Redefining terrorism

SC recommends that the definition of terrorism in ATA 1997 may be reformulated more succinctly

The court has finally spoken as promised and drawn the confines of the definition of terrorism in Anti-terrorism Act (ATA) 1997, a much-abused and misused law.

Most of the misapplication of the law since its birth has stemmed from its expansive and vague definition that remained open to discretion and myriad interpretations.

Part of the problem lay in a long inventory of offences included under Section 6 that can attract the provisions of this Act. These offences include, inter alia, actions causing or likely to cause death, grievous injury or endanger a person’s life, mischief, burning of a vehicle, extortion of money, forcible take-over of mosques or other places of worship, coercion or intimidation of a public servant and serious violence against members of law enforcement agencies.

To turn an offence into an act of terrorism the simple and vague test of creating “a sense of fear or insecurity in society” was enough as provided under Section 6 (1), sub-section (b). This placed a wide margin of discretion into the hands of police, the government and the general public to seek registration of a case under the Anti-Terrorism Act.

As a result, over the years the police applied, under various compulsions and inducements Section 7 ATA liberally in cases of police encounters, murders, rapes, arson, damage to property, personal enmity, and firing in air, unnecessarily exposing the ordinary breaches of law to the provisions and punishments of this special law.

By ably surveying the meaning and evolution of the concept both under the municipal and international law, and analysing the judicial holdings of the superior courts on the issue, the honourable Supreme Court of Pakistan has once and for all defined the crime of terrorism while disposing of Criminal Appeals No 95 and 96 of 2019, Civil Appeal No 10-L of 2017 and Criminal Appeal No 63 of 2013.

While interpreting the existing provisions of the law, the court concluded that an action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if committed in furtherance of a personal enmity or private vendetta, and not with the design to coerce and intimidate or overawe a government, or a community for the purpose of advancing a religious, sectarian or ethnic cause.

Pointing out the internal definitional discord in Section 6 of the Act, the court has defined the elements of the crime of terrorism. These elements are: (a) the actus reus, which is the material element or the physical act perpetrated, and (b) the mens rea, which is the mental element of an intent or design to coerce, intimidate, cause fear or terror, coupled with the purpose of furthering a political, religious, or ideological cause.

The international law is also moving in the same direction. A violent activity against civilians without political, ideological or religious aims is thus just an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism.

What the court has said is not just obiter dicta, or just a declaration of law on a moot point, but a tour de force of legal hermeneutics, delving deep into, and interpreting the language in its current meaning as well as the legislative intent of the framers of the Act. Legal hermeneutics is a powerful tool that enables those interpreting the legal texts, going even beyond the universe as dreamt of by the framers of a particular law. It takes into account the birth and growth of ideas posterior to the law. What sets the October 31 judgment of the honourable court apart from ordinary acts of jurisprudence is the development of a test that determines whether or not a certain act can be termed as an act of terrorism.

This has placed the present judgment in the category of such landmark decisions as the International Court of Justice (ICJ) judgment in case of The Republic of Nicaragua vs The United States of America (ICJ, 1986), and the International Criminal Tribunal for Former Yugoslavia (ICTY) Judgment in Tadi Case by the Appeals Chamber (ICTY, 1999).

In the former case, when the ICJ was faced with the difficult question whether the violent acts of the Nicaraguan rebels styled as contras could be attributed to the USA for engaging State responsibility for wrongful acts, the court proceeded to develop what became known in the history of public international law as the ‘effective control test’.

While holding the USA responsible for violating the sovereignty and political independence of Nicaragua because of the support it provided to the rebels, the court did not attribute serious violations of international humanitarian law committed by contras to the USA for the purposes of state responsibility as the facts did not satisfy the ‘effective control’ test. The test requires the perpetrators to be under the direct command of the state or in a position where they receive and execute specific orders for each specific operation.

Some thirteen years later, the International Criminal Tribunal for former Yugoslavia located just a couple of miles from the ICJ, at the Hague, was grappling with a similar question but this time in a different setting. The tribunal was supposed to determine whether the war crimes and crimes against humanity committed by the accused Duško Tadi during the conflict in Bosnia could be attributed to Former Republic of Yugoslavia (FRY).

Undertaking a full-blown survey of the customary international law and opinio juris, the tribunal averred that the appropriate test for attributing misconduct of an organised and hierarchically structured group, such as a military unit or, in case of war or civil strife, armed bands of irregulars or rebels, to the controlling state, is the ‘overall control’ test and not the ‘effective control’ test applied earlier by the ICJ. This broke fresh ground in the international law on state responsibility.

In the present judgment, the honourable Supreme Court of Pakistan has propounded the test of ‘design and purpose’ as an essential element of the crime of terrorism, and has gone further to illuminate the very nature of the design and purpose itself. An offence, however terrible, will not be termed or tried as an act of terrorism unless it satisfies the ‘design and purpose’ test, that is the design to coerce, intimidate or compel a government, a community, a sect or a section of society, to achieve a political, ideological or religious purpose.

The court has recommended to the government that the definition of terrorism in ATA 1997 may be reformulated more succinctly focusing on the test as propounded in this judgment, and clearing Section 6 of all other ‘designs and purposes’ listed therein that have little or no relation with the crime of terrorism as understood by the world at large.

The court has recommended two more things: one, to amend the preamble of ATA 1997 so that Anti-Terrorism Courts (ATCs) are not used for speedy trial of heinous crimes, and two, the removal of Schedule 3 from Act which is an inventory of offences to be tried under ATA even when those do not satisfy even the very vague element of creating fear and insecurity. If implemented, these recommendations will put an end to the misapplication of this law, save ordinary offenders from being tried as terrorists, and enhance the efficiency and effectiveness of the ATCs in the country.

The writer is a researcher and a civil servant

Redlining terrorism under Pakistan's law and constitution