Habeas corpus

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Habeas corpus (/ˈheɪbiəs ˈkɔːrpəs/ Medieval Latin meaning "[we, a Court, command] that you have the body [of the detainee brought before us].")[1] is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.[2]

The writ of habeas corpus is known as the "great and efficacious writ in all manner of illegal confinement".[3] It is a summons with the force of a court order; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be brought 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 prisoner. If the custodian is acting beyond their authority, then the prisoner must be released. Any prisoner, or another person acting on their 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. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus.[4] 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. Though a writ of right, it is not a writ of course. 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. In some countries, the writ has been temporarily or permanently suspended under the pretext of a war or state of emergency, for example by Abraham Lincoln during the American Civil War.

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".[5]

The writ of habeas corpus is one of what are called the "extraordinary," "common law," or "prerogative writs," 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, prohibito, mandamus, procedendo, and certiorari. 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 must prove their 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.


The phrase is from the Latin habeās, 2nd person singular present subjunctive active of habēre, "to have," "to hold;" and corpus, accusative singular of corpus, "body." In reference to more than one person, the phrase is habeas corpora.

Literally, the phrase means "[we command] that you should have the [detainee's] body [brought to court]". The complete phrase habeas corpus [coram nobis] ad subjiciendum means "that you have the person [before us] for the purpose of subjecting (the case to examination)". These are words of writs included in a 14th-century Anglo-French document requiring a person to be brought before a court or judge, especially to determine if that person is being legally detained.[6]

Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve.[7]

We command you, that the body of A.B. in our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ.[7]

Similarly named writs

The full name of the writ is often used to distinguish it from similar ancient writs, also named 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

Habeas corpus originally stems from the Assize of Clarendon, a reissuance of rights during the reign of Henry II of England in the 12th century.[8] The foundations for habeas corpus are "wrongly thought" to have originated in Magna Carta.[9] This charter declared that:

No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.

However the preceding article of Magna Carta, nr 38, declared that:

No legal officer shall start proceedings against anyone [not just freemen, this was even then a universal human right] on his own mere say-so, without reliable witnesses having been brought for the purpose.

- in the original Latin:

Nullus balivus ponat aliquem ad legem, simplici sua loquela, sine testibus fidelibus ad hoc aductis.

Pursuant to that language, a person may not be subjected to any legal proceeding, such as arrest and imprisonment, without sufficient evidence having already been collected to show that there is a prima facie case to answer. This evidence must be collected beforehand, because it must be available to be exhibited in a public hearing within hours, or at the most days, after arrest, not months or longer as may happen in other jurisdictions that apply Napoleonic-inquisitorial criminal laws where evidence is commonly sought after a suspect's incarceration. Any charge leveled at the hearing thus must be based on evidence already collected, and an arrest and incarceration order is not lawful if not supported by sufficient evidence.

In contrast with the common law approach, consider the case of Luciano Ferrari-Bravo v. Italy[10] the European Court of Human Rights ruled that "detention is intended to facilitate … the preliminary investigation". Ferrari-Bravo sought relief after nearly five years of preventive detention, and his application was rejected. The European Court of Human Rights deemed the five year detention to be "reasonable" under Article 6 of the European Convention on Human Rights, which provides that a prisoner has a right to a public hearing before an impartial tribunal within a "reasonable" time after arrest. After his eventual trial, the evidence against Ferrari-Bravo was deemed insufficient and he was found not guilty.

William Blackstone cited the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying "[t]he 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, following judicial rulings which had restricted the effectiveness of the writ. A previous law (the Habeas Corpus Act 1640) 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.[11][12] The cornerstone purpose of the writ of habeas corpus was to limit the King's Chancery's ability to undermine the surety of law by allowing courts of justice decisions to be overturned in favor and application of equity, a process managed by the Chancellor (a bishop) with the King's authority.[13]

The 1679 codification of habeas corpus took place in the context of a sharp confrontation between King Charles II and the Parliament, which was dominated by the then sharply oppositional, nascent Whig Party. The Whig leaders had good reasons to fear the King moving against them through the courts (as indeed happened in 1681) and regarded habeas corpus as safeguarding their own persons. The short-lived Parliament which made this enactment came to be known as the Habeas Corpus Parliament – being dissolved by the King immediately afterwards.

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 him or herself or by a third party on his or her 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 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1772), where the black slave, Somersett, was ordered to be freed.[14] During that case, these famous words are said to have been uttered: "... that the air of England was too pure for slavery."[15] (although it was the lawyers in argument who expressly used this phrase – referenced from a much earlier argument heard in The Star Chamber – and not Lord Mansfield himself). During the Seven Years' War and later conflicts, the Writ was used on behalf of soldiers and sailors pressed into military and naval service.[16] The Habeas Corpus Act 1816 introduced some changes and expanded the territoriality of the legislation.

The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorized by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, 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, the petition for habeas corpus is unsuccessful. Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights, but such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government.[17]

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 bailed by order of the court without having to be produced before it. With the development of modern public law, applications for habeas corpus have been to some extent discouraged, in favor of applications for judicial review.[18] The writ, however, maintains its vigour, and was held by the UK Supreme Court to be available in respect of a prisoner captured by British forces in Afghanistan, albeit that the Secretary of State made a valid return to the writ justifying the detention of the claimant.[19]

Precedents in Medieval Catalonia and Biscay

Although the first recorded historical references come from Anglo-Saxon law in the 12th century and one of the first documents referring to this right is a law of the English Parliament (1679), it must be noted that in Catalonia there are already references from 1428 in the «recurs de manifestació de persones» (appeal of people's manifestation) collected in the ‘’Furs de les Corts’’ of the Crown of Aragon and some references to this term in the Law of the Lordship of Biscay (1527).

In 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. Article 3, Section 15 of the Constitution of the Philippines 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, suspended habeas corpus in an effort to stifle the oncoming insurgency, having blamed the Filipino Communist Party for the events of August 21. Many considered this to be a prelude to martial law. After widespread protests, however, the Arroyo 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.[20]

In 2016, President Rodrigo Duterte said he was planning on suspending the habeas corpus.[21]

On 23 May 2017, President Rodrigo Duterte declared martial law in Mindanao including Sulu and Tawi-tawi for the period of 60 days due to the series of attacks mounted by the Maute group, an ISIS-linked terrorist organization. The declaration suspended the writ.[22]


  1. habeas corpus.
  2. What is Habeas Corpus (en) (24 July 2016).
  3. Cite error: Invalid <ref> tag; no text was provided for refs named Blackstone1768
  4. Venn Dicey, Albert (1908). Introduction to the Study of the Law of the Constitution. 
  5. Wright, Anthony (1994). Citizens and Subjects: an essay on British politics. Routledge. ISBN 9780415049641. 
  6. habeas corpus.
  7. 7.0 7.1 Hurd, Rollin Carlos (1858). Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus and the Practice Connected with it: With a view of the Law of Extradition of Fugitives. W. C. Little and Company. 
  8. Assize of Clarendon, 1166. Yale University (1 December 1998).
  9. Turner, Ralph V. (2003). Magna Carta. Pearson, 162, 219. 
  10. Application No. 9627/81 Luciano Ferrari-Bravo v. Italy, Decision on the admissibility of the application (14 March 1984).
  11. Cohen, Maxwell (1940). "Habeas Corpus Cum Causa – The emergence of the modern writ-II". Can. B. Rev. 18: 172, 174–175.
  12. Cite error: Invalid <ref> tag; no text was provided for refs named EB1911
  13. Landman, James. Understanding Habeas Corpus.
  14. Moncreiff, Frederick Charles (2006). The Wit and Wisdom of the Bench and Bar. The Lawbook Exchange, Ltd., 85–86. 
  15. Somerset v Stewart, 98 ER 499, 501 (Lofft 1 1772).
  16. Costello, Kevin (2008). "Habeas Corpus and Military and Naval Impressment 1756–1816". The Journal of Legal History. 29 (2): 215. doi:10.1080/01440360802196679. hdl:10197/6059. S2CID 143694900.
  17. Sixteenth Report. Joint Committee On Human Rights (Report). Parliament of the United Kingdom.
  18. Re: (Habeas Corpus) [1996] QB 599; Re B [1991] 1 FLR 106
  19. Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah, 48 (UKSC 2012).
  20. Andoy Barrios (2009-12-05). Arroyo proclaims martial law in Maguindanao. ABS-CBN News Online.
  21. Esmaquel, Paterno II. "Duterte to suspend writ of habeas corpus if 'forced'", Rappler, November 13, 2016. 
  22. Duterte declares martial law in Mindanao (2017-05-24).

Further reading

  • Bandele, Asha (1996). "Habeas Corpus is a legal Entitlement", Absence in the Palms of My Hands & Other Poems. New York: Harlem River Press. 
  • Carpenter, A.H. (October 1902). "Habeas Corpus in the Colonies". The American Historical Review. 8 (1): 18–27. doi:10.2307/1832572. JSTOR 1832572.
  • Fisher, Louis (2003). Nazi Saboteurs on Trial: A military tribunal and American law. University Press of Kansas. ISBN 0-7006-1238-6. 
  • Dobbs, Michael (2004). Saboteurs: The Nazi raid on America. Vintage. ISBN 1-4000-3042-0. 
  • Doyle, Charles (2006). Federal Habeas Copus: A brief legal overview (Report). Congressional Research Service.
  • Irons, Peter (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.
  • Nutting, Helen A. (April 1960). "The Most Wholesome Law—The Habeas Corpus Act of 1679". The American Historical Review. 65 (3): 527–543. doi:10.2307/1849620. JSTOR 1849620.
  • Stone, Geoffrey R. (2004). Perilous Times: Free speech in wartime, from the Sedition Act to the War on Terrorism. Norton. ISBN 0-393-05880-8. 
  • Federman, Cary (2006). The Body and the State: Habeas Corpus and American Jurisprudence. SUNY. ISBN 0-7914-6703-1. 
  • Freedman, Eric M. (2001). Habeas Corpus: Rethinking the great writ of liberty. NYU Press. ISBN 0-8147-2717-4. 
  • Seghetti, Lisa M.; James, Nathan (2006). Federal Habeas Corpus Relief: Background, legislation, and issues (Report). Congressional Research Service.
  • Wilkes, Donald E. Jr. (1995). The Georgia Death Penalty Habeas Corpus Reform Act of 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 (2009).