Administrative Detention

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Background

Criminal law traditionally looks to punish individuals who have already committed a crime. Administrative Detention on the other hand typically involves the prophylactic arrest and detention of a person without trial for security reasons. Typical reasons for administrative detention include prevention of terrorism, control of immigration and the protection of society at large from dangerous individuals.

Administrative detention is criticized because these individuals are not granted the Rights that are afforded individuals in the traditional criminal justice system. The practice remains controversial because administrative detention eliminates the judiciary from the criminal justice process. The review process is often shrouded in administrative secrecy and the individual may be detaineed almost indefinitely without counsel or review of their detention.

International Law

Many believe that administrative detention violates Article 9 of the International Covenant on Civil and Political Rights (ICCPR) which "makes clear that no-one should be subjected to arbitrary detention and that deprivation of liberty must be based on grounds and procedures established by law".

The ICCPR does permit a government to temporarily derogate from its obligation not to engage in arbitrary detention under narrow circumstances, such as a public emergency threatening the life of a nation,

The United Nations has created the Working Group on Arbitrary Detention on the issue. One of the issues the group has focused on is the determination whether a detention is arbitrary or not – which is not as clear-cut in the case of administrative detention as it is in the case of criminal arrest.

Country Specific Application

China

Administrative Detention is common in China and comes in many forms: administrative detention (xingzheng juliu) under the Security Administrative Punishments Regulations (Zhi’an Guanli Chufa Tiaoli “SAPR”), re-education through labour (laodongjiaoyang), detention for repatriation (shourong qiansong) and stop and detain for questioning(liuzhi panwen).

Singapore

Sri Lanka

United States

The question of whether the President of the United States has the power to detain individuals without judicial review came before the U.S. Supreme Court in Boumediene v. Bush. [1] This case involved the habeas petition of an "enemy combatant"held in Guantanamo Bay. In 2006, the United States Congress passed the Military Commissions Act of 2006 (MCA). The MCA eliminated federal courts' jurisdiction to hear habeas applications from detainees who had been designated as enemy combatants. The petitioner claimed the MCA was unConstitutional. In a 5-4 decision, the Supreme Court of the United States concluded that detainees had the right to collateral habeas review if they were held in administrative detention.

Notes

  1. Boumediene v. Bush, 128 S. Ct. 2229 (2008