An Appraisal of Pakistan's Anti-Terrorism Act 1997

An Appraisal of Pakistan's Anti-Terrorism Act, 1997 An Appraisal of Pakistan's Anti-Terrorism Act, 1997 By Barrister Syed Shahbal Ali From the time the Anti-Terrorism Act, 1997 came into effect there have been many misinterpretations around its application. With the interpretation of the definition of Terrorism the emphasis shifted from one criterion to another including the gravity of the act, lethal nature of the weapon used, plurality of culprits, number of victims, impact created by the act, and the effect of fear and insecurity brought about or likely to be created in society by the action. Ultimately, due to the vague and unclear definition and perhaps the mindset inherited by us in the background of the Summary Military Courts, Speedy Trial Courts and Special Courts for Suppression of Terrorist Activities, which were different courts constituted at different stages in the past for separate and special handling of offences of grave nature, the cases being sent to the Anti-Terrorism Courts ("ATC") and being tried by the ATC never belonged there. A key misunderstanding that existsis regarding the objective vs subjective nature of the assessment of the act of terrorism. The standard of assessment can make all the difference between a finding of guilt and a finding of innocence. The subjective standard requires the prosecutor to prove, beyond a reasonable doubt, that the accused intended his or her actions while the objective standard requires the prosecutor to prove, beyond a reasonable doubt, that a reasonable person in the accused's position would have intended his or her actions. It has been made clear through judgments that an objective standard is to be applied to ascertain whether or not an accused had intended to commit an act of terrorism. This was clarified in the case of Ghulam Hussain v. The State1 where the Hon'ble Supreme Court explained how "In most cases, the nature of the offences, the manner of their commission and the surrounding circumstances demonstrate the motive given in the FIR. However, that is not always the case. When offences are committed by persons with impunity disregarding the consequence or impact of their overt action, the private motive or enmity disclosed in the FIR cannot be presumed to capture their true intent and purpose. In such cases, it is plain that action taken and offences committed are not instigated "solely" by the private motive alleged in the FIR. It is settled law that intention, motive or mens rea refer to the state of mind of an offender. It is equally well established that a state of mind cannot be proven by positive evidence or by direct proof. The intention of an accused for committing an offence is to be gathered from his overt acts and expression." What this means is that a correct application of the objective standard would be to accumulate all the evidence regarding the potential state of mind of the offender, and to ask the question of whether a reasonable person, in the specific situation that the offender was in, would have intended to commit the act in the interest of creating a sense of fear or insecurity in the society. However, in trying to interpret this standard of assessment, a common misunderstanding exists wherein the question asked by the Courts is not whether a reasonable person in the place of the accused could reasonably be expected to commit the actions committed with the intent to cause terrorism, but whether the public, or society would perceive the act committed as an act of terrorism, something more similar to perhaps the officious bystander test used in English Common Law when implying agreements into Contracts. What this looks like is for example what took place in the case of State through Advocate General v. Muhammad Shafiq2 where it was held that the Courts are only required to see whether the terrorist act was such that it would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society. Similarly, the case of Shahbaz Khan alias Tippu and others v. Special Judge, Anti-Terrorism, Court No.3, Lahore and others3 where the Supreme Court held that "the three ingredients of the offence of terrorism under Section 6(1)(a) and (b) of ATA are firstly, taking of action specified in Section 6(2) of ATA; secondly, that action is committed with design, intention and mens rea; and thirdly, it has the impact of causing intimidation, awe, fear and insecurity in the public or society."Finally, the case of Abdul Ghafoor Bhaiti v. Muhammad Saleem and others4 where the Hon'ble Supreme Court found the case to be that of terrorism and observed that: "The Courts have to see the impact of the act which the miscreants have perpetrated. In the case in-hand two minors were abducted for ransom by the miscreants. Such-like act has certainly got the tendency to create sense of fear and insecurity in the minds of the people or any section of the society. The psychological effect created upon the minds of the people would be the guiding feature so as to see whether the act complained of has got nexus with sections 6 and 7 of the Act. As already stated the Courts have to see only the tendency whether nature of such act would create sense of insecurity. By no stretch of imagination, it can be said that the abduction of minors at gun points would not create terror among reasonable and prudent persons of the society." This misunderstanding has led to monumental misconceptions; the actual intention of the offender is given a backseat, meaning a situation where an offender intends to commit an act, which in his opinion has the tendency to create a sense of fear and insecurity in the minds of the people or any section of the society, but it is not perceived by the Courts as having such an "impact", would not warrant a conviction under the ATA. Similarly, an act done which is void of any intention to create a sense of fear and insecurity in the minds of people of any section of the society, done perhaps solely for reasons arising out of personal enmity, but which is perceived by Courts (as highlighted in the cases above) as having an "impact" or "tendency" to create sense of fear and insecurity in the minds of the people or any section of the society will be classified as an act of terrorism.In short what this means is that decisions are being made on the basis of "impact","outcome", "tendency"where they should be based on intention. An attempt to address the exact ramification of this analysis was made in the case of Basharat Ali v. Special Judge, Anti-Terrorism, Court No II, Gujranwala5, where the Hon'ble Supreme Court explained how. "Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a by-product, a fall out or an unintended consequence." The above discussed model where only tendency, impact and outcome is considered, not intention, is not only an incorrect application of the objective standard, but it results in situations where it becomes impossible to ascertain where the terrorism was the sole intention behind an actas opposed to when it was (as stated by the Hon'ble Supreme Court) simply a by-product, a fall out or unintended consequence. In addition, different Courts can have different interpretations of impact and outcome, leading to a large variations of applications, which is what the reality of Courts is at the moment. Having said that, perhaps most importantly, the above discussed model simply disregards mens rea completely, focusing instead only on the actus reus, which is once again, a gross misapplication of the basic foundational elements of Criminal Law. Having said all of that, the natural follow up question to be asked is why it is of such significance that a case due to be tried in a Court of ordinary jurisdiction is being tried in an Anti-Terrorism Court; the answer of which is threefold. Firstly, offences having similar characteristics, but which are deemed acts of "terrorism" carry significantly higher punishments. For example, under Section 363 of the Pakistan Penal Code6, the punishment for kidnapping is listed as: "Whoever kidnaps any person from Pakistan or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." At the same time, under section 7(e) of ATA: "the offence of kidnapping for ransom or hostage-taking has been committed, shall be punishable, or conviction, with death or imprisonment for life" Similarly, under section 384 of the P.P.C., "Whoever, commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both" Whereas, under ATA, section 7(h) to be read with section 6(2)(k), "the act of terrorism committed falls under clauses (h) to (n) of subsection (2) of section 6, shall be punishable on conviction, to imprisonment of not less than [five years] but may [extend to imprisonment for life] and with fine" Secondly, the ATA introduces within it certain lenient evidentiary rules that do not exist otherwise under normal Criminal Procedure Code Rules. For instance, ATA section 21H regarding conditional admissibility of confession which states: "Notwithstanding anything contained in the Qanun-e-Shahadat, 1984 (President's Order No. 10 of 1984) or any other law for the time being in force, where in any court proceedings held under this Act the evidence (which includes circumstantial and other evidence) produced raises the presumption that there is a reasonable probability that the accused has committed the offence, any confession made by the accused during investigation without being compelled, before a police officer not below the rank of a District. Superintendent of Police, may be admissible in evidence against him, if the Court so deems fit." Thirdly, offences that are normally compoundable under the Cr.P.C., and the Shariat for example Section 302, Pakistan Penal Code, Qatl-i-amd, are not compoundable under rules of the ATA as confirmed by the landmark Supreme Court decision of Muhammad Rawab7. Although some time has passed from when some of the Judgments mentioned above were passed, cases are still to this daybeing assigned to the ATC incorrectly, cases such as that of Shahrukh Jatoi, or Zainab Amin Ansari, which although of the most heinous and vile nature, do not present any link to terrorism, as it was intended to be defined. For as rightly stated by the Hon'ble Supreme Court in the case of Ghulam Hussain v. The State8 "Even a petty theft in a house in a street is likely to create a sense of insecurity in the people living in that street, a rape of a young girl is bound to send jitters in every family having young girls living in the relevant locality, a murder in the vicinity surely creates a grave sense of fear in the inhabitants of the area, a bloodbath in furtherance of an on-going feud shocks the society, as a whole, a massive fraud in a bank may send shockwaves throughout the banking and financial sectors and an offence committed against a member of any profession may render the other members of that profession feeling vulnerable and insecure. But all such offences are ordinary crimes distinguishable from terrorism because for the former the motivation is personal and private whereas for the latter the purpose has to be to destabilize the society at large."