ISLAMABAD: The Supreme Court held on Wednesday that the definition of “terrorism” under Section 6 of the Anti-Terrorism Act (ATA) 1997 was too wide since it included actions having no nexus with the generally recognised concept of terrorism.

A 59-page verdict, authored by Chief Justice Asif Saeed Khosa, suggested that parliament consider replacing the definition of terrorism with a more succinct one by bringing it in line with the international definition of that offence and focusing on violent activities aimed at achieving political, ideological or religious objectives.

The apex court also suggested that parliament consider suitably amending the preamble to ATA and also remove all offences from the Third Schedule of the act which have no nexus with the offence of terrorism.

When offences do not qualify to be included in the definition of terrorism, it puts an extra and unnecessary burden on anti-terrorism courts and eventually causes delay in trial of actual cases of terrorism, the verdict regretted.

Crimes committed to settle personal scores cannot be treated as terrorism even if they cause fear or insecurity in society, the apex court observes

A seven-judge Supreme Court bench, headed by the chief justice, had reserved its ruling on April 2 on a number of cases clubbed together to determine the definition of terrorism. The meanings, scope and import of terrorism in Section 6 of ATA had been a subject of controversy in the Supreme Court since different benches deciding different cases had differed with each other as they understood and interpreted the term differently.

The Supreme Court also clarified that crimes designed to settle personal enmity or private vendetta even if they cause fear, terrorise the public or create insecurity in society would not fall within the definition of terrorism.

“It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of sub-section (1) of section 6 of the Anti- Terrorism Act 1976,” the verdict said.

Section 6 (1)(b)(c) of ATA describes terrorism as the use of threat designed to coerce and intimidate, overawe the government or the public or a section of the public or a community or a sect or to create a sense of fear or insecurity in society.

The definition includes offence to advance a religious, sectarian or ethnic cause or intimidate and terrorise the public, media persons, business community or attacking civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies.

History is full of instances where likeminded groups of people have resorted to violence as a tool for achieving political, ideological and religious ends, the verdict recalled.

The resume of our legislative developments in the field of terrorism shows that with different laws and definitions of terrorism, the emphasis had been shifting from one criterion to another, including the gravity of the act, lethal nature of the weapon used, plurality of culprits, the number of victims, impact created by the act and effect of fear and insecurity in society.

The last definition of a terrorist act contained in section 6 of ATA squarely focused on the effect of fear and insecurity intended to be caused by the act.

But the legislature did not feel convinced of the aptness or correctness of that definition and resultantly, the previous definition of terrorist was repealed and a fresh definition was introduced, the verdict said.

The legislature had probably realised by then that the effect of an act may not always be a correct indicator of the nature of such act as every crime, especially violence against person or property, does create some sense of fear and insecurity in some sections of society.

Based upon the magnitude or potential of an effect created would require a premature, speculative and imaginary quantification of the effect to determine the nature of terrorism and decide about the jurisdiction of a criminal court to try such an act.

That surely is an unsure test and the result of such a premature, speculative and presumptive test could vary from court to court and from judge to judge, the verdict said, adding that the new definition of terrorism introduced through the amended section 6 appears to be closer to the universally understood concept of terrorism.

Therefore, it is no longer the fear or insecurity, actually created or likely to be created, that would determine whether an act is terrorism or not. Now the intent and motivation behind the action would the determinative of the issue irrespective whether any fear and insecurity was actually created or not, the verdict explained.

Creating fear or insecurity in society is not by itself terrorism unless the motive itself is to create fear or insecurity in society and not when fear or insecurity is just a byproduct, fallout or an unintended consequence of a crime, the verdict clarified.

The international perception is also becoming clearer on the point that a violent activity against civilians that has no political, ideological or religious aims is just an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism, the judgement said.

Published in Dawn, October 31st, 2019