ABC Radio National - Julian Burnside on Habeas Corpus (03/03/2007) | Текст песни

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• Julian Burnside on Habeas Corpus (03/03/2007)

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Julian Burnside on habeas corpus
Saturday 3 March 2007 3:45PM

The detention of David Hicks has introduced argument over the language of the law and of military justice into our daily news bulletins and public discussion.

But how many of us really understand the meaning of the ancient legal terms, habeas corpus and hearsay? Can torture be redefined as coercion? And what do we understand by the language of military justice, military commission and court martial; or terms specific to the Guantanamo Bay inmates, the illegal enemy combatants?

This week, Julian Burnside, QC, barrister, author and human rights campaigner, explains habeas corpus.

Transcript

Julian Burnside: The Latin expression habeas corpus is familiar to English speakers around the world. This is so for at least two reasons. First, along with trial by jury it is an echo of Magna Carta. Secondly, it is heard regularly in television dramas. Habeas corpus is the symbol of one of English law's most basic assumptions: the right to liberty.

It is the way a court can be asked to examine the lawfulness of a person's detention.

For a writ of such symbolic power, its origins were unpromising. It began as a procedural device by which the Common law courts tried to trump the power of the courts of Admiralty and of Chancery.

Habeas corpus means literally 'thou shalt have the body (in court)'. Habeas is from the Latin habeo 'I have'. The word habeas survives in English only in habeas corpus. By contrast, corpus (body) has spawned many English words: corporal, corporeal, corporation, corpse, corpulent, corpuscle and (according to Tillotson's speculation in a sermon in 1742) hocus pocus: a corruption of hoc est corpus -- the words of the eucharist: here is the body. (It may be that Tillotson was running a campaign against the theory of transsubstantiation.)

If a person was being held by someone else they (or someone on their behalf) could seek a writ of habeas corpus. When issued, the writ required the jailer (or whoever was detaining the person) to come to court and explain why they were holding the person. If the answer to the writ was a lawful justification, the writ was discharged. Otherwise the court would order the person's release.

A related writ directed the sheriff to procure the attendance of jurors who were reluctant to give up their time. It was habeas corpora juratorum. It has not acquired the power and resonance of its singular cousin.

Although habeas corpus was originally a procedural device in a turf war between courts, lawyers began to see that it fulfil the promise in article 39 of Magna Carta: 'No free man shall be seized or imprisoned, or stripped of his rights or possessions, ... except by the lawful judgement of his equals or by the law of the land.' This was a promise of the principle of legality which had the potential to make habeas corpus a really powerful weapon against executive power. Such a weapon was sorely needed by the time of the Stuart kings.

During the late 16th and early 17th centuries, the Crown had become increasingly willing to exercise executive power unembarrassed by statutory authority.

From 1603, James I (and after him Charles I) had insisted that they could rule without parliament and act outside the laws made by parliament.

As the notion of parliamentary democracy took shape, two questions became an increasing source of tension: did the King rule under the law; and if parliament made a law, was the King free to ignore it? The real question was: who is to be in charge. The King thought he was; and the parliament thought it was.

In 1627 Charles I was trying to raise money without the help of parliament. He demanded loans from the nobles. Sir Thomas Darnel and four other knights who had refused to make their compulsory 'loans' to the King. He had them arrested. They sought ha

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