Frivolous litigation

By M. Zaidi | 12/10/2012

LITIGATION that is tangential to hard-core terrorism accounts for a huge proportion of cases tried in the Anti Terrorism Courts (ATCs) and thus takes up a correspondingly large proportion of both time and resources.

This prevents the courts from devoting time and energy to important cases.

It is an established fact that the police incriminate accused persons under the Anti-Terrorism Act (ATA), 1997 when they want long prison sentences for, or deny bail to, suspects. Many litigants misuse the stricter sentences given in the ATCs to bring false cases against their rivals.

Kidnapping for ransom is one such crime; strictly speaking, it is not a hardcore terrorist offence unless terrorist organisations are involved. However, many, if not most, kidnapping cases are out by a wide variety of criminals, organised or otherwise.

Kidnapping for ransom accounts for a huge proportion of the caseload on the ATCs.It has been reported that the Section 365(a), pertaining to kidnapping for ransom, has been misused by people to settle financial and other disputes. These cases land in the ATCs since, by default, they are only to be tried by the ATCs.

Then, the ATA casts a very wide net.

Since Section 6 of ATA gives a very broad definition of terrorism, many criminal actions fall under this ambit.

Brutal murders are terrorism, so is aerial firing, as well as damaging an electrical transformer; all these fall under purview of the ATA.

This wide-ranging definition creates a host of offences which can be tried under the ATA; the sole criterion is that the offence should `create terror in the public`. What terror in the public entails is being interpreted by unqualified, poorly trained and low-ranking police officers, who are also susceptible to external pressures and corruption. Thus, Section 6 can become a tool in the hands of the incompetent, which just adds to the huge caseload weighing down poorly equipped ATCs.

Then, there is the category of cases in which the accused may not have links with militant organisations, but is suspected of having committed such heinous acts that the charge of inducing fear in the general public cannot be denied. For instance, in the infamous Tipu Truckanwala case, a paid assassin was hired to shoot down an opponent of the accused at the Lahore international airport.

This is the sort of crime that highlights why it is so difficult to extricate such nonterrorist crimes from the ATA. The judge wrote in his ruling that `Needless to mention that it [the airport] is an important place where not only a large number of ordinary people but also VVIPs, including international celebrities, land and board aircraft to accomplish their respective jobs ... the people present there must have felt a sense of insecurity and panic....` Thus, the judge reviewed this case under Section 6 of the ATA.

This is just one of the many such cases of blatant violence that occur throughout Pakistan, and it is hard not to perceive them under the ambit of the legally elicited definition of terrorism. The definition of terrorism itself then is a problem; unless it is refined further to include cases of actual terrorism only, cases of criminal violence will continue to be included under that head.

In another case, a man was accused of firing at a police picket near the shrine of the venerated saint Data Sahib, which is visited by millions of devotees every year.

Such blatant acts of violence represent the inherent dilemma if such cases are tried by ordinary sessions courts, it is easier to get bail there. Also, such accused will not face the deterrent of having been tried under the ATA, which gives severer punishments and makes ball in such cases almost impossible.

On the other hand, many such acts of blatant violence occur in Pakistan and if these are always included within the ambit of the ATA, it exponentially increases the ATCs` caseload. That results in poor case management by both the police and the prosecution, leading to acquittals. This problem has always faced legislators in Pakistan considering changes to the ATA.

In Pakistan, the idea that kidnapping for ransom is a terrorist act is well entrenched. This is notwithstanding the fact that in many cases, the abducted person is quietly taken away and his relatives do not raise alarm out of fear that the victim will be harmed. In many cases, the first information reports with the police are lodged late, a fact which even the judges are prone to forgiving.

However, legally speaking, it is difficult to understand how such quietly handled cases, no matter how heinous, cause terror amongst the public at large though of course this is a legal viewpoint only. On the other hand, kidnapping for ransom itself is a heinous crime, and it terrorises the public, no matter how quietly the crime is carried out. Thus, in such cases, judges are very comfortable applying the definition of terrorism.

Then, there are those cases in which the definition of terrorism is applied to public protests.

For instance, in an instance of murder after which the relatives of the deceased demonstrated their anger by aerial firing and pelting stones at the police, a case was registered under the ATA since they had terrorised the public by aerial firing. This case could easily have been tried by the ordinary sessions courts, but sections of the ATA were added since any attack on the police is not tolerated.

These frivolous cases are thus the biggest structural problem in the ATA, since they although they are not really definite cases of terrorism take up 90 per cent of the ATCs` time. There has to be a rationalisation now of the definition of terrorism, as well as better case management on the part of ATCs in order to relieve the stress on the criminal justice system.
The writer is a security analyst.