Although most liberal democratic societies employ some type of preventive detention, it remains the subject of contentious policy debates. Chapter 2 starts by defining preventive detention to differentiate it from other types of detention that are sometimes treated as synonymous. It then considers the debates surrounding whether liberal democracies should ever be allowed to use preventive detention and, if so, against whom. Chapter 2 also describes the most pertinent issues that arise once preventive detention is permitted. It covers jurisdictional questions such as whom the government is entitled to detain; who should be held responsible for ordering detention and under what type of law. It also examines the debates about the extent of due process rights owed detainees, covering the rights to judicial review, information and a lawyer as well as the evidentiary burden on the state to justify detention. It concludes with an examination of the issue of what constitutes indefinite detention and whether it is ever permissible.
These policy debates underpin the analysis of preventive detention in each of the jurisdictions this book considers. How each jurisdiction responds to these policy issues determines the extent to which preventive detention undermines longstanding democratic principles and human rights guarantees. It also determines the extent of inequality in rights between “normal” members of society and the deviant others who are subjected to an inferior legal system. Chapter 2 considers each of the issues in general terms. The purpose here is not to offer a response to the issues under debate but to provide the background necessary for understanding the issues as they arise in each jurisdiction. The later chapters provide context to the debates, which better illustrates the advantages and disadvantages in practice of the potential responses to these issues.
Defining preventive detention
Before diving into the policy discussion, it is important to first define preventive detention so it is clear what type of detention this book is examining. For purposes of this book, preventive detention is the confinement of a person in a secure facility without a criminal charge to prevent a future criminal or war time harm. Under this definition, preventive detention has a single purpose – to prevent harm. Despite popular conceptions, it is not limited to extra-judicial detention.