Abstract

To curb terrorism the Anti-Terrorism Act was sanctioned on 1997. The Aim of this act was to give a speedy result. There are numbers of ordinary cases within the jurisdiction of ATA. It is disturbing and uncertain why these cases were added in ATA. As a result, the difference arises between ordinary crime and terrorism act has been unclear and blurred. It plays a dual role i.e. constrictive and contextual (Kruglanski & Fishman, 2006).  In constrictive role it is helping the interpretation of difficult and ambiguous provisions and the contextual role is helping in the meaning of the text. There are ambiguity presents between superior courts of Pakistan about the terrorism definition and range, which is present in the definition section of this Act (Daraz etl, 2012).

Key Words

Anti Terrorism, Constructive, Superior Courts, Pakistan, and Interpretation

Introduction

The 1997 terrorism Act was sanctioned to curb terrorism efficiently. According to this act, special Anti-Terrorist Courts (“ATC”) was established. The aim of this law was, according to section 13 of the ATA “give swift equity, stop separatist cruelty and guarantee rapid trials in inexcusable crimes”. Since then, the Anti-Terrorism law has been modified through several amendments (Wadhwani, 2011). So in a result terrorist activity rise in Pakistan suddenly.

There is critical flaw of Anti-Terrorism law in Pakistan, that there is a difference between ordinary law and an act of terrorism. According to the reported judgment of ATA has interpreted terrorism, which is still a controversial matter in a trial of terrorism (Atran,2003). The exhaustive analysis of Anti-Terrorism laws shows that there are principal legislative defects in Scheduled Offences and also the preamble of the ATA. There are numbers of ordinary cases within the jurisdiction of ATA. It is disturbing and uncertain that why these cases were added in ATA. As a result, the difference arises between ordinary crime and terrorism acts has been unclear and blurred. This unclear situation raises abuse the process and fair trial (Horgan 2008). 

Throughout the world, terrorism is considered a unique kind of crime. Significantly, terrorism is attacking the security of the state and society. In the last fifteen years, many laws have made to handle this threat. However, these laws are subject to criticism to breach fundamental rights. This Act gives power to police, Civil and Armed Forces and power above ordinary crimes. By the incorporation of Schedule Offence and lax of judicial interpretation, the ordinary crimes tried in ATA. 




Anti-Terrorism Law

The anti-terrorism law has had a massive implication on Pakistan in different ways.  Pakistan has effected economically, politically, socially and militarily. To gauge the impacts of the anti-terrorism law, there is a technological impediment inhabiting a particular incident of terrorists (Bloom R, 2005). Due to this hurdle, unintended results happened and they transfer the attack. Measures are adopted to deter terrorist events happened to particular intervention to handle religious and political extremists or those who are involved with terrorist groups. 

The preamble of this Act is a descriptive and amendable part. It shows the spirit, purpose, and scope of the Anti-Terrorism Law. It plays a dual role i.e. constrictive and contextual.  In constrictive role it is helping the interpretation of difficult and ambiguous provisions and the contextual role, is helping in the meaning of the text. The significance of the preamble shows in various statutes of terrorism i.e. Narcotic Control Substances Act 1997, Act of 1997 Anti-Terrorism, Fair Trial Investigation Act 2013. It is also helping in the interpretation of legislation terrorism cases (Lankford, 2013). It provides stopping of separatist cruelty, terrorism and swift proceeding on the crime of felony heinous. In the third Schedule there are different offences classified in it. Any act of terrorism under section 6 comes in the first clause. There are also other offences i.e. proscribing organization membership, money laundering, providing training, etc. also comes in it. These all offences are related to terrorism so it falls in Schedule Offences. The offence of conspiracy and offence of abetting comes in clause 3 of Schedule Offence. By the amendment of ATA 2005 clause 4 has included too broaden the scope of this Act. A person who attacks imambargah, mosque, church, temple, and other worship places by explosion or firearms also be punished under the Third Schedule of this Act (Silke, 2003). The third Schedule has a desirable need of the ATA to adopt 'Schedule Offence' and reach the jurisdiction of it.  This Schedule is easily merged into the main act of Anti-Terrorism. Section 12 of this Act has modified and it is included in Third Schedule clauses. So in this Act all terrorist acts try in ATCs jurisdiction.

The offence of terrorism has been defined under section 6 of the Anti-Terrorism Act 1997. There is also special anti-terrorist courts are established that have jurisdiction to hear terrorism case. The action included under the definition clause very wide i.e. any act, which causes death, bodily injured, endanger life or intimidates public servant etc. Much amendment has brought in the definition of terrorism for the purpose of broadening the scope of terrorism. Some commentators said the definition of terrorism should be general and specific for the purpose to reach criminal law criteria i.e. motivation and intention.  And specifically reach to the violent action of proscribes organization, such as Hijacking, kidnapping, etc. 

This act gives special powers to police to handle the terrorists. Behind this power, there is also a fast track system to prosecute and convict terrorism accused. This act awarded such power to the Civil Armed Forces, Armed Forces in some circumstances. There is balanced police power to deal with terrorist and not violate the fundamental rights of the accused (Ruters, A, 2011). Additionally, there is a check on police officers not misuse these powers. 

The police officer without a warrant arrests the person who involves in terrorist activities.  Under Cr.P.C. if there is a cognizable offence so it is no need f warrant of arrest by the magistrate. Similarly, police enter in the premises of suspected terrorist without a warrant and take all property possession i.e. arm, weapons or other article use for the commission of the terrorist offence. They are allowed to collect evidence in such a suspected building. In Anti-Terrorism Law Joint Investigation team has established such a team is investigation of the terroristAnti-Terrorism Law is also the handling particular nature of sectarian conflict in the country. This is combating violence between the Sunni and Shia community. Since that religious conflict motivated terrorist activity. This Act primary concerned to handle terrorism, heinous offences, and sectarian violence. The definition of terrorism has defined in this Act is a challenging task. So any act is committing that religious, sectarian violence comes under section 6 because it constitutes terrorism (Shezad, H.Q, 2011). 

The Scope of ATA is Border by the Principle of Nexus

The Supreme Court has changed mens urea based approach in the case of Mehram Ali. Judgment status in this case enjoys an esteem position. However, the petitioner raised one question, in this case, that the government was empowered to amend the Third Schedule and they added such offences, which is not related to the object of this Act. The court responded in this, "in above stated amended Schedule offence hasn't nexus to object of this Act, then such offence notification will be also ultra vires."

The Nexus Principle has two effects, first on the government to stop by misusing the power to include those offences, which had no connection with terrorism. Second, the personal enmity cases were removed within the ambit of this Act. However, it's mentioned by the court in his statement that crime should be related to 6,7,8, the section of this Act. Instance, of Lahore Court Judgment in murdered, has happened near district Courts 2005 P Cr. 963. The judgment of the court held that the firing event happened in public place and firing incident had created insecurity in the mind of people present there. So in this very case, the object had nexus to this Act.




Terrorism and Action Based Approach

The Pakistan Supreme Court has adopted an alternate explanation of the action-based approach. This interpretation plays an important role to determine constitutes terrorism through actusreus and mensrea (Baqir, S, 2011). In 2002 and 2003, the Supreme Court of Pakistan favored a number of decisions of terrorism in the criteria determinative based approach. The judges give their decision to check the nature of the case, which creates fear and insecurity in the general public. In ordinary cases, i.e. robbery, homicide the interpretation of this act was brought by the shock factor and brutal nature. "In general terms, there is fear in person's mind, dead fear of dreadful action of person that caused terrorism fear. Deceased abduction and Dr. Javed murdered Dr. Adam an open place for the reasons that the patient wasn’t satisfied the medical service provided to him, so this caused turmoil and fright opposed the doctor”.

To the analysis of a few judgments, it reveals that the interpretation of terrorism is a controversial question in the proceeding of terrorism. The astonishing point in the definition clause is challenging ATCs jurisdiction. One main reason of confusion and legislative defects is Section 6. Regardless the inconsistent jurisprudence and lack dependency on the doctrine of binding precedent cannot be denied by superior courts. 




Judicial Interpretation 

There are ambiguity presents between the superior courts of Pakistan about the terrorism definition and range, which is present in the definition section of this Act. To decide a case about terrorism so judges divided it into different groups (Naseem. A, 2010). The first point to determine act wether it is terrorism or motivation, object and not consequential effect behind it. 

To determine that particular act is mesrea or actus rea but not consequential effect crea such act. The mensrea based approach-changed version of the principle 'nexus' in Mehram Ali judgment . Further changes were brought by superior courts in Pakistan seriousness of the offence and its outcome on the public at large.

The ATA jurisdiction decisions were unstable. At one place, the superior court supports one point and at another place it support the principle of nexus to the limit of ATA. Although, Mazahar versus The State case the verdict of the court changed legislative intent because of the ATA 2001. According to this amendment, the court determines the case not on the base of schedule offences, but also check the mensrea and actusrea. In another verdicts of Lahore High Court stress on purpose or design action behind act, not action only (Ben. G, 2004).

Now the amended section 6(1)(b) and (c) particularly design the purpose of the act of actus reus. Through this modification in act created in society that private crime does not transform into terrorism. The commission of offence for private purpose caused no destabilization society, but offence committed for terrorism purpose caused destabilization in society. Therefore, a great focus needs to handle terrorism cases on the bases of their purpose behind the action ( Saba.N, 2008). The Supreme Court of Pakistan overruled the decision of the Lahore High Court and the case was remanded to ATC Court . Here Supreme Court has warned care and cautious must observe in delivering judgment. 




Definition of Terrorism under Section 6 

There is an inconsistency present in the interpretation of terrorism by the superior courts and also unclear situation differentiates between ordinary offences and terrorist acts in Pakistan. However, it cannot be denied that the main reason for this inconsistency lays on ATA it. Mainly section 6 is discretion for all those who concerned with it, i.e. prosecutor, investigation agencies and judiciary (Shabana, 2008).

Currently, the general structure of Section 6 derives from of the 2001 amendment of the Anti-terrorism Ordinance. This explanation of terrorism is the same as the UK terrorism Act. Each of the definitions of terrorism contains three elements:

1. The first element that initiates terrorism is an action or threats of action that encircles broad scope of acts i.e. death, damage to property, hijacking, grave violence, taking law in hand, serious coercion with public servant etc. In Section 6(2) of this Act, constitute acts of terrorism.

2. In behind of that action is intention: there must be plans to coerce the Government, the public, foreign government, an international organization to produce a sense of insecurity in society (Basit. A, 2009). This element is present in this Act section 6(1)(c).

3. There must be the motive behind the action: this element is found in section 6(1)(c) of the Act.

For the terrorism commission, it needs particular intention but the word intention is not used in the definition of terrorism.  However, the definition clause consists of the word 'designed to'. In Pakistan, the superior judiciary interpreted this point in many cases offences of terrorism consist of men sera. However, we see in many cases the word intention or mensrea instead of word design too (Bourma. R, 2017). The word contains 'design to' in the definition of terrorism has it in the United Kingdom and Australia but it has replaced with the word intention.

 There is a complexity of section 6 (1)(b). The requirement of this clause is intended for actions, which create insecurity or fear in society. However, in many decisions of courts is not depending on it when determines the intent . This leads to an action-based approach to section 6 while adjudging insecurity and fear in society so keeping in view that the offence was committed in such a manner. Besides, of the words, i.e. 'insecurity in society or the sense of fear' with the part of intention creates two problems. On the first point, these addition words are synonymous with words intimidate, coerce or overawe. Another point of view of unsafely or fright created in society is different from the intent and aim. It is becoming troublesome to expand it circle of terrorism and intention, i.e. murder, serious assault, rape robberies, and entire these actions, producing in society a point of terror or uncertainty (Zaidi. M, 2013). 

The Supreme Courts of Pakistan hasn’t interpreted this clause. Only in the case, Basharat Ali court has referred that motivation is the requirement to determine terrorism. In the mensrea based approach section, 6 clause c motive is interchangeable with section 6 of clause b i.e. intention.

One of the clear defects in section 6 is the word 'of' between sub-section 1 clause (b) and (c). The effect of these clauses increases the range by bordering terrorism. Principally, this act is intended the government or public to intimidate or coerce, which is prompted by revenge, hatred i.e. robberies or group of war. The original form of section 6 (1)(c) is associate to the use of threat for the reason of proceeding sectarian, religious and racial root. So it had similar in this reason to motive needs and also laws of terrorism throughout the globe, besides it encircling separatist motive, ethnic and religious cause.

The second amendment Act, 2013 disable the exact use of motive requirement and presents purposeless. The lack of understanding deceives interaction between motive, action, and intention is remote, but the relevant part of terrorism. This modification disappoints to understand that "freighting the general people, intimidating" associates to the object beyond the act of terrorism, not motivation. The addition of "media, social sector, and business community" is not relevant to the public, community. 

Purpose and Motive Section 6(3) of the Act 1997

The explosives use or any other weapons or firearm, 

that is, designed to pressurize or terrify or the general people and the government has form terrorism, despite purpose/motive. This is the intention to coerce, and intimidate, firearms can easily prove in numerous case law, but it is difficult to prove motive, the purpose behind such actions. In Pakistan jurisprudence, the action-based approach prevalent in section 6 due to this approach worsens and decreases defense against ATA misuse. The overreach of this approach to the ATA is weakening of the political and moral constraint of that crime and it weakens that, particularly terrorism act and crime. The addition of such an unclear term expands the boundary of the special law unsatisfactory extent. Use of a firearm in Pakistan little or more the state has no control over the possession or regulation of it (Jhon, 2009). 

According to the Supreme Court  that Section 6(2) does not encircle the word mensrea or design to but the main word is ‘action’ through that, it adjudged that claimed crimes come in the ambit of terrorism definition section of this Act. In the recent case of the Supreme Court once again signified  nor intent and motive are relevant to determine offence is terrorism but it is ‘the act’, which determines terrorism. 




Communication System Installation 

The 2013 ATA amendment creates great legislative fault and it present no apparent motive result since this change. It isn't necessary, particularly to mention official installations, hospitals, offices, government premises, private or public property caused damage to these properties by itself or by an attack. The addition of these words caused delimit the law. There is a need to include criteria under this section about additional wording. But in the 2013 Amendment reline ransacking, arson or looting. These particular crimes fall within the ambit of ordinary criminal law. By the addition of wording in Section 6(2)(c) expand the scope of ATA to minor and ordinary criminal law. 

By the installation of this system caused serious obstruction or public service or system of communication is seriously disturbing. However, this clause is not controlling the threat of cybercrime but it is limited to control on the attack of public utility services and communication systems. There is a need to increase the scope of this subsection's current technology database like NADARA. This section is too narrow because it focuses on specific actions i.e. death, grievous hurt, damage to property, etc. One other defect of this section is extended to ordinary criminal activities.

The kidnapping for ransom offence is falling in this act. Except, of section 6(2)(e), there are some offenses that is come in the jurisdiction of ATC, i.e. clause 4(i) of the 3rd schedule. There is no need addition of the kidnapping for ransom offence in the Third Schedule because this offence is already covered (Khalid Iqbal, 2008).  To the analysis of cases of kidnapping for ransom in ATA has no link with terrorism. This is particularly assigning the uncertain and insufficient applicability. However, the offence of kidnapping for money is creating a powerful point to finance terrorists . 

Explosive Material

This 2013 amendment of ATA has clarified a person who has explosive material without lawful reason so it's an offence in ATA. In the present time, it is ineffective to add in the definition of terrorism. There is no need for mensrea if a person has explosive material and for that high penalty should be imposed. In ATA there should be made a distinct offence, which is not along with the necessity of intent and purpose like. In this amendment revealed that action is a direct basis of terrorism cases. There is again no need of adding a device of a bomb blast in the definition of terrorism because of serious injury, death or serious damage to the property caused by an explosion.

There are several terrorist groups that are taking laws in their hands. In KPK and FATA individuals are responsible in many cases. In Karachi opponents, members were kidnapped, murdered and tortured for terrorizing the public in society. This act ends by retribution, deterrence and State also passed punishment for such crime. 

There is a flaw of the mensrea element that deals with the actusreus of terrorism section 6(2)(g). For any act of terrorism, there must be the intention of mensrea. But the point of mental part hitherto present in Section 6(1)(b). The aims of this section are to punish all crimes other than a state or punishment not recognized by law. There isn’t any tool to outline it in that particular act is illegal or punish it. There is no scale to differentiate ordinary crime punishment, i.e. murder, kidnapping from other offences. It is relevant to note that any kind of violence against property or person. But it is uncertain if on other acts applies so it is possible to constitute punishment i.e. confinement, fines, forced labor, detention etc. All those offences in which punishment or not awarded by lawful authority are added in this sub-clause but there is doubt about it (Shezad h, Qazi. 2013). 

This subsection 6(2)(j) should be separated that the classification of section 6(2) that it easily deals under ordinary criminal law. There is a possibility of a terrorist attack, which is serious damage to property. There is also damage to burning the vehicle that is common in Pakistan. It happened in an ordinary protest against the government by the rising price of electricity, gas. There is also minimal based violence, which is falling in a special law. However, this act can easily handle by ordinary law. But the addition of these crimes increased the burden on ATCs. 

If serious violence against a person is come under section 6(2) (b) so it is also clear that serious violence against a public servant. By the addition of intimidation, coercion against public servants in section 6(2)(m) decreases the need of section 6(2)(n). By the insertion of this section endanger law enforcement agencies to enlarge the scope of ATA against terrorists in this act. Following to Lahore H.C majority of the FIR claims had made untrue. The injuries were seriously explained to punish the person under the ATA (Faisal Ali, 2014). Due to present confusion amongst the judiciary, police and prosecutor, the clause should be deleted from this act and to stop misuse of the particular law.




Section 6(3A) ATA 1997

In Pakistan Anti-Terrorism (Amdt), Act 2013 gives shape the obligations of international law. In this response, terrorism-related many treaties and protocols are included in the fifth schedule and also come in the jurisdiction of ATCs.  There is also a new provision added i.e. Section 6(3A). This sub-clause is a vague and uncertain legal point of view. This said amendment hasn't brought vital changes in other provisions of this Act for the reason of effective conviction and prosecution of the accused.

This sub-section 6(6) 1997 is unclear and different from the punishment of other offences of ATA. Due to this provision, all listed offences come in this Act instead of strict criteria of section 6(1)(b)(c) and Section 6(2). The different scattered offences of this Act, i.e. money laundering, defective investigation, proscribed organization, etc. try within the jurisdiction of ATCs but it should not, don’t considered as the terrorist act itself. 

The Third Schedule of ATA 1997

Recommendations

In order to clear the requirement of intention, the wording of threat use should be amended threat is made with or use intention. Additionally, there should be an explanatory in the section that underlines the involvement of people in terrorism offence as an integral element. 

The words "create insecurity or in point of fright in society would be excluded to the ambit of the ATA application. The point of insecurity, fear is a broad implication than intimidation, coercion and subduing. This section parlance is uncertain and unclear to perform it efficiently. In other jurisdictions, the menacing word is applied in many ways to the elimination of 'insecurity and fright' sufficiently to capture terrorism in society. 

The intention of the legislation behind under defined should be clear and explanatory notes that point out terrorism from other serious crimes i.e. robbery, assault, murder or rape (Madiha Fazal, 2015). The violence done by public or political reasons is different to the violence by private i.e. jealousy, greed, revenge etc. This sub-clause should also be removed from Anti-Terrorism (Second Amendment) Act 2013 as discussed above reasons. By the introduction of additional reasons i.e. “religion, ethnic or sectarian under this sub-section formed multifaceted terrorism in Pakistan”. To the insertion of racial, political or ideological caused has stopped the politically motivated violence such as in Karachi.

The extent of section 6(3) is reduced to the extent of sub-section 2 that include the use of explosive and not involve firearm action or another arm instrument. Therefore, it is not easy to know the work of explosive material, is not planning to coerce or intimidate the public or government for the reason of advancing religion, sectarian or ethnic cause etc. In the presence of this provision, remain suspicious (Muhammad Riaz, 2014). The explosive use and no action involve by firearm or weapon are mentioned under sub-section (2). But it is a difficult situation that use of explosive isn't planned to coerce or intimidate the general public or this explosive substance use for advancing an ethnic, religious or sectarian or other cause. Therefore, in the presence of this provision creates doubt and omission of this provision may be considered (Sabir shah, 2014).

Sub-section6 (2)(c) should be omitted in the 2013 Amendment because it is not serving any purpose for the effectiveness of the provision. If the ambient of this section is reduced by legislation, then it only covers the attack on schools, hospitals, government premises, and office installation (Ishfaq, 2008). Therefore, it needs to design this sub-section more restricted manner and eliminate the property private or public. Additionally, this sub-section exclude any damage of property, arson looting. The severe destruction of property words should be exchanged by serious damage or harm of property. 

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