There has been some talk of amending the Anti-Terrorism Act of 1997 (ATA) to make it more effective in its response to terrorism. It is therefore instructive to view the anti-terror mechanism envisaged by the ATA and see why, despite this law, terrorism has grown unchecked.

The ATA was enacted with a specific purpose: To provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences. The ATA defines acts of terror under Section 6 of the said Act. This is a broad definition which covers everything from intimidation of state authorities to acts calculated to create insecurity in society. However, when it comes to implementation, we have seen that the law has failed to deliver because of its creative application in cases where it does not apply. For example, in what has to be a case of turning the intent on its head, this year members of the Ahmadi community in Gulshan Ravi were charged under the ATA after a group of brigands invaded their place of worship and destroyed their property. The brigands then got the police to register an FIR under the said law because during their illegal raid, they chanced upon religious material of the community which supposedly offended their religious sensibilities.

Even otherwise, the application of the law in cases unrelated to terrorism has contributed to the dilution of its legal effect. The Shahzeb murder case is one such glaring example. It was an open and shut case of murder arising out of a dispute, yet through an amazing feat of legal gymnastics it was fit into the definition of terrorism under Section 6 of the ATA. Consequently when the matter was resolved through Qisas and Diyat (Q&D) Ordinance, the ATA indictment fell through the gaps. Indeed the indictment under the ATA was most probably done in order to bypass the Q&D Ordinance. Herein lies the rub: If we are to accept the logic used in the Shahzeb case, every instance of premeditated murder can ostensibly be placed within the definition of terrorism under the ATA. But then this would defeat the original intent behind enacting the ATA in the first place, i.e. the creation of a parallel special court to deal with matters of terrorism. Similarly, in Mukhtaran Mai’s rape case, the perpetrators of the heinous crime were charged under Section 7(c) and 21(1) of the ATA because it was deemed to be an act of terrorism.

There is a very logical reason why high profile murder or rape cases are put into the terrorism bucket. It is because the prosecutors just don’t have sufficient faith in the primary statutes governing murder or rape. However, the answer to this is not to throw everything at the accused hoping something would stick. It is to ensure that primary statutes for cases such as murder and rape under the Pakistan Penal Code are sufficiently effective in dispensing justice. This would mean fewer, and not more laws. For example, the Q&D Ordinance as well as the Hudood Ordinances are distractions from the cause of justice whether we like to admit it or not. It goes without saying that these laws are based on very selective interpretations of Islamic jurisprudence which serve the orthodoxy by elevating form over substance. This is why till the Protection of Women (Criminal Laws Amendment) Act 2006 was formulated, rape victims were being charged under the Zina Ordinance while their rapists went about scot free. Unfortunately, we do not learn from history.

The Council of Islamic Ideology under the extremely narrow leadership of Maulana Sherani has already moved to undo the many good things about the Protection of Women (Criminal Laws Amendment) Act 2006. Individuals accused of murder or rape not for ideological reasons may well object to the ATA indictments as being ultra vires Article 10-A, the right to fair trial, of the Constitution.

Then we come to terrorism. There is a great need to make the definition of terrorism narrow and focused. To begin with terrorism includes within its ambit only those acts of violence which are perpetrated against civilian populations and civil authorities. Furthermore, these should also be limited by the existence of pre-meditated as well as an ideological motive, i.e. ethnic separatism or jihadi pretensions. All other forms of violence must then be referred to the regular criminal legal stream under various laws such as incitement, rape, murder, disorder, etc.

Unless we give the special anti-terrorism courts the room to breathe, the whole exercise of amending the ATA will be futile. What is needed at this moment is a law that specifically targets violence intended to create terror in society on political grounds. Any and all acts from murder or dissemination of proscribed publications can then be brought into the ambit of the ATA provided that these actions stem from an ideological motive and the intent to carry out attacks against non-combatant civilian populations and civil authorities of the country. Reprehensible as certain crimes may be, the adequate remedy for any other crime should not lie before the ATA. To insist otherwise is a grave violation of Article 10-A of the Constitution as well as patently absurd given that the nation is at war against terrorism.