incident was to instil panic and insecurity in society or in other words use of violence or use of power to interfere in public policy fell within the definition of terrorism.

He said terrorism-related cases were in a class of their own, but here cases related to kidnapping for ransom, gang rape, child molestation or having fire arms of different bores were tried in ATCs only to keep the people satisfied.

At this, Bhurhan Moazzam pointed out that even cases of acid throwing on the hue and cry of NGOs were tried in the ATC.

The chief justice recalled that earlier yardstick was developed that the cases with private vendetta even if it had serious consequences would not fall within the category of terrorism. But in cases with no consequences like in the case where some explosive device was planted but it did not go off, still the one involved in the crime should be tried under terrorism, he said.

Justice Mansoor Ali Shah observed that design and purpose had to be established through independent evidence.

Additional Prosecutor General for Punjab Ahmed Raza Gillani argued that the cases of extreme nature and violence were always designed with a purpose and organised use of force against the public or state or a particular community always fell under the category of terrorism.

Published in Dawn, April 3rd, 2019