Trivialising terror

It happens a little after midnight. Under a pitch-black sky, on an unpaved road, a car suddenly backs up. The screech of tires jolted out of inertia echoes through the night. One loud sound collides with another as successive booms ripple through the atmosphere – gunshots race into the abyss.

Moments earlier, five individuals surround a metal beast, allegedly ready to rob those housed within. Now, bullets litter a metal frame. Four injured men lie inside it, and one of them is going to die. Outside, five people stand paralysed, and one is going to be sentenced to the same fate – death. Except the latter will face an unintended consequence – more than a lifetime of limbo on Pakistan’s death row.

What would you call this crime?

Today, Bali, who has spent more time incarcerated on this Earth than he has as a free man, lives in a death row cell in Mandi Bahauddin. It is a misnomer to use the term ‘free man’ in this context, as Bali was only 17 on that fateful day under a dark sky. Still a child, he was convicted for murder and sentenced to death, under an offence under the Anti-Terrorism Act 1997 (the ATA), which was tacked onto his ticket for good measure.

Under Pakistani law, if the next of kin of a victim of murder forgives the perpetrator, they are not given the death penalty, and their sentence is converted to that of life imprisonment. However, this principle does not apply in cases of terrorism. Bali’s offence, of being party to a robbery that resulted in accidental death, was somehow classed as just that – an act of terrorism.

Despite Bali’s victim’s family having forgiven him, and despite their public call that he not be hanged, the ATA has cut off any hope that he will be taken off death row, and this leaves him within the grasp of the gallows. He is one small example of the countless others swept up by the open hand of the ATA fishing blindly in the sea of Pakistan’s accused.

The august Supreme Court of Pakistan provided much needed clarity in its recent judgment that in order to be tried under the ATA, the ‘act’ – a long list of actions outlined in the law, must have been committed with very specific intent in mind. The actions that could potentially be tried as terrorism are expansive, including the causing of death, bodily harm, looting, arson, use of explosives, and vigilantism.

However, the acts themselves do not amount to terrorism without the clear and specific intent of the perpetrator. In two prongs, the ATA has also defined these; the acts must be designed to coerce and intimidate the government, the public or a sect, or must create a sense of fear and insecurity in a society. Or else, the act must be done to advance a religious, sectarian or ethnic cause. If the act and the intention behind it are not in tandem, the ATA does not apply. The acts on their own cannot be tried as terrorist activity.

Moreover, the Supreme Court observed that terrorism has been defined too widely in the law, and that parliament ought to consider re-evaluating the same to bring it in line with the global legislative trends on the issue, which better account for the ideological motivations behind the offence.

This interpretation of the law, through an essential elaboration by a Supreme Court that has made progress in reforming our criminal justice system, comes after decades of nonsensical application. There are undeniably countless Pakistani citizens currently languishing in our jails (those who were spared the noose) who have been misjudged to be terrorists – a class of criminal that ought to be recognised as separate and unique. Without this separation, we risk not only trivializing the grave offence of terrorism, but relegate those accused in ordinary offences to facing special courts designed to deal with terror offences. The disproportionate punishments meted out to such individuals offer nothing in terms of retributive value, and perpetuate the injustices woven throughout the net of our criminal justice system.

Today, 19 years on from the unfortunate night that a robbery was committed and a man accidentally killed, Bali has served more than a life sentence waiting to be hanged, despite his victim’s family having forgiven him. Perhaps, as we contemplate the ATA in light of the judgment, we can spare a thought for Bali and others like him. A sub-class of convicts wrongly classified as terrorists, who bear a charge which stigmatized them for every interaction they ever had with the legal system.

Pakistan is ready for amendment in, and better application of, the ATA. We are too intimately acquainted with terror to let the law as it stands be our legacy in combating it.

The writer is a lawyer working with the Justice Project Pakistan.

Twitter: @sfarrukhsh