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Habeas corpus

Habeas corpus

Overview
is a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...

, or legal action, through which a prisoner can be released from unlawful detention
Imprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....

. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

 legal system, but it is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom against arbitrary state action. It is a writ requiring a person to be brought before a judge.

A writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...

 of habeas corpus, also known as the Great Writ, is a summons with the force of a court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...

; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the person.
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Encyclopedia
is a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...

, or legal action, through which a prisoner can be released from unlawful detention
Imprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....

. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

 legal system, but it is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom against arbitrary state action. It is a writ requiring a person to be brought before a judge.

A writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...

 of habeas corpus, also known as the Great Writ, is a summons with the force of a court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...

; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the person. If the custodian does not have authority to detain the prisoner, then he must be released from custody. The prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado
Solitary confinement
Solitary confinement is a special form of imprisonment in which a prisoner is isolated from any human contact, though often with the exception of members of prison staff. It is sometimes employed as a form of punishment beyond incarceration for a prisoner, and has been cited as an additional...

. Most civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called "habeas corpus". For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad ('protection of freedom').

Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore, in many countries, the process may be suspended due to a national emergency.

The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject. The jurist Albert Venn Dicey wrote that the British 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 writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writ
Prerogative writ
Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the monarch's subjects through the courts.The prerogative writs are:*certiorari...

s", 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 most common of the other such prerogative writs are quo warranto
Quo warranto
Quo warranto is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold.-History:...

, prohibito, mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...

, procedendo
Procedendo
In common law jurisprudence, procedendo is one of the prerogative writs. It is a writ that sends a case from an appellate court to a lower court with an order to proceed to judgment....

, and certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...

. The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent has the burden to prove his authority to do or not do something. 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


Writ of Habeas corpus (icon) is a Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...

 phrase, which can be literally translated as “(We command) that you have the body”. or "you should arrest" the conventional incipit
Incipit
Incipit is a Latin word meaning "it begins". The incipit of a text, such as a poem, song, or book, is the first few words of its opening line. In music, it can also refer to the opening notes of a composition. Before the development of titles, texts were often referred to by their incipits...

 of medieval arrest warrant
Arrest warrant
An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....

s in England. The writ is referred to in full in legal texts as habeas corpus ad subjiciendum or more rarely ad subjiciendum et recipiendum. It is sometimes described as the “great writ”. Its name derives from the operative words of the writ in Medieval Latin:

The word habeas in the writ is in the subjunctive (specifically the volitive subjunctive): "We command that you have ...". 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.

Examples



Similarly named writs


The full name of the writ is often used to distinguish it from similar ancient writs, also called habeas corpus. These include
  • 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.("extradition")
  • 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 to allow the prisoner to “answer” to new proceedings before the court.
  • Habeas corpus ad testificandum: a writ ordering return with the body of a prisoner for the purposes of “testifying".

Origins in England


In the 17th century the foundations for habeas corpus were "wrongly thought" to have originated in the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...

. This charter declared that
Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...

 cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I
Edward I of England
Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...

. However, other writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...

s were issued with the same effect as early as the reign of Henry II
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...

 in the twelfth century. Blackstone explained the basis of the writ, saying "The 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
Habeas Corpus Act 1679
The Habeas Corpus Act 1679 is an Act of the Parliament of England passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained cannot be ordered to be...

, following judicial rulings which had restricted the effectiveness of the writ. A previous law (the Habeas Corpus Act 1640
Habeas Corpus Act 1640
The Habeas Corpus Act 1640 is an Act of the Parliament of England with the long title "An Act for the Regulating the Privie Councell and for taking away the Court commonly called the Star Chamber." The Act was passed by the Long Parliament shortly after the impeachment and execution of Thomas...

) 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.

Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the royal courts of law. 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 eighteenth century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case
Somersett's Case
R v Knowles, ex parte Somersett 20 State Tr 1 is a famous judgment of the English Court of King's Bench in 1772 which held that slavery was unsupported by law in England and Wales...

(1771), where the black slave Somersett was ordered to be freed. In that case these famous words are said to have been uttered "The air of England has long been too pure for a slave, and every man is free who breathes it".

The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the eighteenth and nineteenth centuries. Although internment without trial has been authorised by statute since that time, for example during the two World War
World war
A world war is a war affecting the majority of the world's most powerful and populous nations. World wars span multiple countries on multiple continents, with battles fought in multiple theaters....

s and the Troubles
The Troubles
The Troubles was a period of ethno-political conflict in Northern Ireland which spilled over at various times into England, the Republic of Ireland, and mainland Europe. The duration of the Troubles is conventionally dated from the late 1960s and considered by many to have ended with the Belfast...

 in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...

, 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
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

, the petition for habeas corpus is unsuccessful. Since the passage of the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...

, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

, but such a declaration of incompatibility has no legal effect unless and 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 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. If the detention is held to be unlawful, the prisoner can usually then be released or bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...

ed by order of the court without having to be produced before it. It is also possible for individuals held by the state to petition for judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

, and individuals held by non-state entities to apply for an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...

.

Australia


The writ of habeas corpus as a procedural remedy is part of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...

's English law inheritance. In 2005, the Australian parliament passed the Australian Anti-Terrorism Act 2005
Australian Anti-Terrorism Act 2005
The Anti-Terrorism Act 2005 is legislation intended to hamper the activities of any potential terrorists in Australia. It was passed by the Commonwealth Parliament on 6 December 2005.- Chronology :...

. 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 British legal tradition inherited by Canada. The rights exist in the common law but have been enshrined in the Constitution Act 1982, under Section Ten
Section Ten of the Canadian Charter of Rights and Freedoms
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...

 of the Charter of Rights and Freedoms. This states that "Everyone has the right on arrest or detention... (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful."

Suspension of the writ in Canadian history occurred famously during the October Crisis
October Crisis
The October Crisis was a series of events triggered by two kidnappings of government officials by members of the Front de libération du Québec during October 1970 in the province of Quebec, mainly in the Montreal metropolitan area.The circumstances ultimately culminated in the only peacetime use...

, during which the War Measures Act
War Measures Act
The War Measures Act was a Canadian statute that allowed the government to assume sweeping emergency powers in the event of "war, invasion or insurrection, real or apprehended"...

 was invoked by the Governor General of Canada
Governor General of Canada
The Governor General of Canada is the federal viceregal representative of the Canadian monarch, Queen Elizabeth II...

 on the constitutional advice
Advice (constitutional)
Advice, in constitutional law, is formal, usually binding, instruction given by one constitutional officer of state to another. Especially in parliamentary systems of government, Heads of state often act on the basis of advice issued by prime ministers or other government ministers...

 of Prime Minister Pierre Trudeau
Pierre Trudeau
Joseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...

, who had received a request from the Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....

 Cabinet. The Act was also used to justify German, Slavic, and Ukrainian Canadian internment
Ukrainian Canadian internment
The Ukrainian Canadian internment was part of the confinement of "enemy aliens" in Canada during and for two years after the end of the First World War, lasting from 1914 to 1920, under the terms of the War Measures Act that would be used again, in the Second World War, against Japanese Canadians;...

 during the First World War, and the internment of German-Canadians, Italian Canadians and of Japanese Canadian
Japanese Canadian internment
Japanese Canadian internment refers to confinement of Japanese Canadians in British Columbia during World War II. The internment began in December 1941, following the attack by carrier-borne forces of Imperial Japan on American naval and army facilities at Pearl Harbor...

s during the Second World War.

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 (see May v. Ferndale Institution). Under the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...

 the writ is largely unavailable if a statutory right of appeal exists, whether or not this right has been exercised.

Germany


Germany has constitutional guarantees against an improper detention and have been implemented in statutory law in a manner that can be considered as equivalent to writs of habeas corpus.

Article 104, paragraph 1 of the German Constitution provides that deprivations of liberty may be imposed only on the basis of a specific enabling statute that also must include procedural rules. Article 104, paragraph 2 requires that any arrested individual be brought before a judge by the end of the day following the day of the arrest. For those detained as criminal suspects, article 104, paragraph 3 specifically requires that the judge must grant a hearing to the suspect in order to rule on the detention.

Restrictions on the power of the authorities to arrest and detain individuals also emanate from article 2 paragraph 2 of the Constitution which guarantees liberty and requires a statutory authorization for any deprivation of liberty. In addition, several other articles of the Constitution have a bearing on the issue. The most important of these are article 19, which generally requires a statutory basis for any infringements of the fundamental rights guaranteed by the Constitution while also guaranteeing judicial review; article 20, paragraph 3, which guarantees the rule of law; and article 3 which guarantees equality.

In particular, a constitutional obligation to grant remedies for improper detention is required by article 19, paragraph 4 of the Constitution which provides as follows:

India


The Indian judiciary, in a catena of cases has effectively resorted to the writ of habeas corpus to secure release of a person from illegal detention. The Indian judiciary has dispensed with the traditional doctrine of locus standi, so that 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 scope of habeas relief has expanded in recent times by actions of the Indian judiciary. The habeas writ was used in the Rajan case
Rajan case
The Rajan case refers to the death of P. Rajan, a student of the erstwhile Regional Engineering College, Calicut, due to torture in police custody in Kerala, during the nationwide Emergency in India in 1976, and the legal battle that followed, which brought out the facts of the incident.-...

. It was also filed by Panthers Party to protest the imprisonment of Anna Hazare, a social activist.

Ireland


In the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...

 access to the remedy of habeas corpus is guaranteed by Article 40.4 of the 1937 constitution
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...

. This guarantees "personal liberty" to each individual and outlines a detailed habeas corpus procedure. It does not mention the Latin term but includes the English phrase "produce the body". The constitution provides that the habeas procedure is not binding on the Defence Forces
Irish Defence Forces
The armed forces of Ireland, known as the Defence Forces encompass the Army, Naval Service, Air Corps and Reserve Defence Force.The current Supreme Commander of the Irish Defence forces is His Excellency Michael D Higgins in his role as President of Ireland...

 during a state of war or armed rebellion.

Article 40.4.2° states that a prisoner, or anyone acting on his behalf, may make a complaint to the High Court (or to any High Court judge) of unlawful detention. The court must then investigate the matter "forthwith" and may order that the defendant bring the prisoner before the court and give reasons for his detention. The court must immediately release the detainee unless it is satisfied that he is being held lawfully. The full text of the provision is as follows:
The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 in 1922, but the remedy was also guaranteed by Article 6 of the Constitution of the Irish Free State
Constitution of the Irish Free State
The Constitution of the Irish Free State was the first constitution of the independent Irish state. It was enacted with the adoption of the Constitution of the Irish Free State Act 1922, of which it formed a part...

 in force from 1922 to 1937. A similar provision was included when the current constitution was adopted in 1937. Since that date habeas corpus has been restricted by two constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...

s, the Second Amendment
Second Amendment of the Constitution of Ireland
The Second Amendment of the Constitution of Ireland was an omnibus amendment to a variety of articles aimed at implementing a list of many different changes...

 in 1941 and the Sixteenth Amendment
Sixteenth Amendment of the Constitution of Ireland
The Sixteenth Amendment of the Constitution of Ireland provided that a court could refuse bail to a suspect where it feared that while at liberty they would commit a serious criminal offence...

 in 1996.

Before the Second Amendment, an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as he wished. Since the Second Amendment, a prisoner has had only the right to apply to one judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that if the High Court believes someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may only release the individual on bail in the interim.

In 1965, the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could be refused bail only if she was likely to flee or to interfere with witnesses or evidence. Since the Sixteenth Amendment, it has been possible for a court to take into account whether a person has committed serious crimes while on bail in the past.

Malaysia


In Malaysia, the remedy of habeas corpus is guaranteed by the federal constitution, although not by name. Article 5(2) of the Constitution of Malaysia
Constitution of Malaysia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...

 provides that "Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."

As there are several statutes, for example, the Internal Security Act 1960
Internal Security Act (Malaysia)
The Internal Security Act 1960 is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances...

, that still permit detention without trial, the procedure is usually effective in such cases only if it can be shown that there was a procedural error in the way that the detention was ordered.

New Zealand


In New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...

 habeas corpus may be invoked against the government or private individuals. In 2006, a child was allegedly kidnapped by his maternal grandfather after a custody dispute. The father began habeas corpus proceedings against the mother, the grandfather, the grandmother, the great grandmother, and another person alleged to have assisted in the kidnap of the child. The mother did not present the child to the court and so was imprisoned for contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...

. She was released when the grandfather came forward with the child in late January 2007.

The Philippines


In the Bill of Rights of the Philippine constitution, habeas corpus is guaranteed in terms almost identically to those used in the U.S. Constitution. in Article 3, Section 15 of the Constitution of the Philippines
Constitution of the Philippines
The Constitution of the Philippines is the supreme law of the Philippines.The Constitution currently in effect was enacted in 1987, during the administration of President Corazon Aquino, and is popularly known as the "1987 Constitution"...

 states that "The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it."

In 1971, after the Plaza Miranda bombing, the Marcos administration, under Ferdinand Marcos
Ferdinand Marcos
Ferdinand Emmanuel Edralin Marcos, Sr. was a Filipino leader and an authoritarian President of the Philippines from 1965 to 1986. He was a lawyer, member of the Philippine House of Representatives and a member of the Philippine Senate...

, suspended habeas corpus in an effort to stifle the oncoming insurgency, having blamed the Filipino Communist Party
Communist Party of the Philippines
The Communist Party of the Philippines is a leading communist party in the Philippines. It remains an underground political organization since its founding on December 26, 1968 and has been operating in clandestine manner since its founding...

 for the events of August 21. Many considered this to be a prelude to Martial Law
Martial law
Martial law is the imposition of military rule by military authorities over designated regions on an emergency basis— only temporary—when the civilian government or civilian authorities fail to function effectively , when there are extensive riots and protests, or when the disobedience of the law...

. After widespread protests, however, the Marcos administration decided to reintroduce the writ. In December 2009, habeas corpus was suspended in Maguindanao as the province was placed under martial law. This occurred in response to the Maguindanao massacre
Maguindanao massacre
The Maguindanao massacre, also known as the Ampatuan massacre after the town where the mass graves were found, occurred on the morning of November 23, 2009, in the town of Ampatuan in Maguindanao province, on the island of Mindanao in the Philippines...

.

Scotland


The Parliament of Scotland
Parliament of Scotland
The Parliament of Scotland, officially the Estates of Parliament, was the legislature of the Kingdom of Scotland. The unicameral parliament of Scotland is first found on record during the early 13th century, with the first meeting for which a primary source survives at...

 passed a law to have the same effect as habeas corpus in the eighteenth century. This now known as the Criminal Procedure Act 1701 c.6. It was originally called an "the Act for preventing wrongful imprisonment and against undue delays in trials". It is still in force although certain parts have been repealed.

Spain


In 1526 the Fuero Nuevo established a form of habeas corpus in the territory of the Señorío de Vizcaya. The present Constitution of Spain
Constitution of Spain
Spain's first Constitution was passed in 1812. A list of the different Spanish constitutional laws follows:During Franco's dictatorship, there were many attempts to create stable institutions that did not emanate from the dictator as they did in the post-war period...

 states that "A habeas corpus procedure shall be provided for by law to ensure the immediate handing over to the judicial authorities of any person illegally arrested". The statute which regulates the procedure is the Law of Habeas Corpus of 24 May 1984 which provides that a person imprisoned may, on his own or through a third person, allege he is imprisoned unlawfully and request to appear before a judge. The request must specify the grounds on which the detention is considered to be unlawful which can be, for example, that the custodian holding the prisoner does not have the legal authority, that the prisoner's constitutional rights have been violated, or that he has been subjected to mistreatment. The judge may then request additional information if needed and may issue a habeas corpus order at which point the custodian has 24 hours to bring the prisoner before the judge.

United States


The United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 inherited habeas corpus from the English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

. In England the writ was issued in the name of the monarch. When the original thirteen American colonies
Thirteen Colonies
The Thirteen Colonies were English and later British colonies established on the Atlantic coast of North America between 1607 and 1733. They declared their independence in the American Revolution and formed the United States of America...

 declared independence, and became a republic based on popular sovereignty, any person, in the name of the people, acquired authority to initiate such writs. The U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 specifically includes the habeas procedure in the Suspension Clause(Clause 2), located in Article One
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...

, 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."

The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte
Ex parte
Ex parte is a Latin legal term meaning "from one party" .An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. In Australian, Canadian, U.K., Indian and U.S...

proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement
U.S. Immigration and Customs Enforcement
U.S. Immigration and Customs Enforcement is a federal law enforcement agency under the United States Department of Homeland Security , responsible for identifying, investigating, and dismantling vulnerabilities regarding the nation's border, economic, transportation, and infrastructure security...

 pursuant to a deportation proceeding.

Poland


A procedure similar to habeas corpus was adopted in Poland as early as in 1430. Neminem captivabimus
Neminem captivabimus
Neminem captivabimus is a legal term in Lithuanian and Polish historical law.Short for , ....

, short for , (Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...

, "We shall not arrest anyone without a court verdict") was one of the basic rights in Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...

 and Polish-Lithuanian Commonwealth
Polish-Lithuanian Commonwealth
The Polish–Lithuanian Commonwealth was a dualistic state of Poland and Lithuania ruled by a common monarch. It was the largest and one of the most populous countries of 16th- and 17th‑century Europe with some and a multi-ethnic population of 11 million at its peak in the early 17th century...

, stating that the king can neither punish nor imprison any member of the szlachta
Szlachta
The szlachta was a legally privileged noble class with origins in the Kingdom of Poland. It gained considerable institutional privileges during the 1333-1370 reign of Casimir the Great. In 1413, following a series of tentative personal unions between the Grand Duchy of Lithuania and the Kingdom of...

without a viable court verdict. Its purpose is to release someone who has been arrested unlawfully. Neminem captivabimus has nothing to do with whether the prisoner is guilty, only with whether due process has been observed.

World habeas corpus


In the 1950s, American lawyer Luis Kutner
Luis Kutner
Luis Kutner , U.S. human rights activist and lawyer who helped found Amnesty International in 1961 and created the concept of a living will. He is also notable for his advocacy of "world habeas corpus", the development of an international writ of habeas corpus to protect individual human rights...

 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
Czechoslovakia
Czechoslovakia or Czecho-Slovakia was a sovereign state in Central Europe which existed from October 1918, when it declared its independence from the Austro-Hungarian Empire, until 1992...

. Alleging that Czechoslovakia had violated Oatis's rights under the United Nations Charter
United Nations Charter
The Charter of the United Nations is the foundational treaty of the international organization called the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on 26 June 1945, by 50 of the 51 original member countries...

 and the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...

 and that the United Nations General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...

 had "inherent power" to fashion remedies for human rights violations, the petition was filed with the United Nations Commission on Human Rights
United Nations Commission on Human Rights
The United Nations Commission on Human Rights was a functional commission within the overall framework of the United Nations from 1946 until it was replaced by the United Nations Human Rights Council in 2006...

. 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."

See also

  • Arbitrary arrest and detention
    Arbitrary arrest and detention
    Arbitrary arrest and arbitrary detention are the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law...

  • corpus delicti
    Corpus delicti
    Corpus delicti is a term from Western jurisprudence referring to the principle that a crime must have been proven to have occurred before a person can be convicted of committing that crime. For example, a person cannot be tried for larceny unless it can be proven that property has been stolen...

    – other Latin legal term using corpus, here meaning the fact of a crime having been committed, not the body of the person being detained nor (as sometimes inaccurately used) to the body of the victim
  • Edward Hyde, 1st Earl of Clarendon
    Edward Hyde, 1st Earl of Clarendon
    Edward Hyde, 1st Earl of Clarendon was an English historian and statesman, and grandfather of two English monarchs, Mary II and Queen Anne.-Early life:...

  • Habeas Corpus (play)
    Habeas Corpus (play)
    Habeas Corpus is a comedy stage play by the English author Alan Bennett. It was first performed at the Lyric Theatre in London on 10 May 1973, with Alec Guinness and Margaret Courtenay in the lead roles....

    , by the English writer and playwright Alan Bennett.
  • Habeas Corpus Restoration Act of 2007
    Habeas Corpus Restoration Act of 2007
    A bill, provisionally called the Habeas Corpus Restoration Act of 2007, , passed the United States Senate Judiciary Committee on Thursday, June 7, 2007.The bill was sponsored by Democratic Senator Patrick Leahy and Republican Senator Arlen Specter....

  • Habeas Data
    Habeas Data
    Habeas data is a writ and constitutional remedy available in certain nations. The literal translation from Latin of habeas data is “[we command] you have the data”...

  • List of legal Latin terms
  • Military Commissions Act of 2006
    Military Commissions Act of 2006
    The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...

  • Murder conviction without a body
    Murder conviction without a body
    Conviction for murder in the absence of a body is possible; although historically, cases of this type have been hard to prove, the prosecution must rely on other evidence, usually circumstantial. Recent developments in forensic science make it less likely that such a murder will go unpunished...

  • Philippine Habeas Corpus Cases
    Philippine Habeas Corpus Cases
    Philippine habeas corpus cases are cases decided by the Supreme Court of the Philippines, concerning the writ of habeas corpus.The writ of habeas corpus may be suspended in order to prevent any violence in cases of rebellion or insurrection, as the case may be...

  • Recurso de amparo (Writ of amparo)
  • Subpoena ad testificandum
    Subpoena ad testificandum
    A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the Ecclesiastical Courts of the High Middle Ages, especially in England...

  • Subpoena duces tecum
    Subpoena duces tecum
    A subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....


Further reading

  • Asha Bandele "Habeas Corpus is a legal Entitlement", a poem in Absence in the Palms of My Hands & Other Poems. New York: Harlem River Press. 1996.
  • A.H. Carpenter. "Habeas Corpus in the Colonies." The American Historical Review. Vol. 8., No. 1 (October 1902), pages 18–27.
  • Louis Fisher. 2003. Nazi Saboteurs on Trial: A Military Tribunal and American Law. University Press of Kansas. ISBN 0-7006-1238-6.
  • Michael Dobbs. 2004. Saboteurs: The Nazi Raid on America. Vintage. ISBN 1-4000-3042-0.
  • Charles Doyle. 2006. Federal Habeas Copus: A Brief Legal Overview. Congressional Research Service.
  • Peter Irons. 1999. A People's History of the Supreme Court. Viking. ISBN 0-670-87006-4. Political context for Ex Parte Milligan explained on Pp. 186–189.
  • Helen A. Nutting. "The Most Wholesome Law—The Habeas Corpus Act of 1679." The American Historical Review. Vol. 65., No. 3 (April 1960), pages 527–543.
  • Geoffrey R. Stone. 2004. Perilous Times, Free Speech in Wartime From the Sedition Act to the War on Terrorism. Norton. ISBN 0-393-05880-8.
  • Cary Federman. 2006. The Body and the State: Habeas Corpus and American Jurisprudence. SUNY. ISBN 0-7914-6703-1.
  • Eric M. Freedman. 2001. Habeas Corpus: Rethinking the Great Writ of Liberty (NYU Press) ISBN 0-8147-2717-4
  • Lisa M. Seghetti and Nathan James. 2006. Federal Habeas Corpus Relief: Background, Legislation, and Issues. Congressional Research Service.
  • Donald E. Wilkes, Jr., The Georgia Death Penalty Habeas Corpus Reform Act of 1995 (1995) & Habeas Corpus: The Great Writ Hit (2006) & Habeas Corpus Uncorpsed (2008) & Habeas Corpus and Baseball (2006) & The Writ of Habeas Corpus in Georgia (2007) & Writ of Habeas Corpus, from The New Georgia Encyclopedia (2009).

External links