IX. International Standards

International human rights law does not explicitly prohibit all forms of administrative detention—that is, the deprivation of liberty by an administrative rather than a judicial decision. Legitimate administrative detention in non-emergency situations can include deprivation of liberty for remedial education, for reasons of mental health, and for deportation or extradition.[136]

Jordan’s Crime Prevention Law regulates administrative detention under the most controversial category that governments sometimes claim as a justification for detention—public order (that is, preventive detention). The European Convention on Human Rights clearly prohibits such detention without a declaration of a state of emergency. Although the International Covenant on Civil and Political Rights is less clear,[137] the UN Working Group on Arbitrary Detention has found that the prolonged preventive detention by the United States of persons without a criminal charge or judicial review to be arbitrary.[138]

Countries that use preventive detention have in fact often done so in the context of organized or mass violence, often under emergency laws, such as India in Kashmir, Malaysia, or Egypt and Syria. Other countries, such as Cuba, Russia, Belarus, Armenia, and Uzbekistan have used administrative detention against political dissidents. In Jordan this is not the case. Administrative detention for the purpose of preserving public order occurs outside the context of organized or large-scale violence, and is chiefly directed against victims of crimes or against socially undesirable persons. Authorities also use it against persons suspected of criminal activity in order to circumvent proper criminal procedure. There is no declaration of a state of emergency or attempt to derogate from the ICCPR.

To be lawful, administrative detention decisions must meet certain tests. Article 9 of the ICCPR, which became law in Jordan 21 years after its ratification, following its publication in the Official Gazette in June 2006, states,

No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law ... Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.[139]

The Jordanian constitution echoes international law in articles 7 and 8, which state, respectively, “Personal freedom shall be guaranteed,” and “No person may be detained or imprisoned except in accordance with the provisions of the law.”[140]

Administrative detention in Jordan is based on procedures “established by law”—the Crime Prevention Law of 1954—and, in theory, administrative detainees can challenge the lawfulness of their detention before the High Court of Justice. In practice, however, a detainee’s ability to challenge his detention in court is so heavily circumscribed as to be unavailable.

The law specifies the situations in which the governor can issue orders of detention (posing a “danger to the people,” “habitual” thievery, and being “on the brink of committing a crime”). It is difficult to see any of these justifications as being necessary—most should be covered by the criminal justice system, that is, through regular prosecutions, including pretrial detention where necessary. Even if special grounds for administrative detention are justified under certain conditions, each individual decision to force someone into administrative detention must also be proportional to the circumstances of the case, that is, being carried out as a last resort, and only for strictly as long as is necessary.[141] The office of the UN High Commissioner for Human Rights, in a manual for judges, prosecutors, and lawyers, cited “particular concerns” in cases of preventive detention “in view of the difficulty inherent in defining such terms [as public order] with sufficient clarity.”[142]

The most problematic, and the most frequently applied, provision justifying administrative detention in Jordan, is article 3.3. of the Crime Prevention Law, which allows a governor to impose a pledge or monetary guarantee, and order detention where no guarantee is provided, for persons whose “release without a guarantee would constitute a danger to the people.” There is no further jurisprudence to narrow the understanding of which types of danger are intended. This provision is so vague as to invite unreasonable and arbitrary application of the use of guarantees and detention.

Other procedural aspects of the law also invite arbitrary application. The governor’s authority to set financial and personal guarantees at will, and to reject persons who proffer those guarantees, unbinds the governor from any consideration of the legal requirement for proportionality, and renders his decisions liable to arbitrary exercise incompatible with international human rights standards.

When authorities hold detainees for indeterminate periods of time, this detention is arbitrary, even if the initial detention was in accord with applicable legal standards. A detainee who has completed his or her judicial sentence but remains detained is also detained arbitrarily.[143] When the Jordanian government detains persons whom it has not charged or convicted, or who have completed their sentences, it violates the right to liberty of these persons.

As a general matter, administrative detention should not cover acts that fall under established criminal law, which affords those who are accused due process protections that are absent in Jordan’s administrative detention law. Jordan’s Crime Prevention Law includes among its provisions for administrative detention criminal acts such as “theft, sheltering thieves, and dealing in stolen goods,” as well as the preparation of criminal acts (“being on the verge of carrying out a crime,” or “assisting in the commission”). At the same time, it contains detention, a criminal sanction, for non-criminal acts, such as failing to provide a guarantee or breaching movement restrictions. The law makes this abundantly clear by using the terms “punish” and “imprison” for those who breach those provisions.[144]

The title of the law—Crime Prevention Law—anticipates the presumed criminal nature of substantive acts subject to administrative detention. Indeed, one former high-ranking official, who served as governor in at least four provinces as well as in other positions in the Ministry of Interior, told Human Rights Watch that the intention of the law is “to deal with crime, to deter it, to instill fear.”[145]

Sa’d al-Wadi al-Manasir, governor of Amman, told Human Rights Watch that the Crime Prevention Law was necessary “because we need to be able to arrest and detain people for the police to do their investigations.”[146] Zarqa province’s deputy governor, Adil al-‘Azzam, explained the government’s rationale in using the Crime Prevention Law to circumvent regular criminal procedure:

Administrative detention is used for people who have prior criminal records for things like theft, drug offenses, fights, or carrying knives. We use the Crime Prevention Law to arrest people who are caught in a crime but were then let go after 24 hours and before a trial date has been set, or in cases where the criminal might be found not guilty. Sometimes we imprison persons before they put forward their judicial bail guarantee. So, we know he’s a danger but we cannot [otherwise] put him in jail. We administratively detain him for as long as we consider necessary.[147]

Ahmad ‘Uthman, the defense lawyer, agreed, explaining,

If a person is arrested by the governor, he should go to court within one week. Depending on what he is accused of, if the crime is buying stolen goods, for example, it falls under the jurisdiction of the court of conciliation. If it is theft, depending on whether it’s a misdemeanor or a felony, the conciliation or criminal court has jurisdiction, or, if there is criminal conspiracy to disrupt state security, it goes to the State Security Court.[148]

The title and substance of the law, and these explanations provided by officials and lawyers, make abundantly clear that Jordanian authorities intentionally apply administrative detention to criminal matters to avoid the legal requirement, under the country’s criminal procedure code, of subjecting the grounds for detention to the scrutiny of an independent and qualified justice system.