Habeas Corpus (pronounced )


Habeas corpus (pronounced )

You (shall) have the body[1]) is a legal action, or writ, through which a person can seek relief from their unlawful detention or that of another person. It protects individuals from harming themselves or from being harmed by the judicial system. Of English origin, the writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

A writ of habeas corpus ad subjiciendum, also known as “The Great Writ”, 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 his 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. The British 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.” 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.”[2] 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 June 12, 2008, the U.S. Supreme Court ruling in Boumediene v. Bush recognized habeas corpus rights for the Guantanamo prisoners. On October 7, 2008, the first Guantanamo prisoners were ordered released by a court considering a habeas corpus petition.[3]

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. 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.

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