Landmark verdict

October 14, 2019

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THE gaps in the Anti-Terrorism Act, 1997, most recently amended in 2018, often pose challenges for the legal system. On Friday, a seven-member Supreme Court bench pronounced its judgement on some of the ambiguities arising from the legislation, with a focus on situations when non-compoundable offences under the ATA are committed in tandem with offences tried under the Pakistan Penal Code. Various aspects of the issue have been addressed in different verdicts, but the consolidated ruling by a larger bench of the apex court should suffice to settle it once and for all. The 27-page judgement authored by Chief Justice Asif Saeed Khosa holds that terrorism offences remain non-compoundable even if the aggrieved party pardons the perpetrator for compoundable crimes simultaneously committed during the act of terrorism. However, according to the ruling, in case of such a pardon, the relevant court has the discretionary power to reduce the sentence awarded for the non-compoundable offence. Furthermore, in case the convict is pardoned by the aggrieved party after the filing of a first, unsuccessful mercy petition before the president, an individual sentenced under the ATA would be able to file a second mercy petition.

Aside from laying down procedural guidelines in trials conducted by the anti-terrorism courts, the Supreme Court verdict may have the salutary effect of reducing the number of death sentences handed down for non-compoundable offences. According to the Justice Project Pakistan, the liberal use of capital punishment in this country accounts for 26pc of the world’s death row population and 13pc of global executions. A 2014 study by JPP and Reprieve, another non-profit fighting against the death penalty, found that of the 800 prisoners on death row who had been convicted under the ATA, in nearly 88pc of the cases “there was no link to anything reasonably defined as ‘terrorism’”.

This state of affairs is closely linked with a fundamental flaw of the ATA, which is its overly broad definition of terrorist acts. No less than 18 crimes — including extortion and kidnapping for ransom — are listed as falling within the scope of the legislation, whose preamble states it is meant to “provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences”. The result is a blurring of lines between acts of violence driven by ideological or political motives — the generally accepted criteria for defining terrorism — and ordinary, even serious, crimes that spring from a personal desire for vengeance or profit. While some judges have cautioned against charges under the ATA being indiscriminately filed in criminal cases, others have been less particular about what constitutes “heinous offences”. The ATA should have facilitated the swift disposal of terrorism cases. Instead, the ATCs are clogged with cases that cannot be defined as terrorism at all. It is high time for clarity on this score as well.

Published in Dawn, October 14th, 2019