Latin: a court order that a specific person being detained be promptly produced, by the detaining authority, before a judge for a hearing to decide whether the detention is lawful.
A challenge made by a prisoner in regards to the legality of his or her detention.
While traditionally a criminal law remedy, it has been used in immigration, child custody, mental health and, more recently, in national or homeland security.
The predominant feature of martial law is the suspension of habeas corpus, effectively denying persons detained from having their detention challenged quickly and by an independent court or judge.
¶5(4) of the 1950 European Convention on Human Rights states:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. "
¶10 of the Canadian Charter of Rights and Freedoms is as follows:
"Everyone has the right on arrest or detention to be informed promptly of the reasons therefor; to retain and instruct counsel without delay and to be informed of that right; and to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful."
A distinctive feature of martial law is the suspension of this remedy.
¶9 of the US Constitution reads:
"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."
Habeas corpus was one of the concessions the British Monarch made in the Magna Carta and has stood as a basic individual right against arbitrary arrest and imprisonment.
In 1679, the British Parliament sought to address the abuse of delay in having a habeas corpus claim brought before a judge, thereby defeating the purpose of it in any event. The preamble of the Habeas Corpus Act read:
"Whereas great delays have been used by sheriffs, gaolers and other officers, to whose custody, any of the King's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus to them directed, by standing out an alias and pluries habeas corpus, and sometimes more, and by other shifts to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the King's subjects have been and hereafter may be long detained in prison, in such cases where by law they are bailable, to their great charges and vexation."
References:
• The 1679 Habeas Corpus Act is published at fordham.edu/halsall/mod/1679habeascorp.html
• The European Convention on Human Rights is at conventions.coe.int/treaty/en/Treaties/Html/005.htm