Administrative detention is arrest and detention of individuals by the state without trial. A number of jurisdictions claim that it is done for security reasons. Many countries claim to use administrative detention as a means to combat terrorism or rebellion, to control illegal immigration, or to otherwise protect the ruling regime.
In a number of jurisdictions, unlike criminal incarceration (imprisonment) imposed upon conviction following a trial, administrative detention is a forward-looking mechanism. While criminal proceedings have a retrospective focus – they seek to determine whether a defendant committed an offense in the past – the reasoning behind administrative detention often is based upon contentions that the suspect is likely to pose a threat in the future. It is meant to be preventive in nature rather than punitive (see preventive detention). The practice has been criticized by human rights organizations as a breach of civil and political rights.
In other jurisdictions it is retrospective, i.e., it is a form of punishment for a certain category of offenses.
Counter-terrorism Administrative detentions are defined in the law of many of the world's states. In democratic countries using administrative detention as a counter-terrorism measure, the rationale given by its proponents is that legal existing systems are ill-suited to handle the specific challenges presented by terrorism. Proponents of administrative detention maintain that criminal law's reliance on defendant rights and strict rules of evidence cannot be used effectively to remove the threat of dangerous terrorists. Some of the reasons often used to support this claim are that the information used to identify terrorists and their plots may include extremely sensitive intelligence sources and methods, the disclosure of which during trial would undermine future counter-terrorism operations. It is also claimed that the conditions under which some suspected terrorists are captured, especially in combat zones, make it impossible to prove criminal cases using normal evidentiary rules. Proponents also maintain that criminal prosecution is designed primarily to punish past behavior, thus it is deliberately skewed in favor of defendant, in order to assure that few, if any, innocents are punished. Counter-terrorism, on the other hand, aims to prevent future action, and thus requires a system that is weighed more heavily toward reducing the possibility of future harm, by ensuring that no guilty party will go free.
The Laws of War are also seen by the proponents as inadequate. These laws allow the capture of enemy fighters, and also allow holding them for the duration of hostilities without trial. However, these laws grew out of the need to regulate combat between professional armies accountable to a sovereign state, who were engaged in combat of possibly lengthy, but finite duration. Attempting to apply these laws to terrorists who are intermingled with a civilian population and accountable to no-one opens the possibility of indefinite detention without trial, combined with a substantial likelihood of error.
Opponents of administrative detention challenge the above assumptions. While acknowledging the need to protect the sources and methods used to obtain sensitive intelligence, they maintain that existing laws, such as the Foreign Intelligence Surveillance Act (FISA) and the Classified Information Procedures Act (CIPA), successfully balance the need to protect sensitive information, including the sources and means of intelligence gathering, with defendants' fair trial rights. They point to the historical record of prosecutors who were able to obtain convictions against terrorists on the basis of existing laws. Opponents maintain that in essence, administrative detention is a form of collective punishment. Since it does not require proof of individual guilt, it attributes to all members of a group the actions of a few.
Immigration control
Many countries utilize administrative detention to hold illegal immigrants – those arriving at a country's borders without proper authorization – as an interim step to either deportation or the obtainment of proper legal status. Immigration detention is controversial because it presents a clash between traditional notions of individual liberty and the territorial sovereignty of states. Comparative studies on administrative detention practices of different countries found that those experiencing large-scale influxes of illegal migrants by sea (such as the United States and Australia) typically have the most draconian systems. Proponents of administrative detention for illegal immigrants claim that detention is required since these immigrants have not committed any crime for which they could be prosecuted under existing laws, and that allowing them to await their potential deportation while not in custody runs a risk of their absconding. Opponents maintain that alternatives to detention exist, and that such alternatives are preferable because they do not violate personal liberty, as well as being less of a financial burden to the state. Among the alternatives suggested are supervised release to a non-governmental organization (NGO), the release into the custody of a private citizen who will guarantee the immigrant's participation in immigration hearings, and "open detention" centers with mandatory reporting requirements.Research Paper on Alternatives to Detention, European Council on Refugees and Exiles (ECRE), London, September 1997
Protection of the ruling regime Administrative detention is used by the ruling regime to suppress dissent and sanction opponents of the government. In Asia in particular, administrative detention was first introduced by the British and French colonial authorities prior to and during World War II. Created as a mechanism to control political dissent, it has ironically survived and made its way into the law books of the now-independent former colonies, who legitimized its use against their own political opponents in their constitutions. In many cases, they were and are codified as "emergency measures" or "internal security" acts. Bangladesh, India, Malaysia, Myanmar, Pakistan, Singapore and Sri Lanka are notable examples of such former colonies who hold political prisoners under administrative detention which has its legal roots in British colonial practices. Vietnam is an example where administrative detention was widely used by the French colonial authorities in the 1930s, to arrest those suspected of Communist activities. Post-independence, the now-ruling Communist authorities have employed very similar means to detain those suspected of "counter-revolutionary" offenses. Some of these political prisoners, such as Aung San Suu Kyi in Myanmar, have become known worldwide due to the detention, and their cause is championed by human rights organizations.
Instances
Armenia Armenia has been criticized by Human Rights Watch for not fully reforming the legal framework it inherited from the former Soviet Union, and failing to bring its administrative detention system into accord with prevailing international norms. During the 2003 Presidential elections, Armenian police arbitrarily applied the Code of Administrative Offenses, under which administrative detention is authorized, to lock up dozens of opposition activists and supporters for periods of up to fifteen days.
Australia
Like many other countries experiencing large scale illegal immigration, such as Canada and the United States, Australia has a system of mandatory administrative detention for illegal immigrants, or asylum seekers who arrive at its shores without proper visas.The Administrative Detention of Non-Nationals Pursuant to Immigration Control: International and Constitutional Law Perspectives, Daniel Wilsher, International and Comparative Law Quarterly, Vol. 53, No. 4, pp. 897–934, 2004 The legal basis for this system is found in Australia's Migration Act 1958 (Cth), which authorized the indefinite detention of an unlawful non-citizen who can not be deported immediately.Migration and Refugee Law in Australia, Mirko Bagaric, Kim Boyd, John Vrachnas, Penny Dimopoulos, Sue Tongue, p. 471, Cambridge University Press, 2007 Human Rights Watch criticized this Australian policy, claiming it seriously contravenes Australia's obligations to non-citizens, refugees and asylum seekers under international human rights and refugee law. Additionally, opposition to the system on humanitarian grounds came from a range of religious, community and political groups including the National Council of Churches in Australia, Amnesty International, the Australian Greens and Rural Australians for Refugees.
Brazil Administrative detentions in Brazil are admitted only for members of the military. Any member of the Brazilian Armed Forces may be imprisoned if found to be repeatedly in violation of the Military Disciplinary Regulations (Regulamento Disciplinar) by his or her superiors. Each military branch has issued a list of "transgressions" in their Disciplinary Regulations. The harshest punishment of this kind, in the Brazilian Army, is a 30-day imprisonment penalty.
Notwithstanding, members of the Brazilian Armed Forces under administrative detention may be granted a habeas corpus by the justice system to deliver them from imprisonment. They retain their full rights as citizens.
China The use of administrative detention in China has been commonplace since before 1949. At that time, it was used primarily against minor offenders as well as against opium addicts, prostitutes, vagrants and those considered to be insane. Since the 1978 legal reforms in China, the public security departments (gong'an jiguan), primarily the police, hold administrative detention powers which are used alongside the state's criminal justice system. Administrative detention is used against subjects that are viewed by the ruling regime as "socially undesirable", in order to maintain public order, social stability and political stability of the ruling regime.Legal Reform and Administrative Detention Powers in China, pp. 3–8, Sarah Biddulph, Cambridge Studies in Law and Society, Cambridge University Press, 2007 There is a well-established history of forced labour, arbitrary arrest and detention of minority groups, including: Falun Gong members, Tibetans, Muslim minorities, political prisoners and other groups. In the case of the Falun Gong in particular, there have been claims of extraordinary abuses of human rights in concentration camps, including organ harvesting and systematic torture. This target group includes prostitutes and their clients, drug addicts, political dissenters and petty criminals, who perform legal misdemeanors that are not serious enough for criminal prosecution. Custody and repatriation () was also used until 2003 for people, especially peasants, who did not have required papers.
There are three main forms of these administrative detentions: "detention for education" ("Shourong jiaoyu"), coercive drug rehabilitation ("Qiangzhi jiedu"), and "reeducation through labor" ("Laodong jiaoyang"). In addition, administrative detention is used for several internal security reasons, such as detention under the Security Administrative Punishments Law ("Xingzheng juliu"); Administrative detention for questioning of suspects ("Luizhi panwen"); and detention of juvenile offenders in work-study schools ("Gongdu Xuexiao").