Habeas Corpus
It protects the individual from harming him or herself, or from being harmed by the judicial system. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.
Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person; if not, the person shall be released from custody.
The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.
The right to petition for a writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject. 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." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency.
In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus." The reach of habeas corpus is currently being tested in the United States. Oral arguments on a consolidated Guantanamo Bay detention camp detainee habeas corpus petition, Al Odah v.
United States were heard by the Supreme Court of the United States on December 5, 2007. On October 7, 2008, the first Guantanamo prisoners were ordered released by a court considering a habeas corpus petition.
The writ of habeas corpus is one of what are called the "extraordinary," "common law," or "prerogative writs," which were historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom.
The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. When the original 13 American Colonies declared independence and became a constitutional republic in which the people are the sovereign, any person, in the name of the people, acquired authority to initiate such writs.
The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority.
Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.
Derivation and form
The right of habeas corpus is referred to in full in legal texts as habeas corpus ad subjiciendum or more rarely ad subjiciendum et recipiendum.
The full name of the writ is often used to distinguish it from similar ancient writs:
Habeas corpus ad deliberandum et recipiendum, a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of “deliberation and receipt” of a decision;
Habeas corpus ad faciendum et recipiendum, also called habeas corpus cum causa, a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of “receiving” the decision of the superior court and of “doing” what it ordered;
Habeas corpus ad prosequendum, a writ ordering return with a prisoner for the purpose of “prosecuting” him before the court;
Habeas corpus ad respondendum, a writ ordering return in order to allowing the prisoner to “answer” to new proceedings before the court;
Habeas corpus ad satisfaciendum, a writ ordering return with the body of a prisoner for “satisfaction” or execution of a judgment of the issuing court; and
Habeas corpus ad testificandum, a writ ordering return with the body of a prisoner for the purposes of “testifying”.
That the basic form of the writs of habeas corpus, now written in English, has changed little over the centuries can be seen from the following examples:
History of habeas corpus in England
Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge.
Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted (or misquoted, see Somersett's Case):
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 procedure of habeas corpus 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 was in accordance with an Act of Parliament, the petition for habeas corpus would be 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. However, such a declaration of incompatibility has no immediate legal effect until it is acted upon by the government.
The wording of the writ of habeas corpus implies that the prisoner is brought to the court in order for the legality of the imprisonment to be examined.
However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. It is also possible for individuals held by the state to petition for judicial review, and individuals held by non-state entities to apply for an injunction.
Scotland's approach
The Parliament of Scotland passed law to have similar effect to Habeas Corpus in 1701, the Act for preventing wrongful imprisonment and against undue delays in trials, now known as the "Criminal Procedure Act 1701" (being the short title given by Statute Law Revision (Scotland) Act 1964).
It states:
The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. In the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ, though the number of habeas petitions filed has continued to rise.
The Antiterrorism and Effective Death Penalty Act of 1996 further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on direct appeal from the conviction and sentence, or in a state court habeas corpus action and the associated second round of state appeal (both of which, in the usual case, occur before a federal habeas petition is filed).
Suspension during the Civil War and Reconstruction
On April 27, 1861, habeas corpus was suspended by President Abraham Lincoln in Maryland and parts of midwestern states.
Whereas, It has become necessary to call into service, not only volunteers, but also portions of the militia of the States by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure, and from giving aid and comfort in various ways to the insurrection.
Now, therefore, be it ordered, that during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission.
Second: That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prisons, or other place of confinement, by any military authority, or by the sentence of any court-martial or military commission.
In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done at the City of Washington, this Twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty-seventh.
ABRAHAM LINCOLN.
Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act.
Suspension during World War II and its aftermath
In 1942, the Supreme Court ruled in Ex parte Quirin that unlawful combatant saboteurs could be denied habeas corpus and tried by military commission, making a distinction between lawful and unlawful combatants. The period of martial law in Hawaii ended in October 1944, and the Organic Act's authorization of martial law was ruled not to include the power to close civilian courts in Duncan v.
The AEDPA was to "deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes."
The AEDPA contained one of the few limitations on habeas corpus. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2-1 decision of the Case Boumediene v.
Supreme Court reversed its April 2007 decision and agreed to hear the appeals of Guantanamo detainees who are seeking habeas corpus review of their detentions.
Under the MCA, the law restricts habeas appeals for only those aliens detained as "enemy combatants," or awaiting such determination. In a two-to-one ruling by the Fourth Circuit Court of Appeals, the Court held the President of the United States lacks legal authority to detain al-Marri without charge; all three judges ruled that al-Marri is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S.
Court.
On June 12, 2008, the United States Supreme Court ruled 5-4 in Boumediene v. Both internments were eventually recognized by acts of parliament as historical wrongs.
However it also provides that habeas corpus is not binding on the Defence Forces during a state of war or armed rebellion.
The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the principle was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937. If a detained person is not in a position to file a petition, it can be moved on his behalf by any other person.
The mother did not present the child to the court and was imprisoned for contempt of court. She was released when the child's grandfather came forward with him in late January 2007.
Poland
An act similar to Habeas corpus was adopted in Poland as early as in 1430. Neminem captivabimus, short for neminem captivabimus nisi iure victum, (Latin, "We shall not arrest anyone without a court verdict") was one of the basic rights in Poland and Polish-Lithuanian Commonwealth, stating that the king can neither punish nor imprison any member of the szlachta without a viable court verdict.
According to the Portuguese Penal Process Code, the application for it shall be made to the judge conducting the preliminary investigations or to the Portuguese Supreme Court of Justice.
The reasons that may justify an habeas corpus are: exceeded the period to deliver the detainee to judicial power; exceeded the detention period stated by law or judicial decision; detention outside the legally allowed places; detention ordered by an incompetent authority; and detention motivated for fact for which the law does not allow detention.
Spain
The Spanish Constitution states that A habeas corpus procedure shall be provided for by law in order to ensure the immediate handing over to the judicial authorities of any person illegally arrested. "The Most Wholesome Law--The Habeas Corpus Act of 1679." The American Historical Review.