A/HRC/16/51
(a) annual governmental review of and reporting on the exercise of powers under counterterrorism laws; (b) annual independent review of the overall operation of counter-terrorism
laws; and (c) periodic parliamentary review. To be effective, it is important that
independent review mechanisms be based on statutory terms of appointment, linked to the
work of relevant parliamentary committees and accompanied by adequate resourcing.34
Review mechanisms should enable public consultation and should be accompanied by
publicly available reports.
20.
Regular review and the use of sunset clauses are best practices helping to ensure that
special powers relating to the countering of terrorism are effective and continue to be
required, and to help avoid the “normalization” or de facto permanent existence of
extraordinary measures.35 Periodic parliamentary review and sunset clauses also enable the
Legislature to consider whether the exercise of powers under counter-terrorism laws has
been proportionate and thus whether, if they continue, further constraints on the exercise of
such powers should be introduced, and/or whether the overall operation of counterterrorism laws calls for their modification or discontinuance.
21.
The Special Rapporteur accordingly formulates the template provisions below as
areas of best practice in the fight against terrorism:
Practice 3. Model provisions on the principles of normalcy and specificity
1.
To the broadest possible extent, measures against terrorism shall be taken by
the civilian authorities entrusted with the functions related to the combating of crime, and in
the exercise of their ordinary powers.
2.
Unless a state of emergency has been officially declared because terrorism
genuinely threatens the life of the nation and requires the adoption of measures that cannot
be undertaken through restrictions already permitted under international human rights law,
terrorism does not trigger emergency powers.
3.
Where the law includes particular provisions that, for a compelling reason,
are considered necessary in combating terrorism and entrust certain authorities with specific
powers for that reason, the use of such powers for any purpose other than the combating of
terrorism, as properly defined pursuant to practice 7, is prohibited.
Practice 4. Model provisions on the review of the operation of counter-terrorism law
and practice
1.
Where specific counter-terrorism powers have been created pursuant to
practice 3 (3), they shall lapse 12 months after their entry into force, unless the Legislature
reviews and renews them before that date.
2.
The Executive shall appoint a person or body to act as independent reviewer
of the application and operation of the law relating to terrorism. The person so appointed
shall, at least every 12 months, carry out a review of the operation of the law relating to
terrorism and report the findings of such review to the Executive and the Legislature. The
report shall contain an opinion on:
34
35
-
Terrorism Act 2000, sect. 126, and Prevention of Terrorism Act 2005, sect. 14(3). See also
questionnaire responses submitted by Belgium, Finland, Georgia, Greece, Lithuania, Malaysia,
Mauritius, Norway, Poland, Portugal and the Republic of Moldova.
Clive Walker, “The United Kingdom’s anti-terrorism laws: lessons for Australia” in Law and Liberty
in the War on Terror, 2007, p. 189.
Kent Roach, “The dangers of a charter-proof and crime-based response to terrorism”, in Essays on
Canada’s Anti-Terrorism Bill, 2002, p. 137.
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