Habeas corpus

In common law, habeas corpus is the name of several writs which may be issued by a judge ordering a prisoner to be brought before the court. More commonly, the name refers to a specific writ known in full as habeas corpus ad subjiciendum, a prerogative writ ordering that a prisoner be brought to the court so it can be determined whether or not the prisoner is being imprisoned lawfully.

The words habeas corpus ad subjiciendum are Latin for "(That) you may have/hold the body to be subjected to (examination)", and are taken from the opening words of the writ in medieval times. Other habeas corpus writs also existed, for example habeas corpus ad testificandum ("[That] you may have/hold the body to bear witness"), for the production of a prisoner to give evidence in court.

Habeas corpus ad subjiciendum

Known as the "Great Writ", the writ of habeas corpus ad subjiciendum is a legal proceeding in which an individual held in custody can challenge the propriety of that custody under the law. The prisoner, or some other person on his behalf (e.g. where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

Although the form 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, modern practice is to have a hearing with both parties present on whether the writ should issue, rather than issuing the writ immediately and waiting for the return of the writ by the addressee before the legality of the detention is examined. The prisoner can then be released or bailed by order of the court without having to be produced before it.

The right of habeas corpus—the right to file a petition for a writ of habeas corpus—has long been celebrated as the most efficient safeguard of the liberty of the subject. 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 are generally not called "habeas corpus".

Other habeas corpus writs

• Habeas corpus ad deliberandum et recipiendum ("[That] you may have/hold the body to deliberate and retire")

• Habeas corpus ad faciendum et recipiendum, a.k.a. habeas corpus cum causa ("[That] you may have/hold the body when there is a case at law")

• Habeas corpus ad prosequendum ("[That] you may have/hold the body to prosecute")

• Habeas corpus ad respondendum ("[That] you may have/hold the body to answer")

• Habeas corpus ad satisfaciendum ("[That] you may have/hold the body until it is sufficient [to let him/her go]")

• Habeas corpus ad testificandum ("[That] you may have/hold the body to bear witness")

A. V. Dicey

Albert Venn Dicey (February 4, 1835 – April 7, 1922) was a British jurist and constitutional theorist who wrote An Introduction to the Study of the Law of the Constitution (1885). The principles it expounds are considered part of the uncodified British constitution. He had been a graduate of Balliol College, Oxford and became professor of Law at Oxford and a leading constitutional scholar of his day.He became a lawyer in 1863 and was appointed the Vinerian Chair of English Law at Oxford in 1882. In his first major work, the seminal An Introduction to the Study of the Law of the Constitution, Dicey warned that freedom was under attack by modern incursions against the Rule of Law. He understood that the freedom British subjects enjoyed was dependent on the sovereignty of Parliament, the impartiality of the courts free from governmental interference and the supremacy of Common Law. He later left Oxford and went on to become one of the first Professors of Law at the (at the time) new London School of Economics. There he published in 1896 his "Conflict of Laws."

Other notable works include: The Privy Council (1887) and Lectures on the Relation Between Law & Public Opinion In England (1905).

Australia

Although the writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance, recently proposed legislation if enacted would severely restrict the efficacy of that remedy. In October 2005, the Australian Federal Government under the leadership of Prime Minister John Howard, proposed the Federal Anti-Terrorism Bill 2005. Before the bills are introduced for debate in the Australian Parliament, the draft has been forwarded to the States and Territories for approval.

The proposed legislation is currently being debated in both the federal and state parliaments and some legal experts have stated that the Act is unconstitutional because it abolishes habeas corpus, due process, and the presumption of innocence. Some Solicitors-General also consider the Act violates the separation of powers. Under the Act, a person can be detained without charge or trial for a period of one year. Amendments made that were proposed by some Premiers and Liberal backbenchers include a greater right of appeal of a detained person, and the case to be considered on the basis of merit, rather than points of law.

The proposed bill is considered contrary to habeas corpus because it allows people to be imprisoned by a decision of the executive branch of government rather than the judiciary, to be imprisoned indefinitely without charge or trial, and it makes it an offence to even talk about somebody being imprisoned. One of the more controversial aspects of the legislation is the requirement that a parent, if informed of their child's detention, may not inform any further person, including the other parent. This clause also applies to detention of adults.

Republic of Ireland

In the Republic of Ireland the principle of habeas corpus is guaranteed by Article 40, Section 4 of the Irish constitution. This guarantees each individual "personal liberty" and outlines a detailed habeas corpus procedure, without actually mentioning the Latin term. 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. A similar provision was included when the current constitution was adopted in 1937. Since that date habeas corpus has been restricted by two constitutional amendments, the Second Amendment in 1941 and the Sixteenth Amendment 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 they wished. Since the Second Amendment a prisoner only has a 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, where the High Court believed 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 only be refused bail if they were 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 or not a person has committed serious crimes while on bail

Due process

Due process of law is a legal concept that ensures the government will respect all of a person's legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property. Due process has also been interpreted as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice, and liberty. The legal systems of many nations embrace some variant of this, such as the concept of fundamental justice in Canada.

International Due Process

Most countries recognize some form of due process under customary international law. Although the specifics are nebulous, there has been consensus that a nation must guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they were bound to grant no more rights to aliens than they did to their own citizens—the doctrine of national treatment—which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights law and the frequent use of treaties to govern treatment of foreign nationals abroad, the distinction in practice between these two perspectives has all but disappeared.

Procedural due process

Procedural due process is essentially based on the concept of procedural fairness. As a bare minimum, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. In criminal cases, it ensures that an accused person will not be subjected to cruel and unusual punishment.

Substantive due process

The courts have viewed the due process clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are "implicit in ordered liberty." Just what these rights are is not always clear, though life, property, and freedom from imprisonment are some of the better established. Others include the right to vote, the right to travel, and the right to privacy (which itself contains rights to raise, have, and not have children). Some of these rights have long histories or "are deeply rooted" in our society. For example, by the way battery has been defined by courts, common law held for centuries that people have the right to refuse medical treatment. Now, even if states changed the definition of battery to exclude unwanted medical procedures, many courts would find that right under the "liberty" part of the due process clause.

The courts have largely abandoned the Lochner era approach (approximately 1890-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract.

Modern substantive due process doctrine protects such rights such as the right to privacy, under which rights of bodily autonomy, private sexual activity (Lawrence v. Texas), contraception (Griswold v. Connecticut), and abortion (Roe v. Wade) fall, as well as most of the protections of the Bill of Rights. However, what are seen as failures to protect enough of our basic liberties and what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use.

If the right at issue is considered a fundamental right, the government is prohibited from infringing that right unless the infringement is narrowly tailored to serve a compelling interest. The concept of a 'compelling interest' has never been well defined, but generally refers to something necessary or crucial, as opposed to something merely preferred. The concept of 'narrow tailoring' essentially means that the restrictions must fit the goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored. Finally, even if the government intrusion is narrowly tailored, it still cannot be more restrictive than other effective means of achieving that interest. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

Judicial review of substantive due process violations

When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts use two forms of scrutiny, or judicial review. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. In order to pass strict scrutiny review, the law or act must be narrowly tailored to a compelling government interest. When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. A law is more likely to survive constitutional challenges under rational basis scrutiny than under strict Natural rights

Natural rights

(also called moral rights) are universal rights that are seen as not contingent upon being granted by government. Government may violate a natural right, but in doing so it is not eliminating the existence of that right. For example, if there is a natural right to be free, then a government that enslaves an individual is violating an individual's right to liberty rather than eliminating the existence of that right. Hence, natural rights provide a moral justification for condemning actions taken against individuals by governments or other individuals. Those who advocate natural rights hold that there are certain liberties that should not be violated regardless of other considerations. This contrasts with legal positivism which holds that the only rights that can exist are legal rights. John Locke was one of the first Western theorists to conceptualize rights as natural and inalienable, that is, they could not be bought or sold, but were derived from common human nature. Many philosophers and statesmen have designed lists of what they believe to be natural rights; almost all include the right to life and liberty, as these are considered to be the two highest priorities. R. M. Hare has argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. The existence of natural rights may be derived by individuals in various ways, such as through philosophical reasoning or religious study. For example, Immanuel Kant claimed to derive natural rights through "reason" alone. The term "natural rights" lost popularity, particularly after World War II and was replaced with the term human rights, because natural law had become very controversial.

The primary modern Western philosopher who fully made natural rights the source of his moral and political philosophy was Thomas Hobbes (1588-1679). Hobbes argued that it is human nature to love one's self best and seek one's own good (bonum sibi). Since it is unavoidable ("necessity of nature") for human beings to follow their nature, it becomes a right to do so. To deny this right is to deny that we have a right to be human, which would be absurd, just as it would be absurd to demand that carnivores reject meat or that fish stop swimming. Therefore, we have no obligations by birth or nature, but only unlimited rights - until for reasons of self-interest we consent to waive some of these natural rights and create moral obligations in order to establish political and civil society.

Presumption of innocence

Presumption of innocence is a legal right that the accused enjoys in criminal trials in many modern nations. It states that no person shall be considered guilty until finally convicted by a court. The burden of proof is thus on the prosecution, which has to convince the court that the accused is guilty beyond a reasonable doubt. In principle, the defence does not have to 'prove' anything. However, the defence will often adduce evidence which would tend to show that there is a doubt as to the guilt of the accused.

Conversely, in many authoritarian regimes the prosecution case is, in practice, believed by default unless the accused can prove he is innocent, a practice called presumption of guilt. Many people believe that presumption of guilt is unfair and even immoral because it allows the strategic targeting of any individual, since it's often difficult to firmly establish proof of innocence (for example, it's often impossible to establish an alibi if the person is home alone at the time of the crime).

In many countries belonging to the Anglo-Saxon legal tradition, the Principle of Presumption of Innocence is phrased such that "the accused is presumed to be innocent until it has been declared guilty by a court". This abbreviated form neglects the point that a person may continue to appeal a decision, and will be presumed innocent until a final decision is made. Therefore people who have been found guilty in lower courts of law, but have pending appeals, cannot have their citizen's rights (such as to vote and to be elected) stripped nor can they be permanently removed from their offices, but merely suspended.