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Changes
to the law governing
refugees at the end of 2012
seemed blatantly contrary to
promised rights and
freedoms. Mandatory
detention with denial of
appeal rights to labelled
refugees, for example those
coming from countries
declared “safe,” challenge
the 1951 Convention relating
to the status of refugees.
It declares (article 3) that
refugees are to be treated
equally whichever country
they come from. So I began
to explore the origins of
rights and due process
rights. In
the centre of the town of
Diss, Suffolk, near my
birthplace in England, is a
plaque recalling how the
daughter of the nobleman of
the area had refused the
hand in marriage of King
John and had been killed.
The nobleman was
subsequently one of those
nobles who forced this King
to sign the Magna
Carter
in which a package of
rights was guaranteed to
subjects. When I saw Paul
Halliday’s book Habeas
Corpus: From England to
Empire (Belknap
Harvard 2010) I picked it
up. I found historic echoes
of legislating to suspend
rights from labelled groups
of people. Yet reflecting on
the book I find myself
disagreeing with its sad
ending. In contrast, I think
Habeas
Corpus has been
transformed and that its new
form may come to offer
relief again in a new wider
context. The introduction
promised a history of
England and empire because
no other law has so touched
lives. It promised to go
beyond accounts of chief
justices to case reports and
manuscripts which revealed
the practices and thoughts
of lawyers at various
points. And it did. The link
of Habeas
Corpus
to Magna
Carta was contrived
later, and the genesis of Habeas Corpus was as an aspect of
sovereignty rather than
something inspired by a
vision of liberty. Concepts
of liberty arose later
outside the law.
Nonetheless, the book shows
how Habeas
Corpus did provide
relief to a wide swath of
individuals far flung across
a young growing empire.
Despite limits imposed
later, the writ remains part
of a powerful emotive
liberal legal appeal. The first part
of the book aims to show how
judges made Habeas
Corpus. I did find in
chapter 1 that the 1225
revision of the 1215 Magna
Carta contained a
clause 29 which says: “No
free man shall be arrested
or imprisoned … except by
the lawful judgement of his
peers or the laws of the
land.”
This was referred to
by Attorney General Sir
Edward Coke in 1605 when the
book begins its examination
- and indeed the lawfulness
of imprisonment remains a
key component to this day. However
it was Coke’s notion that
the examination of any other
court or exercise of justice
fell to the sovereign
prerogative of the King and
his bench. It was this
notion which was picked up
and elaborated by Chief
Justice Popham and others. The
development and testing of
this concept by the Kings
bench forms the narrative of
chapter 1. Although the writ
challenged other
jurisdictions like the
Council in the Marches of
Wales, and the Admiralty,
the roles of the courts was
cooperative rather than a
system of checks and
balances. Chapter 2 traces
the detail of writing a
writ, its receipt, the
return,
judicial decision
making, the clause
compelling obedience and the
justice’s sign-off. Cases
involve release of a
detainee who lacked
requisite trading rights and
release of women detained by
husbands committing wife
abuse. Chapter 3 explores
the writ of the prerogative
– the notion, some history,
some other writs and the
scope and reach of the Habeas
Corpus writ. The
second part of the book
explores the use of the
writ. Chapter 4 shows how
judgments were made in times
of war and fear about
treason and that beyond
granting bail for those
imprisoned on flimsy
evidence, the decisions
defined the jurisdiction of
all other magistrates.
Chapter 5 explores this
defining of jurisdiction
from the notion of the
subject of the King –
extending to territories
like the Channel Isles and
American Plantations and
extending to groups such as
Prisoners of War and Slaves.
Chapter 6 explores making
liberty and the beginnings
of the notion of “liberty”
and the notion of making
subjects – from anyone, even
an alien, who owed the King
allegiance. The
third part of the book, “Habeas Corpus Bound and
Unbound,” explores the
tension confronting the writ
as it became legislated and
as the empire grew.
Chapter 7 is an
account of efforts to
legislate leading up to the
Habeas Corpus Act
1679. The stage is set
for parliament as law making
versus the common law
applied by the King’s Bench
with its writ of Habeas
Corpus.
The House of Lords is
the highest court in the
land. If it thought it
lawful to do so, it could
imprison. Tensions grew
again when those committed
to jail by parliament used
parliament’s Habeas Corpus
Act. In 1689, at a time
preceding Jacobite
rebellions, parliament
suspended the Act for the
first time. And parliament
subsequently did so
repeatedly. On a positive
note, parliament never
actually formally suspended
the writ. Rather it
legislated to empower the
King to apprehend and
detain, usually on suspicion
of treason. All such
legislation had a date for
termination. But the power
to detain remained with the
Privy Council – without
judicial oversight. Some use
of the common law writ
persisted during the
suspension. More important,
the writ revived rapidly
once the suspension ended.
The suspension in 1777 for
the war in the American
colonies was different. The
necessity for England itself
was less. There was an
indefinite long timeline.
The suspension distinguished
among “subjects.” This
began a pattern of
distinguishing among
subjects in other colonies –
New Zealand, Quebec and
India. Although Habeas
Corpus
spread to the colonies
by common law, the colonies
all clamoured for their own
courts to have their own
laws of Habeas Corpus.
However, following the
Habeas Corpus laws came a
string of suspensions made
by colonial legislative
councils. Only England
required parliamentary
approval! Chapter 8 explores
how the writ extended into
the colonies and other
places where the King or
Queen’s subjects resided
even when these places were
governed by differing laws.
It ends showing how once
overseas, with differing
courts and judges, the writ
operated as a shadow of its
theoretical self. The
final chapter, the palladium
of liberty, questions
whether the legislated Act
was a significant guardian
for liberty or not: For the
English, maybe; for the
Irish, maybe not. The
chapter traces the
suspension of the writ on
grounds of emergency in a
series of countries –
Canada, Jamaica, India – and
also the then independent
United States during its
Civil War. Whether
in Quebec in the 1830s,
England in the 1910s and
1920s, or Kenya in the
1950s, legislation prevented
judges from examining the
unfettered government
detention of people by
virtue of their apparent
membership in a labelled
group. Despite the
legislation, some judges did
try to stop unfettered
detention. Justice Vallieres
de Saint-Real tried but
failed in Quebec. The
Chapter concludes that the
writ’s vigour may have
peaked in 1780, but that the
writ continues to influence
public debate. The
book’s author notes with
sadness that the writ,
complete with its limits in
times of national security
or other necessity, has now
moved into the international
realm as text of ratified
human rights treaties such
as the European Convention
on Human Rights and
Freedoms. In 1952 Britain
had ratified this European
Convention and yet was able
to issue a series of
draconian colonial edicts in
Kenya relating to the Mau
Mau movement. If one stopped
there, that would justify
the book’s rather sad conclusion
about Habeas Corpus. Looking
over case law of the human
rights treaty bodies from
today, I see a picture which
is slightly more hopeful.
The adaptation of Habeas Corpus into
the texts of several
international treaties in
and of itself transforms
this instrument from a mixed
bag of laws in former
British colonies into a
defined world- wide
instrument. More than this,
it comes with world-wide
oversight – albeit weak
oversight. The
book’s stories about the
colonial governor detaining
versus the colonial judge
watching share some
similarity with the treaty
body examining a case of a
person whom the government
of a Nation State has
decided to detain, but there
are differences. In
2012 the colonial era has
past. The
European Court of Human
Rights can now hear cases
based on the European
Convention on Human Rights
and Freedoms. The Council of
Europe has some political
clout as a pin in the
structures allowing European
economic cooperation. The UN
Human Rights Committee which
interprets the UN Covenant
on Civil and Political
Rights is a bit weaker. Both
these treaty bodies are
arms-length from the Nation
State. Although
national security can set
some limits on the right to
be brought promptly before a
judge who will rule on the
lawfulness of a person’s
detention, mistaken
decisions can go before the
international treaty body.
The treaty body itself will
interpret the
extent to which national
security can limit the
right. And before the treaty
body, the “lawfulness” of a
detention refers to
international lawfulness and
not any particular local law
in the Nation State.
Habeas
Corpus has been
transformed into a new
global human rights
protection which draws not
on the fact that one is a
subject of the King, but
rather on the fact that one
is a member of the people of
the United Nations. The
arms-length independence
provides that some agency
has the authority to call
the State which detains to
account and can call for
release of a person - even
if that agency lacks the
power of the King to enforce
its judgment.  |