The Chief Justice of Pakistan (CJP) Asif Saeed Khan Khosa identified a pervasive legal issue that exists in our judicial system today- that of the relevance of special courts, particularly the Anti-Terror Courts (ATC). The CJP observed that many offences of serious nature, which were referred to military or anti-terrorism courts, did not come under the purview of terrorism and were only relegated to these special courts because of public outcry.

An overview of the many cases tried in the ATC would demonstrate that the assertion by the CJP is true. Many ordinary cases of theft or murder, while heinous, are not related to the national security aspect that comes with terrorism, but are tried under the ATC anyway. The CJP has noted that this problem occurs due to a vague definition of terrorism in the Anti-Terrorism Act 1997. In legal terms, the “actus reus”- element, which constitutes the specific action that would constitute terrorism, is too straight-forward in comparison to the “mens rea” aspect, the intention of spreading terror that should accompany the act. For example, Section 6 (2) of the ATA provides a long list of actions which could be defined as acts of terror, including kidnapping or ransom, but Section 6 (1) which outlines the intent with which these actions should be committed is quite vague, containing provisions like, “create fear or insecurity in society”. Reading along these lines, ordinary criminal acts can easily be lumped with special cases of terror.

The way it is, the ATC are often misused to impose harsher conditions on convicts of non-terrorism related crimes. The special procedure ascribed in the ATC, such as denial of bail, extended remand of suspects, preventive detention, enhanced police powers and harsher sentences, was intended only to be applied to terrorists groups and action which posed a threat to the country, not to civilian crimes.

With the expiry of the military courts, this is a good time that the CJP has chosen to take on the issue of specialised courts and restriction of the ATC’s jurisdiction. While amendments in the ATA by the parliament would be ideal, the Supreme Court can contribute a lot to reforming the ATC. In the past, the judiciary has oscillated in its interpretation of the definition of terrorism, which led to a definition without any substantive threshold requirements, expanding the ambit of the terrorism law to numerous ordinary crimes. Now is the time for the Court to rectify that and provide a decisive and restrictive definition.