Nuanced approach

Published March 11, 2022

IN a country that has suffered years of terrorist mayhem, a weary public tends to see most violent crimes as falling within the ambit of terrorism. However, the criminal justice system must be more circumspect. But because it has not been so, Pakistan’s anti-terrorism courts are choked with cases that really do not belong there — their gravity notwithstanding. On July 30, 2021, there was a backlog of 3,804 cases pending trial in the ATCs in Sindh alone. So instead of these special courts deciding cases within seven days after indictment as required by the ATA, even high-profile trials remain pending for years. It is therefore heartening to see some ATCs applying their mind to this aspect of justice dispensation as well. Recently, the judge of an ATC in Karachi while announcing the verdict in a kidnapping for ransom and murder case observed that kidnapping for ransom did not fall within the ambit of terrorism. If law-enforcement agencies and courts continue to act judiciously, the ATCs’ caseload can be considerably lightened.

The most significant step in rationalising the proceedings before the ATCs came in November 2019 when the Supreme Court provided much-needed clarity about what precisely constitutes terrorism. A seven-member bench in a 59-page judgement authored by then Supreme Court chief justice Asif Saeed Khosa held that while the definition of ‘terrorism’ in the ATA was overly broad, parliament, through the course of several amendments, had arrived at a definition fairly consistent with the international perception of terrorism. The ATA in its present iteration describes terrorism as a “crime with the object and purpose of destabilising society or the government with a view to achieving objectives which are political in the extended sense of the word”. Mens rea, rather than the fallout or potential fallout, is critical in determining whether an act constitutes terrorism. The verdict, however, held that the courts have not always been correct in their reading of the law, and directed them to reexamine their interpretation in which “the shifting of focus from the effect of the action to the design or purpose behind the action had not been noticed”. For instance, a number of crimes — including extortion and kidnapping for ransom — often stem from a desire for personal profit or for vengeance. Only by taking a nuanced approach pegged on the apex court’s judgement can the ATCs streamline their work and dispense justice in the manner they were meant to.

Published in Dawn, March 11th, 2022

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