South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

THE Financial Action Task Force has announced that Pakistan would remain on its grey list for further monitoring for another four months. In this period, the country will have to improve its financial transaction mechanisms so that these are not misused by terrorists and criminals. Apart from other measures related to effective investigation and prosecution, and the implementation of eventual sanctions, Pakistan would also have to make more laws in order to comply with the mutually agreed action plan.

Pakistan amended or made almost three dozen laws during the past year to meet the FATF requirements. All these changes and new laws were essential to bring Pakistan out of the FATF’s grey list in order to dispel the negative impression about the country’s ‘soft stance’ towards certain militant groups. More than a year ago, the Supreme Court had also recommended that parliament develop a new and comprehensive legal definition of terrorism. Apparently, as the Supreme Court judgment did not detail any punitive consequences, the government did not take it seriously despite the fact that a clear definition of terrorism would have not only brought clarity to counterterrorism functions but would also have improved the government’s performance in implementing FATF-related measures.

The term ‘terrorism’ is still defined in a vague and contradictory manner.

The legal community and law-enforcement agencies have been demanding an amendment to the definition provided in Section 6 of the Anti-Terrorism Act (ATA) 1997, but the state has been reluctant to touch it. Ironically, the persisting, decades-long challenges of religiously motivated terrorism and violent extremism have failed to ‘influence’ the policymakers for that.

In its judgement, the Supreme Court had observed that the definition provided in Section 6 of ATA 1997 had failed to capture the essence of terrorism and had often been misused for multiple reasons. The court was in particular concerned about the legality of the definition. In Pakistan’s legal or policy lexicon, the term ‘terrorism’ is still defined in a vague and contradictory manner, to the extent that it is not fully clear what ‘terrorism’ is and what distinguishes it from other forms of political violence.

Since its inception in 1947, the country has encountered several waves of political agitation and violent movements, which have been ethnic, linguistic, sub-national, communal and religious in nature. Violent religious, political and ethnonational movements continued posing security threats throughout the country’s history. Violent protests against religious communities, especially the campaign against the Ahmadi community in Punjab in 1953, insurgencies in Balochistan, ethnic and linguistic-based violence in Karachi, low-scale ethnonational violent agitations in Sindh and Khyber Pakhtunkhwa, and sectarian conflict in Gilgit-Baltistan shaped the security approach of the state.

Organised religious movements for the enforcement of the Sharia, and sectarian disagreements, both of which turned violent time and again, posed a more complex security challenge for the state. Despite facing all these challenges, it took Pakistan 50 years to define terrorism in 1997, and even so, the ambiguities still surrounding the definition forced the Supreme Court to weigh in. All through the various legal measures that Pakistan has taken to deal with terrorism-related security challenges, the legal definition of terrorism has remained vague. It is far from being comprehensive and criminalises expressions of sectarian hatred and certain violent political acts, which are already listed as punishable offences under the Pakistan Penal Code (PPC).

Pakistan does not have any official definition of extremism either and usually, extreme actions of religious hatred come under the PPC or ATA domain. Violence is an integral part of terrorism, militancy or insurgency, whereas extremism may employ persuasion manoeuvres to draw advantage. For example, the banned sectarian outfit Sipah-i-Sahaba Pakistan has consistently claimed to be a non-violent movement, but its leaders have often indulged in inciting violence against another sect and yet got legal relief by not being found directly engaged in perpetuating violent acts.

Nationalist insurgents and religious militants use terrorism as a tactic to create chaos, disorder, fear and to undermine the state’s authority. They also employ other tactics to attract people and expand their support base, including via provision of social services for locals, offering alternative delivery systems, such as maintaining law and order and setting up informal courts as the Taliban did in Afghanistan and the UNSC-designated terrorist group Tehreek-i-Taliban Pakistan (TTP) did in Pakistani tribal areas.

They also run their propaganda campaigns, and their activities other than violent actions have similar objectives, but can these too be described as terrorism? Section 6 (5) of the ATA does say that any act undertaken for the benefit of a proscribed organisation amounts to terrorism. When former TTP spokesperson Ehsanullah Ehsan surrendered to the security forces in 2017, he claimed amnesty on the ground that he had never been part of the TTP’s terrorist operations, rather his task was confined to running its media affairs. Hence the question: who is a terrorist? Are terrorists only combatant units or non-combatants as well? And does every action of a terrorist, even if non-violent, automatically and always amount to terrorism?

The confusion deepens when one tries to distinguish between terrorism and terrorists. Before his eventual indictment in a terrorism-financing case, the legal advisers of Jamaatud Dawa chief Hafiz Saeed had pleaded in court that he had never been found involved in any terrorist activity in Pakistan and he did get relief from the courts every time. There have been many other examples of this sort.

In a nutshell, parliament has to develop a clear definition of terrorism. Causing fear, violence, the deliberate nature of the act, targeting of civilians, disturbing the domestic, regional and global order, issuing threats (all this by non-state actors) are some common vital elements in every definition of terrorism. However, all these expressions need to be defined as well. The task is not beyond the capacity of parliament and it can restrict the meaning of terrorism within the jurisdiction of the crime and political/ideological motives, and avoid broad interpretations and political misuse.

The writer is a security analyst.

Published in Dawn, March 7th, 2021