Pleas against denial of remissions to convicts under ATA dismissed

September 17, 2019

The Sindh High Court on Monday dismissed identical petitions challenging Section 21-F of the Anti-Terrorism Act regarding denial of remissions to terrorism convicts, saying that the denial of...

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The Sindh High Court (SHC) on Monday dismissed identical petitions challenging Section 21-F of the Anti-Terrorism Act (ATA) regarding denial of remissions to terrorism convicts, saying that the denial of remissions to terrorism convicts is neither discriminatory to them nor does it violate any of their fundamental rights.

“All persons who are convicted of acts of terrorism in Pakistan are of the same class and are treated the same in terms of remission,” the SHC’s full bench comprising Justice Mohammad Iqbal Kalhoro, Justice Mohammad Karim Khan Agha and Justice Shamsuddin Abbasi said in their detailed judgment.

The court said that no remission is allowed to terrorism convicts and as such there is no question of any person who is convicted for an act of terrorism under the ATA being treated any differently.

The bench said that denial of remission in cases under the ATA was in conformity with the object and purposes of the ATA, whose preamble was set out earlier, according to which no concession was to be given to those persons who commit heinous offences that struck at the very foundations of the state.

The SHC said that on a plain reading, the wordings used in Section 21-F of the ATA are absolutely clear and require no interpretation by the courts.

The court said that despite the insertion of denial of remissions in the ATA over 18 years of age, none of the three successive democratically elected legislatures have deemed it fit to remove Section 21-F from the ATA, which is an indication that the successive legislatures are satisfied that the denial of remissions is justified in ATA cases.

The bench said that in the recent times, Pakistan unlike many other countries has been grappling with the problem of internal terrorism, whose deliberate design and intent is to adversely affect the stability of the state through acts that undermine the government and its institutions, creating fear and insecurity in the minds of the public.

The SHC said that as such it is the duty of the parliament to respond to such situations by passing the appropriate legislation to protect the state and its citizens, which it has done by passing the ATA.

The court said that the legislature, in order to attempt to combat the menace of terrorism, even amended the Constitution with two-thirds majority for a limited period to allow certain so-called black terrorism cases to be tried by the military courts.

The bench said that the parliament being elected by the people and therefore reflecting the will of the people can promulgate any legislation with any sentence and restriction that it deems necessary and appropriate.

The SHC said that the courts will only interfere by way of interpretation if the legislative intent is unclear or if such a piece of legislation or parts thereof are in violation of the Constitution. The court said that its approach is in conformity with the sovereignty of the parliament and the doctrine of the trichotomy of powers on which the country’s Constitution is based in a parliamentary document.

The bench said that Section 21-F does not violate Article 4 (Right of individuals to be dealt with in accordance with law), Article 12 (Protection against retrospective punishment), Article 13 (Protection against double punishment and self-incrimination), Article 25 (Equality of citizens) or any other articles of the Constitution.

The SHC said that since remissions are not applicable in cases under the ATA, which deals with heinous offences having a special object and intent aimed at destabilising the state and institutions and the cowering of citizens through instilling in them a sense of fear and insecurity, the anti-terrorism courts (ATCs) must exercise great care and caution in determining if the cases before them fall under the ATA based on the requirements of Section 6 (Terrorism) of the ATA.

The court said that in the absence of the ingredients of Section 6(1)(b) — the use or threat to coerce and intimidate or overawe or create a sense of fear or insecurity — and 6(1)(c) — the use or threat to advance a religious, sectarian or ethnic cause — cases should be tried under the ordinary criminal law.

Petitioners Junaid Rehman Ansari and others, who were convicted and sentenced to different prison terms by ATCs under the ATA, had challenged the insertion of Section 21-F, arguing that the denial of remissions to terrorism convicts was discriminatory and contrary to equal treatment in accordance with the law.

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