Categorising terrorists in name of religion not reasonable: Justice Isa

ISLAMABAD: The Supreme Court (SC) judgment on 18th and 21st constitutional amendments contained a detailed dissenting note by Justice Qazi Faez Isa who held that the categorisation of terrorists using the name of religion or sect was not “a reasonable classification” and all the terrorists should be treated similarly and prosecuted with the full vigour of the law.
“It may also be observed that neither Islam nor any other religion permits murder or acts of terrorism, therefore, the phrase terrorism in the name of religion is an oxymoron, and one that cannot be accepted,” Justice Isa said in his note.
He said the 21st Amendment and the amendments made to the Laws of the Armed Forces need to be tested against the constitutional directive that, “All citizens are equal before law and are entitled to equal protection of law”.
He was of the view that a person who commits an act of terrorism is a terrorist. His reason or motivation for committing the terrorist act is immaterial.“Those who commit terrorist acts or spread terrorism do so in violation of the law. They must therefore be treated similarly and prosecuted with the full vigour of the law,” he held.
The Pakistan Army (Amendment) Act, 2015 extended the ambit of the Army Act to particular civilians committing certain types of terrorist acts. According to the amendment made in sub-clause (iii) and (iv) of clause (d) of sub-section (1) of section 2 of the Army Act, those civilians who are “claiming or are known to belong to any terrorist group or organization using the name of religion or a sect” can be tried and courts-martialed, provided their cases have been sent for trial by the Federal Government pursuant to sub-section (4) of section 2.
“The categorisation of terrorists who use the name of religion/sect is not a reasonable classification, and the Federal Government’s absolute discretion to pick and choose from amongst them further offends it; consequently, the same is discriminatory and offends the equality principle encapsulated in Article 25 of the Constitution,” said the note.
He was of the view that a terrorist organisation which is not religious or sectarian, may abet a religious or sectarian organisation in the commission of an offence or in a series of events which culminate in a terrorist act.
“For instance, an ethnic organisation may supply explosives or guns to a religious or sectarian organization, which then uses the same in a terrorist act; will then the members of the said ethnic organization be tried separately in an Anti-Terrorist Court or will they also be tried by the military?, The definition of religious or sectarian organizations in the Army Act, which has also been incorporated in the Air Force Act and the Navy Ordinance, does not contemplate such scenarios,” he said.
Justice Isa said the vagueness of the definition and lack of details in the definition clause gives rise to monumental jurisdictional and constitutional problems. An individual who is sent to be tried by the military may declare that he is not a religious or sectarian terrorist and contend that the exercise of discretion by the Federal Government in sending his case for trial by the military was not justified.
“Every law should be explicit and a meticulous effort must be made by the draftsmen to ensure that all conceivable problems are attended to. Even if, for the sake of argument, it be accepted that the categorisation of such type of terrorists does not offend the reasonable classification rule or any provision of the Constitution, such challenges would undoubtedly delay the trial of terrorists rather than achieving the professed objective of ensuring that the terrorists are brought to justice promptly. The law as framed is giving them an unnecessary lifeline,” his note reads.
Meanwhile, in their joint dissenting note, Justices Ejaz Afzal Khan and Ejaz Chaudhry said the 21st amendment is in contradiction of the basic structure of the constitution. They said once an amendment is made, it cannot be in contradiction with the constitution. Justice Asif Khan Khosa and Justice Dost Muhammad Khan also wrote a dissenting note.