A legal framework to combat terrorism in Pakistan has been provided in the Anti-Terrorism Act, 1997(ATA).1 The act provides for the prevention of terrorism,2 sectarian violence and for speedy trial3 of heinous offences, including the matters concerned and incidental to such acts.4 The act has defined several offences, which can be termed offences relating to terrorist financing. The legal provisions relating to Criminalization of act of terrorism include the following transactions.
— Soliciting, collecting or raising funds5 by a proscribed organisation.
— An invitation to provide money or other property6 in order to use them for the purpose of terrorism.
— Recipient of money or other property7 with the intention to use or having a reasonable cause to suspect that the funds received may be used for the purpose of terrorism.
Provider of money or other property8 in order to use the same for the purposes of terrorism where the recipient knows or has a reason to believe that money received may be used for terrorism.
— User of money or other property9 who has the knowledge that such funds are meant for the purpose of terrorism.
— Possessor of money or other property10 with the intent to use it for terrorism or there exists a reasonable cause to suspect that it may be used for the purpose of terrorism.
— Making an arrangement as a result of which money or other property is made available or is to be made available11 and where a cause exists to suspect that it may be used for the purposes of terrorism.
These acts broadly fall within the definition of financing under the ATA.12 The law clearly criminalizes the provision of money or property13 however, it does not specify that the provision of funds could be indirect14 and the same makes it restrictive. It may, however, depend on the courts who may take a broad interpretation. As per the existing law, where the court is satisfied that an accused knew or is suspected that the received funds were to be used for the purposes of terrorism, cognisance of the offence is likely to be taken. The terms specified above are comprehensive and extend to both direct and indirect methods of fund provision and collection.
The act of collection or what may be construed as forms of collection stands criminalized in the following manner:15
(1) Soliciting, collecting or raising funds for a proscribed organisation.15A
(2) Inviting another to provide money or other property.16
(3) Entering into or to become concerned in an arrangement as a result of which money or other property is made available or is to be made available to another for the purposes of terrorism.17
The existing provisions of law unambiguously criminalize collection of funds made by proscribed organisations. In relation to the other forms of terrorist financing (TF), such as the financing of acts of terrorism, the ATA is much less clear. The crime of inviting another to provide financing appears on its face to be too narrow. The law refers to a direct communication with one other person, and the mass collection of funds that may not involve direct communication such as placing donation boxes at appropriate places stand out of the ambit of TF. While courts may very well construe such an act as an act of inviting another and it may be noted that the words on their face are not very explicit especially by contrast to the acts of “solicitation, collection, or fund raising” for a proscribed organisation.18 It appears as if singular form wherever used is construed as embodying the plural as well, however, the judicial interpretations of the word ‘another’ will determine whether or not they said words cover invitation at large, or to a body of persons.
The term collection has explicitly been criminalized particularly with reference to proscribed organisations and uses a different language, for example, the word invite another to provide has been used. This variation in the language cannot be considered meaningless because it is agreed universally that legislative interpretation assumes that the law-maker is purposeful and that legislative language cannot be presumed redundant or meaningless.
The act of entering or becoming concerned with an arrangement19 appears to be broad.20 The Act does not define “an arrangement.” It is reasonable to understand that such a term captures all schemes and all arrangements for collecting, soliciting or fund raising; this act may include placement of donation boxes, dispatching individuals to collect funds, or even selling publications and other items with the ultimate objective of collecting funds. It will however be subject to judicial interpretation and it is not as straightforward as the term “collection connotes.”21
Possession of money or other property too has been criminalized and the law may apply to some of the acts of collection. The provisions of statute in this regard are broad and can necessarily capture many instances of collection. The legal provisions however fail to cover the masterminds of collection schemes as the planner never takes physical possession of the funds. However, the concept of -“constructive possession” may cover such situations. The existing ambiguity if any can only be resolved through the decisions of the courts.22
The provisions of ATA cover the act of providing funds, and cover a wide-range of the acts of collection. These provisions of law provide a gap leaving some acts of collection outside the scope of the Criminalization as the legal provisions have failed to extend a straightforward Criminalization of “collection” except in relation to proscribed organisations.
Apart from the specific offence of financing relating to proscribed organisations, all other offences pertain to forms of financing meant for the act of terrorism.23
The ATA does not define the term “for the purposes of terrorism.” It does however define “terrorism”.24 The word “for the purposes” can be interpreted in a way to broaden the scope of the statute. Some of the gaps identified can be addressed through such broader interpretation. That is why when a gap is identified it is described more as an ambiguity rather than outright omission or exclusion.
“Terrorism” has been defined as to include any act done for the benefit of a proscribed organisation.25 In addition, terrorism includes the use or threat of certain types of violent actions when the threat is designed to coerce and intimidate or overawe the government or the public or a section of the public or community or sect and create a sense of fear or insecurity in society26 or “the use or threat is made for the purpose of advancing a religious, sectarian, or ethnic cause.”27 The law excludes the necessity for proving any specific purpose when the action carried out or the threat involves the use of firearms, explosives or any other weapon. In these broad instances, the action is classified as terrorism regardless of any specific purpose or intention.
The action which constitutes terrorism or an act of terrorism, when used or threatened for the designed purposes, extends to a wide-range of violent acts against individuals as well as property. For example, the following actions are relevant so as to constitute an act of terrorism:
(1) Action involving the doing of anything that causes death;
(2) Action involving grievous violence against person or grievous bodily injury or harm to person;
(3) Action involving grievous damage to property;
(4) Action involving the doing of anything that is likely to cause death or endangers a person’s life;
(5) Action involving kidnapping for ransom, hostage-taking or hijacking;
(6) Action designed to seriously interfere with or seriously disrupt communications system or public utility service;
(7) Action involving serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his awful duties;
(8) Action involving serious violence against member of the police force, armed 1forces, civil armed forces, or a public servant;
(9) Action creating a serious risk to safety of public or a Section of the public, or is designed to frighten the general public and thereby prevent them from coming ma and carrying on their lawful trade and daily business, and disrupts the civil life.
It is proposed that the definition of terrorism and the purposes of the financing of such offences be extended to all the acts that constitute offences under any of the terrorism conventions including the Convention on the Suppression of the Financing of Terrorism.27
While the ATA does not refer specifically to the Terrorism Conventions under Pakistani law prescribing the offences defined under this set of conventions. The ATA defines acts of terrorism very broadly as shown above. It is very likely that the courts of law may include through their interpretation all the acts prescribed under the conventions to which Pakistan is a Party.28
A proscribed organisation is an organisation that the federal government has listed it by order in the First Schedule to the ATA where it has reasons to believe that such organisation is concerned in terrorism. So, to the extent that the federal government have proscribed an organisation through First Schedule, the provisions of ATA in that respect will become applicable.29 The ATA does not however gives the court the power to convict a person for any of the financing offences.30 Where the act is done for the benefit of an organisation that has not been proscribed, the courts cannot take cognisance even if that organisation is categorised as terrorist within the definition of ‘terrorist.”
ATA proscribes a wide-range of financing acts that cover a major part of the possible acts of “provision and collection.” The offences defined31 may leave some minor gaps in the coverage of possible acts of collection. The breadth of the definition makes it reasonable to conclude that this would be the case when the issue arises before the courts.
The ATA offences do not however extend to the financing of terrorist organisations that have not been proscribed. It does not extend to the financing of individual terrorists. Worth noting is that the Act contains a definition of “terrorist” that covers both individual terrorists and terrorist organisations.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi. To see author’s other areas of interest visit Zafars Blog on International Studies http://blogoninternationalstudy.blogspot.com/)
1. Act No xxvii of 1997.
2. See the preamble to the ATA.
3. Expeditious trial and early conclusions are necessary for meeting the ends of justice, see 2004 Cr. L.J. 120.
4. The offences have been defined in Section 6 of the Act. The issue that whether or not Criminalization of terrorist financing is in line with the standards required by international law is required to be reviewed.
5. See the provisions of Section 11 F (5) of the ATA.
6. 1d 11 H (2).
7. 1d 11 H (3).
8. 11 I (1).
9. 1d 11 I (2).
10. 1d 11 I (2).
11. 1d 11J.
12. See the provisions of Section 11 of the ATA. The question here is whether the acts criminalized by s.11 ATA would cover the meaning of “collection” and “provision” of funds directly or indirectly as required by the act.
13. 1d 11 H (3).
14. 1d. A similar approach may apply to the interpretation by courts of the acts that constitute terrorism financing.
15. See section 11of ATA.
15A. 1d 11F (5).
16. 1d 11H (1).
17. 1d.
18. See the provisions of Section 11 F (5).
19. See Section 3 of the act.
20. It is not however free of ambiguity.
21. This does not preclude that these acts may be covered by s, 11 J if the courts interpret that Section broadly.
22. s. 11 (1) (2).
23. See Section 11D (5).
24. See Section 6.
25. See Section 6 (5) of the ATA.
26. See the provisions of Section 6 (1) (b).
27. See the provisions of Section 6 (3).
27. Pakistan is party to11 out of the 12 applicable conventions, the only exception being the Convention on the Physical Protection of Nuclear Material. See also the Fifth schedule to the ATA.
28. See the provisions of section 6 (5) the definition of terrorism includes any act done for the benefit of a proscribed organisation.
29. Any of the financing acts under ss.11H-J, stand criminalized if these are carried out for the benefit of such an organisation.
30. See provisions of S, 11 H and 115 the ATA also does not include in the definition of terrorism acts done for the benefit of individual terrorist despite the existence of s.6 (7) definition of -terrorist” that is consistent with the definition of “terrorist” and “terrorist organisation” under SRII.
31. 1d, Section 11.
Zafar Azeem, "Criminalization of terrorist financing in Pakistan," Business recorder. 2013-10-03.Keywords: Social science , Social issues , Social needs , Social rights , Social problems , Terrorism , Terrorism-Pakistan , Attacks , Terrorists , Violence , Murders , Pakistan