Habeas corpus
Habeas corpus is a legal procedure invoking the jurisdiction of a court to review the unlawful detention or imprisonment of an individual, and request the individual's custodian to bring the prisoner to court, to determine whether their detention is lawful. The right to petition for a writ of habeas corpus has long been celebrated as a fundamental safeguard of individual liberty.
Habeas corpus is generally enforced via writ, and accordingly referred to as a writ of habeas corpus. The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The writ was a legal mechanism that allowed a court to exercise jurisdiction and guarantee the rights of all the Crown's subjects against arbitrary arrest and detention.
At common law the burden was usually on the official to prove that a detention was authorized.
Habeas corpus has certain limitations. In some countries, the writ has been temporarily or permanently suspended on the basis of a war or state of emergency, for example with the Habeas Corpus Suspension Act 1794 in Britain, and the Habeas Corpus Suspension Act in the United States.
Etymology
The phrase is from the Latin habeās, second person singular present subjunctive active of habēre "to have", "to hold"; and corpus, accusative singular of corpus "body". In reference to more than one person, the phrase is habeas corpora.History
The writ of habeas corpus was described in the eighteenth century by William Blackstone as a "great and efficacious writ in all manner of illegal confinement". To this day, it is still "universally known and celebrated as the 'Great Writ of Liberty.Origins in England
Habeas corpus originally stems from the Assize of Clarendon of 1166, a reissuance of rights during the reign of Henry II of England. The foundations for habeas corpus are "wrongly thought" to have originated in Magna Carta of 1215 but in fact predate it. This charter declared that:However, the preceding article of Magna Carta, clause 38, declares:
William Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying "he king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." The procedure for issuing a writ of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous law had been passed forty years earlier to overturn a ruling that the command of the king was a sufficient answer to a petition of habeas corpus. The cornerstone purpose of the writ of habeas corpus was to limit the king's Chancery's ability to undermine the surety of law by allowing courts of justice decisions to be overturned in favour and application of equity, a process managed by the Chancellor with the king's authority.
The 1679 codification of habeas corpus took place in the context of a sharp confrontation between King Charles II and Parliament, which was dominated by the then sharply oppositional nascent Whig Party. The Whig leaders had good reasons to fear the king moving against them through the courts and regarded habeas corpus as safeguarding their own persons. The short-lived parliament which made this enactment came to be known as the Habeas Corpus Parliament – being dissolved by the king immediately afterwards.
During the Seven Years' War and later conflicts, the writ was used on behalf of soldiers and sailors pressed into military and naval service. The Habeas Corpus Act 1816 introduced some changes and expanded the territoriality of the legislation. In his 1885 book on the UK's uncodified constitution, Introduction to the Study of the Law of the Constitution, English jurist Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty".
The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the habeas corpus procedure has in modern times always technically remained available to such internees. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention is in accordance with an Act of Parliament, the petition for habeas corpus is unsuccessful. Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights, but such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government.
United States
In the United States the jurisdiction of federal courts to issue writs of habeas corpus was first granted by the Judiciary Act of 1789, but only for federal prisoners. Federal habeas jurisdiction was not available for state prisoners until after the Civil War when it was authorized on a limited basis by the Habeas Corpus Act of 1867. However, the 1867 statute did not allow review for constitutional error. After the lynching of Leo Frank the Court began to signal that it might allow more expansive habeas review under the habeas statute. Then, in Moore v. Dempsey, the United States Supreme Court, in a decision written by Justice Oliver Wendell Holmes, held that a trial dominated by a mob violated the 14th amendment's due process clause. However, the extreme circumstances of Moore were considered an exception until 1953 when Brown v. Allen opened the door for federal review of state court judgments to protect the constitutional rights of criminal defendants.The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause, located in Article One, Section 9. This states that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it". Presidents Abraham Lincoln and Ulysses Grant suspended habeas corpus during the Civil War and Reconstruction for some places or types of cases. During World War II, President Franklin D. Roosevelt suspended habeas corpus. Following the September 11 attacks, President George W. Bush attempted to place Guantanamo Bay detainees outside of the jurisdiction of habeas corpus, but the Supreme Court of the United States overturned this action in Boumediene v. Bush.
International
Article 9 of the Universal Declaration of Human Rights states that "No one shall be subjected to arbitrary arrest, detention or exile."In the 1950s, American lawyer Luis Kutner began advocating an international writ of habeas corpus to protect individual human rights. In 1952, he filed a petition for a "United Nations Writ of Habeas Corpus" on behalf of William N. Oatis, an American journalist jailed the previous year by the Communist government of Czechoslovakia. Alleging that Czechoslovakia had violated Oatis' rights under the United Nations Charter and the Universal Declaration of Human Rights and that the United Nations General Assembly had "inherent power" to fashion remedies for human rights violations, the petition was filed with the United Nations Commission on Human Rights. The commission forwarded the petition to Czechoslovakia, but no other United Nations action was taken. Oatis was released in 1953. Kutner went on to publish numerous articles and books advocating the creation of an "International Court of Habeas Corpus".
By jurisdiction
Australia
The writ of habeas corpus as a procedural remedy is part of Australia's common law inheritance. In 2005, the Australian parliament passed the Australian Anti-Terrorism Act 2005. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus.Canada
Habeas corpus rights are part of the English legal tradition inherited by Canada. The rights exist in the common law and have been enshrined in section 10 of the Charter of Rights and Freedoms, which states that "veryone has the right on arrest or detention... to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful". The test for habeas corpus in Canada was established by the Supreme Court of Canada in Mission Institution v Khela, as follows:To be successful, an application for habeas corpus must satisfy the following criteria. First, the applicant must establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities to show that the deprivation of liberty was lawful.Suspension of the writ in Canadian history occurred at multiple times. During the October Crisis in 1970, the War Measures Act was invoked by the Governor General of Canada on the constitutional advice of Prime Minister Pierre Trudeau, who had received a request from the Quebec Cabinet. The Act was also used to justify German, Slavic, and Ukrainian Canadian internment during World War I, and the internment of German-Canadians, Italian-Canadians and Japanese-Canadians during World War II. The writ was suspended for several years following the Battle of Fort Erie during the Fenian Raids, though the suspension was only ever applied to suspects in the Thomas D'Arcy McGee assassination.
The writ is available where there is no other adequate remedy. However, a superior court always has the discretion to grant the writ even in the face of an alternative remedy. Under the Criminal Code the writ is largely unavailable if a statutory right of appeal exists, whether or not this right has been exercised.