Emirates Detainees Advocacy Center

The SSA: an Authority Above Law

02:45
4 Jul 2021
العربية
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Prelude

In 2003, the late Emirati President Sheikh Zayed bin Sultan Al Nahyan issued Federal Law No. 2 of the State Security apparatus which defines its functions, objectives and athourity.This law was later amended by a federal decree in 2011.

However, contrary to the provisions of the constitution, which requires the government to publish the law in the UAE Official Gazette within two weeks from the date of its issuance, the authorities did not publish the law or its amended version in the gazette, which is a clear violation of the text of Article 111 of the constitution, which states that “published Laws should be published in the Official Gazette of the Union within two weeks at most from the date of their signature and issuance by the President of the Union, after the approval of the Supreme Council. It shall come into force one month after the date of its publication in the aforementioned gazette, unless another date is stipulated in the same law.”

Nor can the text of the law be found anywhere else on the Internet, although the UAE claimed, in its response to the May 2015 Report of the Special Rapporteur on the independence of judges and lawyers in the UAE, that the law is available online and published in the Official Gazette.

The authorities claimed that they had published the law in the gazette. Paragraph (30) of their response to the report read as follows: “This is contrary to reality, as Federal Law No. 2 of 2003 regarding SSA was issued on February 15, 2003, and published in the gazette. Periodic No. 374 of the 33rd year on February 16, 2003, and the previous law was amended by Federal Decree-Law No. 1 of 2011, which was also published in the Official Gazette No. 524 on June 28, 2011

In fact, the Emirati response is contrary to reality, as these laws are not present in the mentioned issues, and they cannot be found in the legislation portal of the UAE Ministry of Justice, which publishes all federal laws.

Emirates Detainees Advocacy Centre (EDAC) was able to obtain an unpublished copy of the 2003 law, but was unable to obtain the amendment decree of 2011.

A brief history of the law

The first state security law in the UAE was issued in 1974 by Sheikh Sultan bin Zayed Al Nahyan, and the apparatus was affiliated to the Ministry of Interior at that time, and was subject to the authority of the Minister of Interior, who appoints the head of the apparatus by nominating his name to the Council of Ministers.

But only two years later, SSA Law was amended, making the apparatus independent from the Ministry of Interior and reporting directly to the head of state, and making the authority to appoint the head of the apparatus to the head of state directly instead of the Ministry of Interior.

SSA was also restructured and expanded, by merging the intelligence divisions and local agencies that practice similar activities, placing them under the management of SSA, and establishing subordinate branches in all member emirates of the union.

These changes allowed SSA to expand its influence within the UAE to become one of the most powerful apparatuses, as the apparatus became responsible for protecting the President and Vice President of the UAE, in addition to entrusting him with the protection of dignitaries in the state such as ministers, members of diplomatic and consular missions and senior guests.

Although there are some reservations and fears about the vague language which contained in some provisions of the law which was issued in 1974, but the activities of the apparatus were mainly aimed at combating actions harmful to the state, such as combating espionage and assassinations.

In addition, many of its activities were restricted by legal restrictions, such as having written permission from the Public Prosecution, and the need to notify the Public Prosecution within 72 hours of the date of arrest.

However, the apparatus’ goals and powers have undergone a major transformation after the law was amended in 2003, whereby SSA was granted powers to interfere with almost everything, and its powers were expanded in an unprecedented way to arrest people and search places without any restrictions and in violation of international norms and covenants.

This report reviews the broad powers granted by the Federal Law to SSA, as the law grants the apparatus the power to arrest and search people and homes without any warrant, and in violation of international obligations and standards.

Under the 2003 law, SSA officials and members can pursue or monitor any person without judicial permission, and the apparatus's management has the power to interfere in public and government institutions.

Rather, its officials have the power to refuse or suspend basic rights and government services without any restrictions, and citizens or residents of the UAE cannot appeal a decision made for security reasons.

        An analysis of the provisions of SSA Law shows two main things:

1- The Vagueness of The Law:

The broad and vague phrases in the provisions of the 2003 law allow SSA officials to take whatever measures they want against political activists, parties, organizations, associations, and individuals.

For example, Article 14 of the law stipulates the competence of SSA as follows:

(Within the framework of the apparatus carrying out its functions stipulated in this law, it shall have, in particular, the right to investigate, follow-up, collect and evaluate information in the following areas:

1- Any political or organizational activity for a person, organization, party, association or those in their position that would prejudice the integrity and security of the state, or involve acts of sabotage, subversive propaganda, or assassination attempts.

2- Any activity harmful to the state's economy, whether at home or abroad.

3- Anything that would weaken the position of the state, provoke hostility against it, or shake confidence in it.

The drafting of this article is an explicit criminalization of parties, organizations and associations, whether they are human rights or charitable organizations. The principle is that the activity of such institutions is a peaceful, licensed activity that is not intended to engage in subversive acts against the state. In addition, the law considers political organizations, political parties, and trade unions illegal, and imposes many restrictions on the formation of associations.

In fact, the ambiguous language used by the law allows for the arrest of many, according to the whims of the officials of the apparatus. For example, the law allows people to be tracked and collect their information for “spreading subversive propaganda.”

The law did not clarify what is meant by “subversive propaganda”, nor did it clarify the criteria by which propaganda becomes subversive. But the wording of the article makes simply criticizing the government or working with human rights organizations an activity that harms the security and safety of the country, and subversive propaganda that authorizes SSA to monitor and spy on opponents.

In addition, the wording of the third item is considered unacceptably broad, and allows SSA to pursue anyone who criticizes the government under the pretext of "undermining the country’s confidence ".

SSA exploits the authority granted to it under Article 14 to spy on and prosecute dissidents and even ordinary citizens. One of the documented cases is that of human rights activist Ahmed Mansour, who was subjected to extensive physical and cyber censorship; His computer, email and Twitter account were hacked and his phone was monitored.

In 2014, his Twitter account was hacked, and in August 2016, he received an anonymous SMS urging him to click on an attachment that allegedly contained information about detainees who had been tortured by SSA. The Toronto-based “Citizen Lab” examined the SMS and determined that the attached document was a spyware intended to hack, gain access and control his iPhone.

The information obtained by SSA through spying on him was used as evidence of conviction against him, and charges were brought against him of spreading “false information” and “false news” for “inciting sedition, sectarianism and hatred” and “harming the state’s reputation and prestige.”

During his third trial session, the judge red out six charges against Mansour, all based on his work in the defense of human rights. He was subsequently found guilty by the court on five of those charges, all relating to acts purely in defense of human rights, including tweeting about injustice, participating in international human rights conferences via the Internet, correspondence -which was deleted- via email and conversations via WhatsApp with representatives of Human Rights groups, including Human Rights Watch and Gulf Center for Human Rights.

2- Expanding the Powers of SSA

The provisions of the 2003 law are among the worst examples of the huge influence of the executive authorities compared to the judicial and legislative authorities in the UAE.

The law allows members of SSA to search people, search homes and places, and arrest individuals without a legal warrant. Article 29 of the law allows the search and storming of premises based on the permission of the head of the apparatus or his deputy.

In fact, SSA arrested dozens of defendants in the case (UAE 94) and other cases, and searched homes without showing any warrants. All arrests and house searches documented by EDAC, took place without a judicial or legal warrant authorizing arrests.

In fact, Article 25 allows directors of departments within the apparatus to request the identity of any person, search and arrest him/her for 24 hours if they have reason to believe that he/she is participating in an activity listed in Article 14, provided that the president or vice-president is subsequently informed.

The Article 25 even allows for the arrest and search of individuals on the basis of belief or suspicion, even without any indication that they are involved in any activity.

For example, on December 23rd, 2013, SSA agents detained AbdulRahman Al-Jaidah, the son of a Qatari doctor, Mahmoud Al-Jaidah; The officers asked him to leave the courtroom while attending his father's trial. Then they handcuffed him, put a bag over his head so that he could not see around him, and drove him in a car to an undisclosed location where he was interrogated about his public campaigns for his father's release, and then he was deported out of the country.

Articles from 26 to 28 allow the director general of the apparatus, his deputy, or the head of the apparatus to detain individuals' freedom for a period of up to 90 days without presenting them to any judicial authority.

According to these articles, the Emirati authorities have detained dozens of defendants in the (UAE 94) case and other cases for long periods exceeding 90 days, without even bringing them before the Public Prosecution.

Most of the detainees in the UAE 94 case were held for periods from 5-7 months without being brought before the Public Prosecution, and in violation of even the text of Article 29, which required them to be brought before the Public Prosecution after 90 days.

Given the broad powers granted by law to SSA, the next part of the report will be allocated to monitor the powers granted by the 2003 law to the apparatuses.

Powers of SSA:

1- The right to monitor society and interfere in its behavior

Article 15 of the law gives SSA an unusual authority in similar laws, which is the right to monitor and evaluate social phenomena, indicate their source, and take the necessary measures to curb these phenomena

Article 15 of the law states the following: “The apparatus monitors and evaluates social phenomena, states their source and the extent of their impact on the state’s security and policy, and raises the matter in this regard to the head of state. Whomever it sees fit. the apparatus may take the necessary measures to limit these phenomena, and it has the right to seek assistance in all of that, whom it deems appropriate.”.

The law does not define what are social phenomena. But any definition of the concept of a social phenomenon will not, in any case, fall within the scope of the work of SSA. The reason is that social phenomena, even if they are negative such as poverty and theft, are not within the jurisdiction of SSA, but rather within the jurisdiction of the ministry that is appointed by law, But it is clear that what is meant by the term social phenomena is not the scientific term known in social sciences, but rather modern phenomena such as the influence of Twitter or Clubhouse, for example, which may affect public opinion.

We can also note that Article 15 gives SSA absolute powers to deal with these phenomena. There are no clear restrictions on the procedures SSA can use in confronting the so-called social phenomena.

These absolute powers made the apparatus establish a cyber unit that became known as "electronic flies", whose goal is to influence any political discussion that occurs on internet, and insult opponents of the UAE authorities.

Dozens of cases were documented by anonymous individuals threatening and insulting opponents publicly on social media.

2- SSA intervenes in everything:

According to Article 17, the decisions and instructions issued by the head of SSA are binding on all security agencies and concerned bodies in the state.

In addition, Article 19 allows the apparatus to request any information or data it deems necessary from all governmental and local authorities that are required by law to cooperate with SSA, regardless of the nature of this information, even if it is personal.

SSA also enjoys, under Article 20, the authority to set up offices in the federal ministries of the state, its public institutions, its semi-governmental companies and organizations, and the country's embassies and consulates.

As for Article 22, it gives SSA the right to provide advice and information to all governmental and local authorities to take the necessary security measures whenever necessary.

In fact, these two articles gave the apparatus gradual control over all aspects of life in the country, obtaining a commercial license, renewing identity documents, and even obtaining university scholarships or jobs requires obtaining a security permit from it.

Under the above-mentioned articles, the most basic human rights such as education are now at the mercy of the security clearance, This is in violation of the International Covenant on Civil and Political Rights

EDAC has documented a number of cases in which the families of detained activists were subjected to various forms of harassment, as many of them were subjected to arbitrary arrests, were prevented from traveling abroad, and were denied the security permits necessary to join jobs and universities.

For example, in January 2014, SSA agents arrested Aisha Ibrahim Al-Zaabi, the wife of the former judge and member of the Public Prosecution Office, Muhammad Saqr Al-Zaabi, and one of the defendants who were convicted and sentenced in absentia to 15 years in prison in the (UAE 94) case.

Aisha was detained at a border crossing point with Oman while she was traveling with her father and her infant. She was held in secret solitary confinement for five days, during which time she was denied access to a lawyer or her family.

The authorities then released her, apparently without a charge, but confiscated her money, phone and passport.

In 2012, security officials at Abu Dhabi International Airport prevented Aisha and her five children from boarding an outbound flight and told her that her name was on the travel-ban list.

The authorities did not provide her with an official copy of her travel-ban or the legal reason behind it.

Some family members of the detainees were fired from their jobs or excluded from university registrations. Others were also prevented from obtaining a certificate of good conduct and security clearances necessary to join jobs. Under this procedure, which was put into effect in May, all applicants for a job in the government are required to complete a security clearance form after passing the interview and other stages of the recruitment process, which includes the employer applying to SSA with a request for approval to appoint the individual to fill the position. The decision of the apparatus at that time is binding on employers or institutions, and they cannot appoint a candidate to fill the job without its consent. SSA used this consent as a tool of discrimination against detainees and their families’ members.

Aisha Hussein Al-Jabri (18 years old at the time) was prevented from registering for the educational aptitude test, which is considered a condition for admission to the university, simply because she is the daughter of Hussein Al-Jabri. Her brother Muhammad was also fired from his job for the same reason.

SSA also instructed to freeze the bank accounts of some family members of the detainees, especially the bank accounts opened in the names of the detainees' children.

According to the information obtained by the EDAC, the UAE Central Bank ordered the suspension of some bank accounts, including those belonging to the wives and children of some detainees, at the request of the Public Prosecutor, who issued this request at the behest of SSA. The authorities also took other steps, such as canceling trade and business licenses granted to the families of some detainees.

3- Absence of judicial oversight

UAE Citizens or residents cannot appeal decisions taken by SSA, such as detention or deportation, which violates the United Nations Basic Principles and Guidelines on Remedies and Procedures regarding the right of every person deprived of his/her liberty to bring a case before a court.

4- Home searches & detention of individuals without legal warrants

In principle, law enforcement agencies are not entitled to detain people or enter and search public places without judicial warrants, except in exceptional circumstances such as flagrante delicto or the presence of a real threat to security and life. However, SSA Law issued in 2003 gives the apparatus the right to search homes and people even without a judicial warrant. which is a clear violation of international fair trial principles.

Also, Article 28 gives SSA the right to arrest people and detain them for investigation for a period of up to 90 days without presenting them to the Public Prosecution. It is also in violation of Article 17(2)(b) of the Convention on Enforced Disappearance, Principle 2 of the Body of Principles, Article 12 of the Declaration of Enforced Disappearance, and Section M(1) (C-D) and (G) of the Fair Trial Principles in Africa.

These principles expressly prohibit the custom in some countries in which certain branches of SSA forces arrest and detain individuals; Although it is not entitled to the power of judicial police.

The authorities that arrest, keep or investigate individuals may not exceed the powers conferred upon them by law, and must be subject, in the exercise of their powers, to oversight by the judicial or other authority.

EDAC has documented dozens of cases carried out by SSA of detaining individuals and searching their homes without judicial warrants, while all the defendants in the (UAE 94) case were subjected to this type of violation.

5- Deportation of foreigners outside the country

Article 28 gives the head of SSA the right to deport any foreigner outside the country if his/her presence poses a threat to national security.

According to the same article, the decision of the head of the apparatus cannot be appealed, and there are no clear controls for the exercise of these powers, as he can deport any person according to his whim.

SSA expelled a number of foreign lawyers residing in the UAE, and who worked within the legal team of AbdulHameed Al-Kumaiti. In 2011, the authorities expelled two Egyptian lawyers residing in the UAE, Osama Labib and Mahmoud Badawi, reportedly on "national security grounds”.

On August 8, 2012, the Egyptian lawyer, Sameh Mokhtar, who worked with Al-Kumaiti, was arrested for the same reasons.

The authorities' harassment, intimidation, imprisonment and deportation of Human Rights Defenders (HRDs) has reduced the number of lawyers willing to defend activists and others accused of national security crimes.

6- Using weapons against protesters

It is natural for the law to grant law enforcement forces such as SSA the right to use weapons and force if necessary, but it is strange that the apparatus has the authority to disperse the demonstrators, In principle, it is a power that is usually granted to law enforcement agency (LEA) or the police.

According to the third paragraph of Article 32, members of SSA have the right to break up any illegal gathering by using weapons, if the head of the apparatus or his authorized representative give the order to shoot.

Extra-legal practices

Not only does the UAE’s SSA exercise the broad powers granted to it by law, but it also exercises other powers for without any legal basis, and some of them even violate other UAE laws.

This section highlights some of the practices carried out by the apparatus without any clear legal basis or in violation of even UAE laws.

1- Security Clearance

The security approval requirement that was put into effect in May 2009 is a major violation against dissidents and their families in the UAE, persecuting them with every detail of their lives.

The UAE authorities is adopting a repressive method to consolidate its security grip in order to strengthen its loyalists and punish anyone who tries to oppose it or criticize its policy. This is done by requiring security approval for each job and interest in the UAE, which is confirmed by a document issued by the “Federal Authority For Government Human Resources”.

The security approval requirement extends to obtaining jobs, promotion, assignment, secondment, transfer, and even study leave. SSA in the UAE limits the authority to issue security approvals through it.

Some family members of detainees were fired from their jobs or excluded from university opportunities. It also prevented others from obtaining a certificate of good conduct and security clearances necessary to join the job.

Under this condition, all applicants for a job in the government are required to fill out a security clearance form after passing the interview and other stages of the recruitment procedures, which include the employer applying to SSA with a request for approval to appoint the person to fill the job. The decision of SSA is then binding on employers or institutions, and they cannot appoint a candidate to fill the job without the approval of the apparatus.

SSA used this consent as a tool to discriminate against detainees and their families’ members.

The UAE’s SSA is proceeding with this procedure despite the absence of a legal basis for it and its violation of the provisions of the UAE judiciary, as the UAE Supreme Court stipulated in mid-2019 that the requirement of security approval is illegal and contrary to UAE law.

2- Interference in the judiciary.

SSA exploits its authority to grant security approval to obtain jobs and promotion to control the judiciary, which is considered a violation of the independence of it, which must be independent and have its own system of appointment, promotion, delegation, and secondment.

EDAC learned from reliable sources within the UAE judiciary that members of the judiciary do not obtain their job rights, promotions and transfers, and are not appointed to the State Security Court without a security approval.

The sources stated that some judges were subjected to interrogation sessions held by SSA officers, and this puts the judiciary under the authority of the security apparatus, and therefore it is impossible for the judiciary to investigate the crimes committed by SSA.

3- Secret Prisons

The UAE’s SSA supervises secret detention centers in order to conduct investigations with the detainees, and although all prisons are subject, according to the law, to the authority of the Ministry of the Interior and the supervision of the Public Prosecution, in reality the Public Prosecution cannot enter these prisons or inspect them. Rather, the court refuses to investigate any violations occur within these prisons.

Although a large number of defendants in the (UAE 94) case demanded an investigation into their enforced disappearance in unknown places, and the lawyer submitted requests to the court to investigate cases of torture in which the accused was forced to condemn himself in violation of Article 14 of the International Covenant on Civil and Political Rights, but the court had refused Such requests.

4- Exercise of the powers set forth in the law Anti-Terrorism

The law gives the Federal Court or the Attorney General the right to a wide range of powers, such as: travel ban, residency restriction, communication ban, deportation outside the country, freezing of financial and bank accounts, and depositing the accused in counseling centers.

But in reality, a large part of these powers are exercised by SSA without referring to the court or the attorney general, while in some of them it influences the attorney general in order to issue decisions.

Most of the cases where individuals were prohibited from traveling, they did not know the existence of the ban decision, and they did not obtain any decision from the court, and we mentioned in the first part of the report examples of them.

Also, counseling centers are subject to the supervision of SSA, although the law is not clearly defined the body that supervises these centers, and this body which recommends to the Public Prosecutor to keep the detainee inside these centers or to release him/her.

Also, many of the decisions issued by the Public Prosecutor confirm the impact of SSA, so why would the Public Prosecutor be interested in preventing a child under five years from traveling or freezing his/her account.

Summary

A review of the State Security Law issued in 2003 reveals clear violations of international agreements that guarantee human rights, whether agreements related to individual simple rights such as education or those related to grant fair trials.

But the worst thing about the law is not only its violation of international human rights standards, but also the powers it grants to a security apparatus which primary function is supposed to protect the state and not monitor its residents and interfere in their lives.

The law not only violates international agreements, but also violates logic. What is the relationship of an apparatus such as State Security to the renewal of citizens' documents, or what is its relationship with other institutions?

Federal Law No. 2 of 2003 can be summarized as a law to place the state security apparatus above the law.