By Nimra Azmi
In 1999, Pakistan passed an amendment to the 1997 Anti-Terrorism Act. This Amendment listed gang rape, child molestation, and robbery coupled with rape as terrorist acts under the ATA. When the 1999 Amendment was passed, rape (zinā’ bi’l jabr), which included the ATA sexual offenses, was governed by the Zina Ordinance, a component of the 1979 Hudood Ordinances. Under the Hudood Ordinances, zinā’ bi’l jabr cases were first tried in the trial courts, under a Pakistani formulation of Islamic law, and the Federal Shariat Court had appellate jurisdiction over them.
The 1999 Amendment brought these offenses into the jurisdiction of the newly constituted Anti-Terrorism Courts. These courts were created for the purpose of hearing ATA-named terroristic offenses, over which the civil High Courts held appellate jurisdiction. The express jurisdiction of the ATCs over sexual offenses was short lived: a 2001 Amendment to the ATA quietly removed gang rape from the statute’s definition of terrorism.
The ATA outlined the punishments for most of the delineated terroristic acts, but for sexual offenses, the 1999 Amendment merely stated that the culprit is “liable to the punishment prescribed under the relevant law.” The Amendment, however, did not name the “relevant” law. The ATA also provided no substantive law on gang rape—it neither defined the crime nor laid out its elements. The ATA only changed the original and appellate jurisdiction over gang rape cases from the trial courts and the FSC to the ATCs and High Courts. Thus, the Anti-Terrorism Courts applied the law as it would have been applied in the trial courts and ensured that the local High Courts, not the FSC, heard ensuing appeals. Jurisdiction over gang rape cases became even foggier when the 2002 ATA Amendment removed sexual offenses from the ATCs’ jurisdiction and yet the ATCs continued to hear those cases under an understanding of “grievous harm” which included gang rape.
The new Section 7 of the 2001 ATA, which remains good law, allows the ATA to try individuals who threaten or used “action” which is designed to “coerce and intimidate or overawe” the Government, public, or section of the public and caused “grievous bodily harm or injury…to any person.”
The inclusion of sexual offenses, however briefly, under an act designed to protect national security is noteworthy and unique to Pakistan. In Pakistan (and the United States), measures designed to further national security (the Patriot Act in the U.S. for example), are often perceived as using emergency to extend governmental power and circumscribe individual liberty. The ATA and its ever-expanding list of crimes can be read the same way (the ATA has been amended over a dozen times since its 1997 promulgation, largely to increase its authority particularly post-9/11. Like the Patriot Act, the ATA has also been accused of being a tool to silence political dissidents). Yet the brief inclusion of sexual offenses under the ATA is anomalous, both for the seeming disconnect of these crimes from “traditional” national security offenses and for its swift removal from the ATA.
There is no readily available legislative history to be traced for the inclusion of sexual offenses in the ATA. However, the sexual offenses provision of the 1999 Amendment may have resulted from Pakistani lawmakers’ understanding that sexual offenses like gang rape, child molestation, and rape with robbery uniquely incited terror within a community and particularly the most vulnerable in those communities, women and children. The expressive significance of calling gang rape an act of terror is undeniable. So is the epidemic of rape and child molestation in Pakistani society with perpetrators often never seeing the inside of a courtroom let alone a prison. The trial courts’ inefficiency in dispensing justice when combined with the fact that the ATCs were expressly designed to deliver speedy results to the most grievous harms may have also contributed to listing these sexual offenses under the ATA.
Then why remove sexual offenses from the ATA a mere two years later? Perhaps it was an acknowledgement of an overreach of power. The clear mention of sexual offenses may have dropped in favor of the broader formulation the ATA adopted in the Amendment. It may even have come down to the confusing jurisdictional question, but as the Pakistani Supreme Court’s 2011 decision in the Mukhtar Mai case shows, the ATCs continued to hear gang rape cases even without the ATA gang rape provision. The clutter and confusion of an already cluttered and confused court system persisted in an arguably stranger way given that gang rape was no longer even in the Act. The Mukhtar Mai case provides insight into just how the different Pakistani courts, from the Anti-Terrorism Courts to the Supreme Court, applied and responded to the ATA when it came to gang rape and the risk of injustice when an unwieldy legal system must respond to atrocities against the vulnerable.
In 2002, Mukhtar Mai was gang raped at the order of a rival Baloch tribe’s council as retribution when her twelve-year-old brother was accused of having sexual relations with a higher class girl from that tribe. After the gang rape, Mukhtar Mai filed a report with the police station and the assailants and council arbitrators were charged by and brought before the Anti-Terrorism Court in Punjab.
According to the Pakistani Supreme Court’s 2011 record in the criminal appeal of this case, in 2002, the Anti-Terrorism Court indicted 14 men under Sections 11 and 10(4) of the Zina Ordinance of 1979, which was read with Section 149 of the Pakistani Penal Code; Section 354-A of the Pakistani Penal Code read with Section 109; and under Sections 7(c) and 10 of the 2002 ATA. The provisions that were read together were crimes under the Hudood Ordinance coupled with either conspiracy or aiding and abetting under the Pakistani Penal Code, meaning that the crimes being considered included conspiracy to and aiding and abetting those Hudood crimes.
Section 7(c) of the ATA states that whoever commits an act of terrorism which causes “grievous bodily harm or injury…to any person, shall be punishable, on conviction, with imprisonment of either description for a term which shall not be less than seven years but may extend to imprisonment for life and shall also be liable to a fine.” Section 10 gives the police in anti-terrorism cases the right of search and seizure on probable cause. It is unclear why the defendants were charged under Section 10, which concerns police procedure.
Section 11 of the Zina Ordinance penalizes kidnapping a woman, either with the intent or with the knowledge that she will be likely to “be forced or seduced to illicit intercourse.” The ATC also charged the assailants under Section 10(4) of the Zina Ordinance’s gang rape provision. Under Section 10(4), “[w]hen zina-bil-jabr liable to ta’zir [punishment] is committed by two or more persons in furtherance of [a] common intention of all[,] each of such persons shall be punished with death.” These sections of the Zina Ordinance were read with Section 149 of the PPC, according to which members of an unlawful assembly involved in a conspiracy to commit an offense are guilty of that offense. Read together, the first charge the ATC considered was kidnapping a woman for forced illicit intercourse, committing zinā’ bi’l jabr in a group, and conspiracy thereof, with proof of conspiracy sufficing as proof of guilt of zinā’ bi’l jabr.
The assailants were also charged under Section 354-A of the Pakistani Penal Code, which criminalizes “assault or use of criminal force to woman and stripping her of her clothes,” exposing her to public view. This law was read with the PPC’s provision on abetting, which states that anyone who abets a crime will be liable to the same punishment. Thus, this charge was meant to encompass both direct participation in the crime as well as aiding and abetting.
The application of the varied rape laws in Mukhtar Mai’s ATC case is a legal hodgepodge, an unholy mix of religious and civil law, with the ATC reading provisions of the Zina Ordinance with the PPC while diverting the appellate channel away from the FSC. Other ATC gang rape cases contemporary with the Mukhtar Mai case charged defendants exclusively under Section 10 of the Zina Ordinance, or zinā’ bi’l jabr liable to ta’zīr. Put together, these different approaches reveal a lack of consistency and clarity concerning which laws were to be used when addressing gang rape.
The Zina Ordinance specifically contemplated gang rape under its conception of sharī’a and the ATA created no new cognizable claim on which to rest ATC jurisdiction. The benefit to ATC jurisdiction was that they were intended to be fast response courts to egregious crimes, which allowed the government to streamline gang rape cases. On the other hand, the ATCs’ express and then understood, mandate over gang rape intruded into the FSC’s legislatively established appellate jurisdiction. The ATA created competing paths without addressing how, if at all, the two avenues would share jurisdiction. Predictably, this unanswered question resulted in confusing and contested claims over jurisdiction.
In its 2002 decision in the Mukhtar Mai case, the Anti-Terrorism Court found six of the twelve defendants guilty of all charges save for Section 354-A of the PPC (assault and criminal clothes stripping). The ATC sentenced the defendants to thirty stripes for each offense, steep fines, along with both life imprisonment and the death penalty. In Pakistan, a lower court’s death penalty sentence requires appellate review. Prior to the ATA, the FSC would have reviewed the decision. However, since an ATC tried this case, the death sentence was subject to High Court appeal. Both parties appealed the ATC’s decision to the Lahore High Court: the state and complainant appealed the eight acquittals and the six defendants appealed their convictions.
In 2005, the Lahore High Court rejected the appeals of the acquittals, while completely exonerating all of the convicted except for one. The High Court found that five of the six convictions had not been proved beyond a reasonable doubt. The defendant who was not exonerated had admitted to intercourse with Mukhtar Mai, but claimed nikāh, or Islamic marriage, as a defense. He bore the burden of proof on the defense and failed to meet it.
After the Lahore High Court rendered its decision, a justice of the FSC stepped in suo moto and suspended the High Court’s decision. He did so on the grounds that the High Court had interfered with the FSC’s constitutional jurisdiction over questions of Hudood. At this point, Pakistani Supreme Court stepped in and took on the case to, in its own words, “avoid a ludicrous situation from arising and to prevent a conflict between two constitutional institutions of the State.” While the situation was indeed ludicrous, it was also the natural outcome of a statutory and legal regime, which, instead of making efforts to ensure that the existent laws are applied consistently by courts of well-defined competence, created new courts with overlapping jurisdictions over messily defined laws.
In 2005, the Pakistani Supreme Court set aside the Lahore High Court’s acquittal of the other four rapists and ordered the men held until retrial. In 2011, after the retrial, the Supreme Court dismissed all the appeals, acquitting five out of six defendants. Only the one who had admitted intercourse and pled nikāh was ultimately convicted of the gang rape of Mukhtar Mai. For the others, the Court found that the prosecution failed to convincingly prove its version of events.
In its decision, the Pakistani Supreme Court expressly raised whether the “Anti Terrorism Court [could] try offences other than the scheduled offences, which may otherwise fall exclusively in the domain of other Courts?” and whether “the Federal Shariat Court under Article 203 (DD) of the Constitution [could] interfere in the appellate order of the High Court?” Despite recognizing the existence of these questions, the majority never reached a firm conclusion on these issues. Instead, the Supreme Court cabined the jurisdictional question to the specific circumstances, noted that the relevant parties had not raised objections at the time, and concluded that the “issue of jurisdiction in these matters has lost efficacy”—as though the question of jurisdiction is not essential in the discussion of past judgments and as though the question of the ATCs’ jurisdiction over gang rape cases would never arise again. One is left to assume that this response meant that this structure, twisted and rheumatic as it is, is sufficient.
 Then-and-current-Prime Minister Nawaz Sharif signed the Anti-Terrorism Act into law in 1997 in response to sectarian violence. In its original version, the law did not include the provisions on gang rape and sexual violence. The Act created the Anti-Terrorism Courts to allow the Pakistani government to fast-track terrorism cases. However, in the 1998 case Mehram Ali v. Federation Pakistan, the Supreme Court held the ATA unconstitutional on the grounds that it bypassed the established judicial system. A 1998 Amendment was passed to bring the ATA into constitutional compliance. An amendment in the following year introduced gang rape, child molestation, and rape with robbery into the list of terroristic offenses.
 In Pakistan, the Hudood Ordinances ordered rape law from 1979-2006, rendering it a crime under Islamic law. In 2006, the passage of the Protection of Women Act returned rape to the Pakistani Penal code, making it a civil, rather than Islamic law-defined crime. Since then, the law and court system has been in the process of shifting the crime of rape fully to civil law and civil courts. That process is far from complete and its path remains unclear as I discussed in a previous commentary [link]. As it stands, both the FSC and the High Courts are presently hearing appeals from rape cases and the decisions of both courts, even when referencing the Pakistani Penal Code, use Hudood terms like “zinā’ bi’l jabr.” Likewise, the effect of these changes on ATC gang rape cases remains to be seen.
 See e.g., http://www.dailymail.co.uk/news/article-2664421/Pakistani-woman-20-gang-raped-killed-hanged-tree-say-police.html, http://www.bbc.com/news/world-asia-31635115, http://www.independent.co.uk/news/world/asia/pakistani-gang-rape-victim-amina-bibi-dies-after-setting-herself-on-fire-9194322.html, http://www.dawn.com/news/654690/children-sexually-abused-on-pakistans-streets, http://blogs.tribune.com.pk/story/23953/pakistans-hidden-shame-exposing-child-sexual-abuse-and-pakistans-see-no-evil-attitude/.
 With some exceptions, these tribal councils are not part of the formal Pakistani legal system.
 According to the prosecution, Mukhtar Mai’s brother was in fact sodomized by two men and the brother of the girl he was accused of illicit relations with. The girl’s brother is alleged to have locked the two together in a room and accuse Mukhtar Mai’s brother of illicit conduct in an effort to save himself and his friends from prosecution.
 The Pakistani Supreme Court’s decision in the Mukhtar Mai case states that the ATC, as opposed to the prosecutor who tried the case, brought charges against Mukhtar Mai’s assailants.
 The Supreme Court twice states that the ATA referenced Section 19(4) of the Zina Ordinance. However, there is no Section 19(4) of the Zina Ordinance. The quote from the ATA that the Supreme Court uses states that the ATA in fact used Section 10(4) of the Zina Ordinance.
 See The Offence of Zina (Enforcement of Hudood) Ordinance, No. 7 of 1979, §11, The Gazette of Pakistan Extraordinary, Feb. 10, 1979 (hereinafter Zina Ordinance).
 See id.. at §10(4).
 Pak. Penal Code § 354(A) (1860).
 See e.g., Wasaya v. State (2001) 3309 YLR (LHC) (Pak.); Hayat v. State (2001) 3036 YLR (LHC) (Pak.).
 Id. at 48.
 Id. at 8.
 Id. at 48-49.
 Id. at 55.