What is terrorism? Political scientists like Bruce Hoffman say that there are many means to commit terrorism but the eventual end is to attain a “political change”. UN Security Council Resolution 1566 of 2004 states there must be an intention to cause death or serious injury to provoke a state of terror in the “general public” or compel the government. Laws made by the Parliament are never in vain and always possess history of their origins. In Pakistan, sectarian/ethnic violence, target killings, radical religious fanaticism have plunged in. It is precisely these degenerate plagues which sit behind the introduction of Anti-Terrorism Act 1997.

Consider two hypothetical examples:

Ali and Ahmed are disputants over the ownership of a piece land. Ali plots to put an end to the dispute, using a gun he sprays bullets on Ahmed at a shopping mall in broad daylight, killing him and then flees immediately.

Amjad is a member of a notorious banned outfit in Pakistan which vehemently opposes the ideology of the state and the society. He plans to send a message to the society at large and in doing so plants a bomb in a popular, vibrant shopping mall in broad day light on a Sunday. The Bomb explodes resulting in multiple death tolls and serious injuries. Bystanders present witness the explosion.

To me, the latter fits in the definition of terrorism and is therefore, a terrorist because Amjad has resorted to bombing not predominately to butcher or maim but, to him it is a means to an end which is illustrated by Amjad’s disdain towards society’s normative ideology. The bomb has not only stirred up fear in the people but seeks to acquiesce the state to change its ideology to the one advocated by his organisation. Therefore, Amjad’s end was politically motivated. The ulterior purpose in his mind was not to kill or injure but, to forcibly demand a radical shift in the social and political ideology of the state.

On the other hand, Ali has no ulterior purpose to have an effect on the perception of the people in general. Of course, there were bystanders present who would certainly be shocked, riled, intimidated to witness the tormenting image of a mutilated body drenched in a pool of blood. The only purpose for the killing in this case was a private dispute between Ali and Ahmed. Therefore, Ali has certainly murdered and is to be tried for it but, he has not intended to cause terrorism.

However, Anti-Terrorism Act 1997 has added a bulwark of confusion in defining what terrorism is. As a result, courts have had varied responses to this law and no proper parameters have since been able to be set thereby, causing legal uncertainty. Section 6 does not clearly delineate between achieving committing crime to achieve political ends and common criminal delinquency. i.e. if an act of murder, dacoity, by using weapons or explosives is done, it will constitute terrorism. Further adding to the confusion, Parliament has inserted in the preamble of the legislation that “heinous offences” are to be tried under ATA 1997. The result has been that, courts have become muddled by the language of it and have at times sought to broaden the definition of terrorism to include all serious offences like rape, dacoity, murder etc.

For example, in the case of Mirza Shaukat Baig v Shahid Jamil, nine armed individuals started firing in the market and committed murder of four people subsequently committed dacoity. The Supreme Court said that, in order to fall under the definition of terrorism any intention of the accused is not required and that the definition of terrorism only requires the action committed by the accused. It transpires that, the idea is that fear will be presumed whenever someone kills somebody in the public or even merely harms an individual thus making the perpetrator a terrorist.

Such a broad interpretation places the person who has slaughtered people on the basis of a radical political, socio-economic ideology on the same footing with a person who has murdered while committing dacoity, kidnapped for ransom or damaged property. The latter will unreasonably be socially labelled as a terrorist. This means that the perpetrators of the despicable Army Public School attack in Peshawar 2014 are no different from a person who murdered another person in broad day light.

Inevitably, ordinary criminal cases such as (murder, serious harm caused (which are to be tried through the usual court process are preferred to be tried by Anti-Terrorism Court. As a result, the Anti-Terrorism Court is inundated with ordinary cases, exacerbating the prevalent backlog of cases problem. More importantly, such a broad interpretation which focuses on the finality of action namely, the element of fear, shock, unease felt by the people witnessing, does not take into account that, every criminal act of any nature sparks to some extent an element of fear, shock. Therefore, assessing terrorism merely on the basis of perceived fear of the witnesses effectively opens flood gates for the prosecution to label an accused having committed a normal criminal offence as terrorism.

On the other hand, the then Justice Khosa of the Lahore High Court, now the Chief Justice of Pakistan quite validly held in Basharat Ali v Special Judge, Anti-Terrorism Court II, Gujranwala that, to say anybody has committed the scourging act of terrorism depends on what the person had intended to achieve from the offence. His measuring yardstick is that one must ascertain if the killing was as a result of some private dispute or there was a private aim. The implication of his reasoning is that only special, specific cases which involve carrying out of a criminal activity to further a “political agenda” will attract the ATA 1997. This coincides with the growing international literature. R v Gul decided by the UK Supreme Court, Sriskandarajah v USA by the American Supreme Court are all landmark cases in which the courts have adhered to the general understanding of terrorism as concept embedded to achieve a political objective by holding the state hostage.

There are number of cases till this date, which have followed the direction of Mirza Shaukat Baig as well as Basharat Ali’s case, both having different interpretations of the ATA 1997 resultantly having diametrically opposed outcomes thereby, causing a profound inconsistency in the law. To end this, an amendment to the existing definition by the Parliament is imperative to reflect that, terrorism is a violent enterprise to achieve a political change.

The writer is a Barrister and can be reached at rajahamzaanwar

786@hotmail.com

However, Anti-Terrorism Act 1997 has added a bulwark of confusion in defining what terrorism is.