Habeas corpus, a Latin word meaning “may you have the body,” is a legal action where a prisoner is able to be released from unlawful detention due to a strong lack of evidence. Commonly associated with this practice is what is known as a writ of habeas corpus.
This particular court order summons is addressed to the custodian, such as a prison official, and demands that the prisoner is taken before the court along with demanding that the custodian provide proof of authority over the prisoner. In this manner, the court is able to determine whether or not the custodian is legally able to detain the prisoner. If the custodian is found to not have authority, the prisoner will be released.
While the original use of the phrase “habeas corpus ad subjiciendum” dates back to 1305 during the reign of King Edward I in England. The procedure for citing a writ of habeas corpus was first implemented by the Habeas Corpus Act 1679. Similar to how it is enforced today, the writ was issued by the court for the prisoner and commanded the person in charge of holding them to produce the prisoner before the court.
A Habeas Corpus petition was allowed to be made by the prisoner or by a third party on the prisoner’s behalf simply by presenting this petition to the judge, regardless of whether or not court was in session.
United States: The U.S. inherited habeas corpus from England when the original thirteen colonies declared independence. When this occurred and they became a republic based on the idea of popular sovereignty, any person was now able to issue writs in the name of the people.
The U.S. Constitution specifically discusses the habeas corpus procedure in Article One, Section 9, with the Suspension Clause. It states,“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.”
Canada: While the rights of habeas corpus have existed under common law in Canada for quite some time, they were not officially preserved until the Constitution Act of 1982. In the Charter of Rights and Freedoms under Section Ten, it 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.” While the writ is available when there is no other adequate remedy, the court is always able to grant writ even when an alternate remedy exists.
World Habeas Corpus
During the 1950s, an American lawyer named Luis Kutner began petitioning for an international writ of habeas corpus that could be implemented to protect human rights. A petition entitled “United Nations Writ of Habeas Corpus” was filed by Kutner in 1952 for William N. Oatis, an American journalist who was jailed the year before by the Communist government of Czechoslovakia.
The petition stated that Czechoslovakia had violated Oatis’s rights and that the United Nations General Assembly had the power to implement remedies regarding human rights violations. Filed under the United Nations Commission on Human Rights, the petition was forwarded to Czechoslovakia, but no further action was taken by the United Nations after this.
As habeas corpus law is under the national law system, governments are able to handle it anyway they choose to.
This article was written by Aaron Hutchens, who is a avid history buff with a love for law. Hutchens suports a successful criminal law practice called Michael. S. Berg in San Diego.