Geneva-based Office of the United Nations High Commissioner for Human Rights (OHCHR) in a special report that dealt with the Protection of the State from Terrorism Act (PSTA) has underscored the need to narrow and clarify the definition of terrorism and related offences; remove or significantly revise provisions capable of criminalising protected expression and civic activity.
While acknowledging that the PSTA contained some additional safeguards and improvements on previous drafts, the OHCHR said that concerns remain regarding broad and insufficiently precise terrorism offences; restrictions affecting protected expression and civic activity; administrative detention and inadequate judicial control; extensive arrest and search powers; executive discretion; safeguards against torture and ill-treatment; due process and fair-trial guarantees; and effective accountability and remedies.
The OHCHR stated that terrorism and related offences ‘must’ comply with the principle of legality and be defined clearly, narrowly and foreseeably.
Counter-terrorism legislation should contain effective safeguards for freedom of expression, peaceful assembly, association, religion or belief and participation in public affairs, and any restriction must be lawful, necessary and proportionate to a legitimate aim, according to the report.
The Office is concerned that administrative detention remains central to the proposed framework. Any deprivation of liberty must be subject to prompt and effective judicial control and periodic review. Every initial and extended detention order should, therefore, require independent judicial approval, with the court empowered to refuse detention and order release. The deadline for judicial production should run from the time of arrest and apply consistently, irrespective of the arresting authority, the report says.
The Office has called for strict safeguards against arbitrary arrests, intrusive searches and possible abuses of power under the proposed Protection of the State from Terrorism Act (PSTA), stressing that judicial warrants should be the norm and that any exceptions should be narrowly defined and subject to prompt court review.
In its observations on the Bill, the Office has also called for the exercise of law-enforcement powers by the Armed Forces and Coast Guard to be genuinely exceptional, time-limited and subject to clear civilian authority and effective accountability mechanisms.
It has also stressed the need for robust safeguards against torture, ill-treatment, enforced disappearance and coercive interrogation.
Raising concern that the broad discretionary powers are vested in executive authorities under the proposed legislation, including those relating to detention, directives, proscription orders, restrictions and the designation of prohibited places, the Office asked for such powers to be subject to strict tests of necessity and proportionality, written reasons, disclosure requirements, clear time limits and prompt independent review. The Office has emphasised the need for independent oversight, transparency and effective avenues for accountability and redress.
The Office recommends, in particular, that the Government:
1) Narrow and clarify the definition of terrorism and related offences; remove or significantly revise provisions capable of criminalising protected expression and civic activity;
2) Require prompt, independent and effective judicial oversight of every arrest and detention;
3) Strengthen safeguards against torture, ill-treatment, arbitrary detention and enforced disappearance;
4) Reinforce due process and fair-trial guarantees;
5) Make judicial warrants the rule for intrusive search, entry and seizure powers;
6) Ensure civilian police primacy;
7) Establish effective independent oversight, accountability and remedies;
8) Narrow immunity provisions; and
9) Conduct meaningful public consultation before further legislative action.
