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New York, 2001. London, 2005. Mumbai, 2008. Where next? Section 1 of the Terrorism Act 2000 in the UK states that terrorism is an act of a person, who threatens serious violence against a person, causes serious damage to property, endangers a person’s life, and creates a serious risk to the health and safety of the public. This is a very wide definition and as Richards J commented that the definition in the Terrorism Act 2000 is sweepingly broad and extraordinary vague  . Anti-terrorism legislation in the United Kingdom is, of course, nothing new. Confronted with terrorism and political violence in both Northern Ireland and on the British mainland for decades, the United Kingdom had a wide range of legislative counter measures in place even before the ‘9/11’ terrorism attacks in New York. The centrepiece of this legislative framework was the Terrorism Act 2000, which placed many of the emergency provisions of the 1970s and 1980s on a permanent footing  .
The UK government that was so warmly applauded for having introduced the Human Rights Act 1998 has now shown its truly illiberal face in the passing of the Anti-terrorism, Crime and Security Act 2001 (ATCSA hereinafter) in the wake of the ‘9/11’ events  . The breadth of the definition has led to criticism because it could potentially be applied to situations where the low threat of violence does not justify the use of specialised powers and offences by the Government or state  .
By virtue of the wording of both the Terrorism Act 2000 and of the ATCSA, the potential reach of the provisions in Part IV of the ATCSA concerning suspected international terrorism is considerable. If the state genuinely needs emergency powers in order to respond to a real emergency, so be it. But extraordinary powers should be available to the state only when it absolutely warrants necessity and even then only in carefully defined and focused circumstances. It is difficult to argue that these tests are satisfied here  . The provisions of articles contained in the ATCSA, are said to be extraordinary, and the most controversial of all is Part IV of the Act regarding the indefinite detention without trial of persons suspected to be international terrorist  . Section 23 of the Act gives the Home Secretary powers to certify the detention of a person as being ‘suspected international terrorist’ without charging them. This means, whoever the Home Secretary ‘reasonably believes’ is a risk to national security and whom he ‘reasonably suspects’ is a terrorist, would be detained without given a trial  .
Notwithstanding the undoubted importance of national security and the right to protect life as provided in Article 2 of the European Convention of Human Rights (ECHR hereinafter), however measures taken in its name clearly engage a number of Convention rights namely right to liberty (Article 5), right to fair trial (Article 6), and among others are affected by the measures contained in Britain’s counter-terrorism legislation  . Should it be open then, to the Government to detain suspected terrorist for an indefinite period of time without charging them with any offence?
Firstly, the argument of detention of terrorist on reasons of “national security” will be justified when the state is under emergency. A ‘state of emergency’ is defined as an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the state is composed  . In the Council of Service Unions v Minister for the Civil Service (1985)  (the ‘GCHQ’ case), the court held that the decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the government and not for the courts to decide on; the government alone has access to the necessary information, and in any event the judicial process is unsuitable for reaching decisions on national security  . The House of Lords also held in Secretary of State for the Home Department v Rehman (2001)  that determining what measures are required to be taken in the interests of national security is a ‘matter of judgement and policy’ for the Secretary of State  .
In another case of A v Secretary of State for the Home Department (2004)  , Lord Bingham reasoned that great weight should be given to the judgement of the Home Secretary, his colleagues and the Parliament on the question of public emergency. Lord Hope agreed with Lord Bingham in the same case, commenting that the questions on whether there is an emergency and whether it threatens the life of the nation are pre-eminently for the executive and the Parliament to decide on  . Lord Scott however had very great doubt whether the present ‘public emergency’ in the case is one that justifies the description of ‘threatening the life of the nation’ although he was willing, ultimately, to give the executive the benefit of the doubt  . In R (on the application of Hosenball) v Secretary of State (1977)  , a deportation case, Lord Denning said that, “There is a conflict between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law. It is for the Home Secretary. He is the person entrusted by Parliament with the task  “.
These arguments as adumbrated above clearly show that the Home Secretary has the prerogative when it comes to matters dealing with national security of public emergency. The Home Secretary has its own resources and access to information and therefore is the right body to decide on actions to be taken as it reasonably believes so. Thus, the critical approach to the public emergency question lies in its impact on the subsequent analysis as to whether detention without trial is strictly necessary. Although an individual who is detained under section 23 of the ATCSA will be a person accused of committing no crime, but however a person whom the Secretary of State has certified being a “reasonable suspect” is classified a terrorist. That individual may then be detained in prison indefinitely  .
In amplification to the above, Article 2 of the ECHR provides the positive duty to protect life and therefore the government should be given the powers to detain a suspected terrorist for an indefinite period of time without charging them. The case of Osman v UK (1998)  states that Article 2 may imply, inter alia, positive obligation for the State to take preventive operational measures to protect individuals whose lives are at risk from criminal acts of another individual. This means that the State has to ensure that the steps are taken by their designated protection forces. However it depends on the circumstances of a case and whether there is enough knowledge that there is a risk to an individual’s life for the state to positively act to protect the individual  .
On the contrary, it may be argued that it should not be open to the government to detain a suspected terrorist for an indefinite period of time without charging them on reasons as below. Firstly, section 23 of ATCSA which allows the detention of suspected terrorist for an indefinite time is clearly in breach and incompatible with Article 5 of the ECHR – right to liberty and security. Article 5 of the ECHR provides that everyone has the right to liberty and security of person and that no one shall be deprived of his liberty. Article 5 further guarantees the right to liberty and security, and principally seeks to prevent arbitrary interference by a public authority with an individual’s personal liberty  . Although Article 5(1)(f) provides an exception, in which it allows for the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country, but only for the view of deportation or extradition. However, detainees under section 23 of the ATCSA are persons against whom action is being taken against not with the view to deportation and therefore section 23 of the ATCSA is in breach of Article 5(1) of the ECHR and does not fall under the exception of Article 5(1)(f) or any other paragraph of Article 5(1)  .
Secondly, where a person is deprived of their liberty by the executive, that person has a right of access to a court in order to question the legality of that detention, including the evidence on which the decision was made  . According to section 25(1) of the ATCSA, a suspected international terrorist cannot appeal to a British court of law against his or her certification under section 21 of the ATCSA. Appeal is only available to the Special Immigration Appeals Commission which has the power to cancel the certificate if it believes that it should not have been issued in the first place. This limited access to judicial review is clearly in breach of Article 5(4) of the ECHR which states that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful  .
Thus, it is conceivable that a genuine threat to national security may require the curtailment of traditional checks and balances that would normally temper unjust convictions. This has led to the lowering of standard of proof on an offence which is committed on the basis of “reasonable suspicion” only, a standard lower than the balance of probability. The nature of part 4 of the ATCSA is not to find guilt in the accused but to confer on the state a wide margin to prevent a serious threat  . The principle of proportionality requires the government to demonstrate the measures taken to impair the right at issue, in this case, the right to liberty and security, to achieve the legislative objective  . The problem however, is that individuals detained are not charged or convicted of an offence, but are merely suspected individuals and this is not in accordance in respecting their fundamental human rights  .
In conclusion, the reasons set out above do answer the crucial justification question of whether it should be open to the government to detain a suspected terrorist for an indefinite period of time without charging them. On one side, the argument of “national security” and “the right to protect life” will be justified however on the other side, “breach of human rights convention” and “disproportionality” will negate the first two arguments.
It is seen that even in other jurisdictions, like the United States detention centre at Guantanamo being the heart of the USA’s unlawful and coercive detention regime, remains at the centre of legal challenges today. Since it first began receiving ‘war on terror’ detainees in January 2002, it has held some 800 men and boys in indefinite military detention without charge or trial  . Another example is in Malaysia, where the Internal Security Act (1960) (ISA hereinafter) allows for the arrest of any person without the need for trial in certain defined circumstances. The ISA empowers police to arrest an individual without a warrant and hold for up to 60 days who acts “in a manner prejudicial to the national security or economic life of Malaysia”. During the initial 60 day detention period in special detention centres, the ISA allows for the denial of legal representation and does not require that the case be brought before a court. The home minister may authorize further detention for up to two years, with an unlimited number of two-year periods to follow  . This proves that Malaysia allows for preventive detention during peacetime without safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights.
One of America’s founding fathers, Benjamin Franklin, once said that “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”. Ironically, the United Kingdom, the United States, Malaysia, and other countries today are on the verge of giving up essential liberty without being able to obtain even temporary safety. These powers need to strike a proper balance between the vital needs of the state and the liberty of its citizens, between national security necessities and international human rights obligations  . Thus to take a stand, in an age of heightened threats to national security, it should be readily open to the Government to detain suspected terrorists for an indefinite period of time without charging them without any offence, to curtail the terrorists’ acts.
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