Defining Terrorism; Designed & Purpose-Based vs. Consequence-Based Approaches: A Comprehensive Case study of Pakistan

Abstract

The interpretation of the term ‘terrorism’ has been a subject of intense debate and controversy within the superior courts of Pakistan. Even various Benches of the Supreme Court of Pakistan (SCP) have consistently demonstrated different approaches. Within the SCP, the definition of terrorism is shaped by two key approaches known as actus-reus based approach (cumulative effect based approach) and mense-rea based approach (also known as design and purpose based approach). In the backdrop of this controversy, a Larger Bench comprised of seven members of the SCP was constituted in the year 2019 with the aims and objects to put an end to that controversy. The landmark ruling of the SCP in Ghulam Hussain case laid down criteria for determining the terrorism is provided. This decision marks a significant milestone in clarifying the legal definition of terrorism, providing greater importance to design and purpose upon the consequences of the act. It has rejected both effect-based theory (actus-reus) for defining terrorism and nexus-based theory for trial of scheduled offences. Whether the action qualifies terrorism or not? The determining factor is design and purpose (mense-rea) as settled by this seven member Bench. This Article provides detailed examination of effect-based theory and mense-rea-based theory for defining the term terrorism. It also investigates the nexus-based theory as it was applied to the trial of scheduled offenses. It explores various methods and factors used to discover the design and purpose or mens-rea of criminals.