Law & Society

(this is a work in progress)

Whereas the aftermath of the Civil War and the Reconstruction opened up the floodgates of human rights development and accelerated America’s common law tradition into that of a modern liberal constitutional order, the pathways of liberal progress were inevitably obstructed by the American dichotomy of “civic and racial nationalism” . This conflict between whether to place priority in the advancement of civic ideals or promote majority racial superiority can be seen clearly at the aftermath of the Civil War and the Reconstruction through the enfranchisement struggles of the African-Americans and the American woman.

Civic nationalism—or the political faith based on the modern liberal ideals of “fundamental equality in all human beings”, “inalienable right to life”, etc —on the issue of African-American enfranchisement was placed into motion through the passing and ratification of the Thirteenth through Fifteenth Amendments to the Constitution. Although the passage of the aforementioned amendments did indeed lay down the fundamental framework for what would eventually become the legalization of the black vote, the immediate prevalence of civic nationalism was marred by the polarizing effects of the Reconstruction, which conversely fueled mass-support of racial nationalism across both North and the South.

Evidence of racial nationalism’s victory over civic nationalism in postbellum America could clearly be seen in the landmark Supreme Court case of Giles v. Harris , a case which questioned the legality of barring an African-American citizen’s right to vote, contended 33 years after the passage of the Fifteenth Amendment which established that one’s color or heritage could not serve as a demerit to one’s right to vote. With this guarantee in mind, defendant Jackson Giles approached the Supreme Court in the hopes of repealing a provision of the then-Alabama constitution which systematically disenfranchised black voters through levying a series of requirements (financial, educational, etc.) that were unfavorable to the African-Americans of the time, as a condition of voting. Although the Supreme Court reluctantly acknowledged the unconstitutionality of the provision, (or “not assume its validity,” as it was said) it ruled against Giles’ favor, claiming that “equity cannot take to enforce political rights” and upheld that federal government and courts at the time lacked the power to thwart and address unconstitutionality of State legislation concerning the right to vote.

The dichotomy of the civic versus the racial could thus be clearly seen in action here: whereas civic nationalism helped the passing of regulations which provided African-Americans with citizenship and the hypothetical right to vote, the prevalence of racial nationalism uprooted the notion that the average American voter should not be of any color, and prevented the aforementioned civic ideals from spreading into the greater public sphere for another half century.

Another instance of the civic/racial dichotomy in play was seen with the rise of feminism and the American woman’s right to vote. While the position of the American woman as actual citizens was never a subject of contention as it was with the African-Americans, the rise of the feminist movement challenged women to rethink their place in the public sphere. The likes of Susan Anthony and Elizabeth Stanton encouraged women to fight against a society where women were seen only as indirect members of community as “attachments to men” , and claimed it their moral duty to “[hone] skills that lay outside the realm of domesticity” .

Thus, the women of the aptly named “New Departure” movement set out to correct their unfavorable social standing, which denied them representation in the public sphere unless through their husbands, fathers, and masters and began a long process of petitioning for the right to vote. In spite of the fact that it wouldn’t be semantically accurate to say that the “racial” and civic nationalism was once again in play here—as the issue of barring the American woman’s right to vote is not one that deals with race, but with gender—the same underlying issues can be seen here as well. Despite the fact that the principles expressed in both the Constitution and the Declaration of Independence bestows all citizens with natural and inalienable rights which include the right to suffrage; that the text of the Privileges and Immunities Clause of the Fourteenth Amendment entitles all citizens with the right to vote; and the fact that African-Americans, who were once considered to belong to the lowest tier of American citizenship, were explicitly given the right to vote, the presiding “racial” nationalism effectively blinded the public sphere from acting against the iniquity under the premise that doing so was advancing the formation and bolstering of a pure, all-“American” society.

Granting that the issue of women’s suffrage/enfranchisement of the African-American was eventually resolved by the way of FDR’s New Deal and various other legislations following the Nineteenth Amendment, this dichotomy of racial and civic nationalism is still present within the American public sphere today; the definition of citizenship and what it entitles to the American fellow is still under contention, this time on the subjects of immigration and naturalization to name a few.

A popular idea in the science of politics is that the role of the government is like that of a Hobbesian Leviathan—in which all humans live in an anarchic “state of nature” where individuals are forced to engage in a bellum omnium contra omnes—and the government as the mystical, yet all-powerful creature, offers contractual security to those citizens weary and unable to fend for themselves, on the condition that they be willing to give up some of their (civil) liberties. This concept of a social contract, however, is becoming defunct in a world where market societies and nation-states take center stage, as observed by Margaret Somers who contends in her article reflecting the status quo of citizenship in 21st century that such ideas can no longer be accepted as commonplace in a world in which individuals are afforded the “rights to have rights” as a foundational right of citizenship.

The rise of modern liberalism and the civil society made way for the idea of “natural rights,” which states that all humans, regardless of their ethnicity or allegiance to government, are birthed are entitled to a basic set of rights as human beings. Somers notes that this form of “human rights”—or “Rights of Man” as she quotes/calls it—is threatened by the contractualization and commodification of citizenship , a process many governments of nation-states have been undergoing as a ways of consolidating the social contract with the needs of the modern world.

The core of Somers’ argument surrounds an Arendtian manifesto which states that human personhood is distinguished from biological life by membership in an organized political body and full citizenship in a nation-state , and that individuals can be and have been deprived of such personhood by their respective governing bodies and rendered “stateless” in cases where contractual citizenship fail to consolidate with the nation-state.

Somers provides two major examples of such cases which outlines the heterogeneity of the social contract and the nation-state politics. The first is that of post-communist Eastern Europe where ethnic groups have continually been displaced and re-placed as citizens in Eastern Bloc countries such as Hungary and Czechoslovakia together with the trend of the (majority) ethnos ruling over the demos, which Somers refers to as an unstable marriage which has historically made up the unity of the nation-state ; the second example is that of Third Reich Germany where an ethnic majority was successfully able to confer all political power into a government ruled by the majority, in an act which effectively stripped and deprived a specific ethnic minority of all rights and claims in both society and politics.

In both examples of what in terms of human rights were disastrous chapters of human history, the ethnos rule over the demos combined with a distorted form of the social contract provided an unmistakable monopoly of political rights and power to the majority in power. In the case of the Eastern Bloc, many nation-states such as Czechoslovakia and Romania experienced continuous regime change as ethnic groups continuously struggled for political dominance, which saw the political alignment (i.e. from communism to something other than communism) and official language of a few nation-states continually shift back and forth over brief intervals of time effectively stripping and re-issuing citizenship to ethnic groups every time a different ethnic majority came to power. The case of Nazi Germany harbored a more lethal outcome than that of the Eastern Bloc as the ethnic majority in power systematically stripped the minority of their citizenship and turn them into “stateless” peoples , and committed a mass genocide of that minority under the justification that “stateless” peoples who have been expelled from a political community would “no longer induce social recognition,” and thus provoke repulsion in even the most liberal of states.

A third example of the social contract’s failure to adapt to the modern nation-state hits a little closer to home in pre-19th century America, where the ethnic majority debunked an entire minority group as second-class citizens and placed them under forced servitude to the ethnic majority. Setting aside the technicalities of neither ethnic groups being indigenous to the nation-state in question and the fact that the ethical standards of slavery back then did not quite live up to those of today, the “principles of political freedom and of natural justice” were not extended to the then second-class citizens , and instead the second-class citizens were made to suffer injustices purely because of their status as the distinguishable ethnic minority; Frederick Douglass recounts in a speech given on a Fourth of July that the injustice suffered by the minorities were so great that no nation measured up to the United States who were “guilty of practices more shocking and bloody.”

Whereas the security-liberty tradeoff as introduced by the social contract is a sensible concept and is still being employed to various degrees by governments and nation-states all around the world, examples in modern political history shows that contractual citizenship does not bode well with the idea of “natural rights” and the “right to have rights” as it requires the conferring of the monopoly of violence (and through that extent political power and rights) to the government—in a world where civil society mandates that all humans are born with inalienable human rights which cannot be stripped by any form of power or governing body, the ability of being able to confer those inalienable rights to a higher form of power seems anomalous, if not contradictory to the idea itself.

何処に行くの？こんな雨の中
どんな言葉待ってるの？
今の僕じゃ追いかけられない
瞳を見つめる自信がなくて
呼びあうように出逢ったのに

雨のにおい　冷たい風　不機嫌な雲
窓際の小さなサボテン
こんな日にでも君ときたら水をあげてる
溢れるくらい水をあげてる

恋人という響きに　すべて委ねて
顧ることもなくて
君が側にいてくれることも
惜しみない愛にも慣れていたんだね

何処に行くの？こんな雨の中
どんな言葉待ってるの？
心深く濡れてしまうだろ
窓を開けて空を仰いだ
呼びあうように出逢ったのに

雨の音は途切れず聞こえている
知らん顔で黙ったサボテン
僕の事をザァザァと邪魔をしてる
君の居場所　かき消して

会いたいからって　口実に誘った映画を
はしゃいでいた日々を
どうして忘れていたんだろ
馴れあいの関係にウンザリするはずさ

僕が触れた指先にそっと
やわらかいトゲが刺さる
君が見せたささやかなサイン
見落としてしまっていたよ
今ごろ…痛い

何処に居るの？こんな雨の中
僕の気持ち見つかった
僕らきっとうまくやれるはず
ほら　薄日も射してきた
小さな花を咲かそう

On the Issue of Comfort Women

 Historian Yoshiaki YOSHIMI details the issue of “comfort women” (or 従軍慰安婦) in his article as a criticism against the conduct of the Japanese government and its officers during the stage of its so-called “imperialism” in East Asia. The following are the claims he makes against the Japanese government in his report:

1. The Japanese government authorized the use and employment of “comfort women” in the Japanese military during the war.
2. These “comfort women” were primarily recruited out of its imperial colonies, with a clear majority of them being Korean and Taiwanese.
3. Trafficking of women and children was a breach of International Law (International Arrangement and Conventions for the Suppression of Traffic in Women and Children) and the laws of war (rape was a committable war crime) to which Japan was a clear signatory of.
4. It was necessary for Japanese military to employ “comfort women” for the sake of sustaining the war.
5. The issue of “comfort women” was passively buried under wraps by the Japanese government after the war.

Prostitution is not an uncommon element to war, in fact one could even say that they go together hand in hand; there are many documented examples of history regarding government and/or military sanctioned-prostitution, with the Cavour Law of 1860 in Italy[1] after the Resurgence wars[2] being a notable example. Military prostitution, in fact, was not considered a war crime or a human rights violation prior to recent years (and developments in global human rights) and there have been many reports and accusations of military prostitution against the United States army in Korea, the Philippines, Okinawa, etc.

Setting the legality of military prostitution aside, the issue at stake for Japan has never been against the employment of prostitutes by the government, but rather of whether such actions taken by the Japanese government were consistent with the contemporary laws of war and international human rights regulations at the time. The biggest of the accused violations in contention is that the Japanese recruitment of “comfort women” constituted a form of slavery (as per 1926 Slavery Convention of the League of Nations) and/or forced labor (as per the Forced Labor Convention of the ILO). The Japanese government, given that the accusations against it listed in the article are all in bona fide, would also be guilty of trafficking women and children if the accounts of under-21 year old women in the army were to be believed.

Yoshimi however, is not overly disdainful on the general policy of military prostitution; Yoshimi clearly identifies that the Japanese government at the time clearly felt a need to provide “relief” to soldiers during the course of the their long “war of aggression” and even lauds the government’s systemization of the process in its “type two” comfort houses through which wide spread of venereal disease throughout the ranks were effectively put into check. Yoshimi also comments on the fact that the Japanese government saw the recruitment of “comfort nurses” from its then imperial colonies preferable over recruiting those from its forty-seven prefectures, since the government was not restricted to the recruitment of prostitutes in the then-colonies of Korea and Taiwan due to the exclusionary clause in the convention against trafficking women and children—recruiting women who weren’t prostitutes as “comfort women” into the military, at least in the minds of the Japanese government at the time, would serve as an efficient way of providing “relief” to its soldiers without “weakening their fighting spirit” through contracting sexually transmitted diseases.

Yoshimi concludes his report by stating that the Japanese government did issue a formal apology for its policies regarding “comfort women” during the war and acknowledged the fact that the war-government was indeed involved in recruiting, funding, and managing the “comfort women” effort, as detailed by Prime Minister Miyazawa during his 1992 visit to Korea. Prime Minister Murayama apologized again in 1995[3], but echoed Miyazawa’s statements, alleging that the government merely sanctioned and regulated the comfort houses and did not play an active role in their creation and proliferation. Most recently in 2007, a much-lauded attempt by Prime Minister Abe in apologizing for the human rights violation once again curtailed that the government did not intend or sanction the forceful recruitment of women as “comfort women”, and also correctly identified that the term i’anfu was not one officially coined during the war, but one popularized by the media and the press, most notoriously by one Senda Kakou in his book Ju’gun I’anfu published in 1973.

In conclusion, the case of the “comfort women” can be seen as yet another government-sanctioned mass-breach of international law/human rights processed under the guise of a euphemism; although it should be noted on a personal note that when compared to others which have adorned the halls of atrocities caused under the guise of euphemisms such as “ethnic cleansings” or torture of “illegal enemy combatants,” the sanctioning of “comfort women” doesn’t seem to be as unnatural or unforgivable as contemporary media and historians have made it out to be.

 

---

[1] See Gibson, “Prostitution and the state in Italy, 1860-1915”, Ohio State University Press, 1999

[2] 1814 – 1861

[3] See Murayama’s statement given on the occasion of the 50^th anniversary of the war’s end

Abstract
This research aims to validate the evolution of habeas corpus in the way it manifested in the common law tradition. This paper will document how habeas evolved from a simple summons to court to an extraordinary writ of liberty which allows a prisoner to be acquitted in the event of a wrongful committal; this paper also aims to justify the various ways in which the Great Writ has been used in American case law, specifically in regards to the subject of its suspension and its extraterritorial ambit.

The History of the Great Writ
Though Historians generally credit the birth of the Extraordinary Writ to the signing of the Magna Carta in 1215, the idea that a man should not be unreasonably detained and be tried before a panel of arbiters before being committed to gaol was a familiar thought that had already existed for many centuries prior to its existence. The most romanticized examples of these include the Athenian courts which arbitrated the trial of Socrates[1]; the Sumerian courts which closely followed the oft lauded Hammurabi codex; and the ecclesiastical courts of King Solomon[2] whose wisdom is admired by both scholars of law and religion alike.

Setting ancient thoughts aside for later consideration, it is safe to say that the writ of habeas corpus was written into existence not through a single moment of Archimedean genius, but in recognizing that the rights provided by the writ do and should inherently exist in a just legal system; the writ of habeas (or at least the ideas sustaining it) evolved into life from a collective necessity and will of the people, much akin to the way biological organisms evolve to better adapt to their changing habitats. In order to better understand this evolution it is necessary to first examine the history and the background issues which necessitated it, which shall be my topic of discussion for the following paragraphs.

The events leading up to the Magna Carta perhaps served as an eerie historical precedent to the theme of Hobbes’ Leviathan; King John reigned over a war-torn England from the likes of his predecessor Richard I’s ventures into the holy land and his vendettas against France—which eventually ended up in French invasion of then-English Normandy—the papacy, and his barons.[3] On top of the circumstantial predicaments inherited by King John, his ruthlessness and disregard for traditional justice during his absolutist reign[4] stirred up anxiety and discontent in his subjects whose grievances against the king were addressed in a great charter of freedoms which came to be known as the Magna Carta.

The aim of the Magna Carta was to firmly redress the formerly established relationship between king and subject[5] where the king would not stand as the absolute Schmittian sovereign at all times, but rather be bound by law and legal procedures like any other subject under the crown.[6] The Magna Carta afforded all subjects under the crown with protection from unreasonable abuse of sovereign power and laid down the spiritual foundations for many civil libertarian ideals to come, but for the sake of our interest, we shall only concern ourselves with articles 38 through 40 of the Great Charter.

The three articles which make up the habeas portion of the Great Charter strike a remarkable resemblance to the Constitutional Bill of Rights—the 5^th and 7^th amendments in particular—in that they both emphasize the protection of a subject’s legal integrity in court. Article 38 of the Great Charter[7] states that:

“In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it,”

thereby protecting the accused of self-incrimination in court; Article 39 claims that:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement [sic] of his equals or by the law of the land,”

guarding subjects against arbitrary abuse of sovereign power in the process of justice and advocating trial by jury; and finally, Article 40 of the Great Charter guarantees one with a speedy trial under law by holding that

“To no one will we sell, to no one deny or delay right or justice.”

Thus the passage (and subsequent repeal and redrafting) of these three articles into common law echoed the age-old tradition as held by the courts of Athens, Hammurabi, and Solomon by confirming the inherent necessity for the right of the accused to be able to defend themselves in court without unreasonable interference from the sovereign. The Great Writ was therefore evolved in this first stage from being merely a collective necessity and will, to that of written law.

Though many, as aforementioned, credit the Magna Carta with the introduction of the Great Writ to common law, the Magna Carta in reality only served as the spiritual foundation of the writ. The Great Charter itself was not formally accepted into English law until ten years after King John’s ratification of the charter at Runnymede.[8] As an effect, the formal application of the writ was seen to be in ambiguous grounds prior to the establishment of the common law courts[9] (which was also in part, established by the Great Charter.[10])

The idea of habeas corpus cum causa or appropriately translated “having the body with cause” was a familiar concept in civil procedure which most likely predated articles 38-40 of the Magna Carta.[11] Habeas corpus in its early form was but a simple command which ordered to have the defendant to an action brought physically before the court.[12] It is noted that this early form of habeas was based loosely on the authority of three pre-existing medieval writs[13]: the writ de homine replegiando (“personal replevy”), which (by medieval application only) was the actual order which was issued in bailing a person out of prison; the writ of mainprize, which was issued to sheriffs or corresponding authorities to secure a person’s appearance in court; and finally the writ de odio et atia (“from hatred and ill will”), which was a command issued to the sheriff to inquire whether a prisoner committed under charges of homicide was done so with justified causes or “from hatred and ill will.”

Given such precedents, early habeas at face value did not embrace the idea of producing the body with the cause of his detention, and records of early application show that the purpose of the process—which usually took place prior to actual detention—was to order an officer to bring in the defendant, regardless to the cause of detention.[14] Habeas in its early form, therefore, was not a ‘remedy of general application’ as it is seen now, but a special procedure used under special circumstances. Due to the fact that the three medieval writs previously mentioned could not be applied in matters concerning the crown, and the proposed writ of habeas of the day was merely akin to a summation of those three writs, (with the added factor of bringing the cause and matter of imprisonment before the court) habeas corpus was still ineffective in safeguarding the individual from arbitrary detention and arrest.

The application of habeas did evolve further in the fourteenth and fifteenth century with the King’s Bench’s efforts of centralizing the courts, where the writ was directed by the central courts against the local inferior courts’ jurisdiction so to “channel the litigation” toward the centralized administration[15]. The central court achieved this by exercising the habeas-given authority to summon the accused to the court of law against the inferior courts, thereby poaching the defendant from the inferior court under the claims that the defendant could show some sort of special connection or merit of having his case heard there. From this battle of the courts was inadvertently born the idea of associating habeas corpus with requiring the cause to be shown for the imprisonment or detention of a person, as well as testing the capacity of the tribunal which had ordered the detention of the defendant.[16]

By the late sixteenth and the early seventeenth century however, the core function of habeas changed from executive procurement and/or detention of subjects to that of challenging executive commitments[17]. Such examples were found in Searche’s Case[18], where the Queen’s Bench was forced to discharge a prisoner who was detained under a criminal charge that the Queen had designated as a surety to receive protection from arrest; and in Howel’s Case,[19] where a prisoner’s release was demanded to the Queen’s Bench under claims that there was insufficient cause for arrest and detainment. In response to the inferior courts’ passive insubordination to the Crown Courts was passed the Resolution of 1592, which gave an ambiguous response to the situation by stating on one hand that:

“[P]ersons [charged with high treason] before committed may not be delivered by any of her Courts without due trial [sic] by law, and Judgement of acquittal, had,”

while maintaining that the sovereign maintains the right of discretion in the detaining and committal of persons by advocating that:

“[T]he Judges may award the Queen’s Writs [of habeas] to bring the bodies of [those committed with high treason] before then, and if upon return thereof the causes of their commitment be certified to the Judges as it ought to be, then the Judges in the cases before ought not to deliver hum, but to remand the prisoner to the place from whence he came.”

The sovereign abuse of the writ of habeas, and judicial reluctance to stand up against the crown finally made it clear that the power to commit prisoners by the state was clearly being abused, and that eventually came around to becoming the biggest issue to be settled on the question of habeas corpus. No single act has been celebrated more in the history of common law after the Magna Carta than that of The Five Knights’ Case[20] which resulted in the drafting of the Petition of Right, which established the principle that the sovereign could not imprison under the authority of per special mandatum domine regis (“under special command of the King”) without showing cause.

The Five Knights’ Case was submitted to the Kings Bench for habeas review by Sir Thomas Darnel along with four other knights, who were arrested by the order of the King for their refusal to comply with a forced loan order issued by King Charles I, who through the forced loans schemed to raise revenue without Parliamentary sanction. The five knights challenged their detention on the grounds that the forced loans order did not have Parliamentary sanction and was therefore, illegitimate, and also under Article 39 of the Magna Carta which states that no free man is to be imprisoned except by the lawful judgment of his equals, or by the law of the land.

The Court however, refused to bail the prisoners, relying on the Resolution of 1592 and the ambiguity in the meaning of the phrase “law of the land” as written in the Magna Carta as a justification of such a verdict. Chief Justice Hyde stated that “if a man be committed by the commandment of the king, he is not to be delivered by a habeas corpus in this court.”[21] The judges also recognized that a prisoner could not be delivered on habeas corpus without having been tried, and that he could only be tried if the cause were expressed,[22] thus opening doors for further discussion of the verdict by Parliament.

Subsequent with the Five Knights’ verdict came the passage of the Petition of Rights, which was drafted in hopes to redress the issues of arbitrary taxation, forced loans, arbitrary imprisonment, and most importantly, that of the habeas question as raised by the Five Knight’s Case:

“[Y]our subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your Majesty’s writs of habeas corpus… no cause was certified, but that they were detained by your Majesty’s special command… without being charged with anything to which they might make answer according to the law.[23]”

Although the Petition by its own right restored the normative process of the writ, and in the words of Lord Coke “claimed rights implicitly conferred by the ancient laws, not so much as enact new ones,” the fact that it was in nature a “petition” as opposed to being a “statute” or a “law” made its application difficult and sovereign compliance to it a near-impossible feat. Although Charles I initially agreed to the terms of the Petition, quoting it to be a “confirmation of the ancient liberties and rights of the subjects,”[24] his nonchalant attitude toward the Petition was soon made clear. The king, in further efforts to finance his efforts during the English Civil War imposed the ship money tax, a tax which could only be enacted during wartime, contrary to Clauses I and II of the Petition of Right which spoke out against arbitrary taxation. The integrity of the Petition lay further in shambles as Charles further committed prisoners without making returns to the writ of habeas, as was the case in Freeman’s Case.[25]

Little solace was to be had with the passing of the Habeas Corpus Act 1640—which abolished the arbitrary concilliar courts that were set up by Charles I[26] and provided that anyone imprisoned by the King or Council should have his habeas corpus and be brought before the court without delay[27]—as Charles I was executed and replaced by Oliver Cromwell, during whose time as Lord Protector a strict judicial deference was observed regarding the subject of Habeas Corpus.

But relief would come at last after Cromwell’s death and the ascension of Charles II to the throne as the Parliament, in its long-awaited reconvention, passed the Habeas Corpus Act of 1679, which established a place for the writ in the constitution, and in the popular conception as a fundamental guarantee of liberty.[28] The main issues that the Act of 1679 dealt with were concerning the loopholes within the serving of the writ, those especially to do with detention and bailing (or the lack thereof) of prisoners:

“[I]f any person or persons, subjects of this realm, shall be committed to any prison or in custody of any officer or officers whatsoever, for any criminal or supposed criminal matter, the said person shall not be removed from the said prison and custody… unless it be by habeas corpus or some other legal writ,”[29]

in light of a practice held up during the time of the protectorate where prisoners committed by the executive would be moved from one prison to another or even to a prison outside the jurisdiction of the crown to avoid releasing the prisoner.

The Act also made available the issuance of the writ in any court of law at any time[30]; made illegal the illegal imprisonment of prisoners beyond the seas and outside the realm of the Crown[31]; and also outlawed double jeopardy.[32] The Habeas Act of 1679 therefore restored the normative order of the writ of habeas as it existed prior to the Resolution of 1592 and permanently established the principle that the efficacy of habeas corpus as a part of due process should not be thwarted[33].

And thus the writ of Habeas Corpus was melded and evolved into its recognized form today.

Modern Applications of the Great Writ: Executive Suspension
The idea that absolute sovereign power be vested unto one individual who is best equipped to lead a state out of crisis in times of emergency is not an unfamiliar concept to the political history of any state. Since the time of the Roman dictatorship, normative public order has been suspended on the basis of its right to self-preservation—perhaps as proof that it is indeed superior over the validity of the legal norm as Carl Schmitt contends[34]—as a way of sparing the state from becoming a victim in the bellum omnium contra omnes that tends to accompany the hysteria of a state of emergency.

With regards to the Great Writ, the idea that it could be ‘suspended’ and its privilege taken away from the general public during a time of emergency was never a fading thought throughout the history of its formation. Recall back to the events surrounding the Magna Carta where King John anachronically suspended the writ of habeas during his travails against France and the papacy; or back to those surrounding the Petition of Right, where Charles I also inadvertently suspended the writ to force those who wouldn’t pay taxes (albeit illegal) into submission. The bottom line here is that the idea that normative due process could be suspended by the executive during times of perceived need had existed even prior to the formation of habeas, and the fact that the extraordinary writ encompasses everything that needs to take place for normative due process to take place, it has if nothing else, made it easier for the executive to supersede the laws of the state.

The two main issues that cannot be left out in discussing the suspension of habeas corpus are that of liberty and exigency. The idea of liberty comes into play from the classical debate of whether liberty should be sacrificed for the sake of security, (or in the curious case of Benjamin Franklin, whether having such considerations merit having either of those things) or whether personal liberty is something that should be preserved at all costs. The case of exigency is contingent on that of liberty, chiefly in the manner of deciding what the special considerations that come into play in the event that liberty should be sacrificed for the sake of security, and how those specific considerations will affect the running of the courts.

The most important legal consideration which came into play during the formation of the Great Writ was that of the on-and-again off-again power of the Crown to commit a subject without formally charging with a viable crime. In the previously mentioned case of the Five Knights, the courts held that no justification was needed other than the King’s “special command” for committal despite heavy dissent from Parliament. By affirming that the King’s “special command” was circumstantially enough to commit a possibly innocent subject into gaol, the Courts thus ascertained that the King had a right to control discretion[35], or more broadly put, the King and the King alone had the power to decide the merits of the case.

The King‘s victory was short-lived, as passage of the Petition of Right abolished the executive’s power to detain as held in the Five Knight’s Case. Through the extension of admitting that the writ of habeas corpus should remain in effect at all times, the executive was also deprived of all discretionary powers in ordering the arrest, leaving only the will of the Parliament capable in exercising emergency powers in the face of crisis.

Unlike the case of the United States Constitution, where the power to suspend the writ of habeas under bona fides is implicitly reserved to the executive and the legislative branches through in its 1^st and 2^nd articles, “suspending” the writ of habeas in the American sense was quite a tricky feat to accomplish, nonetheless one which required some form of Parliamentary sanction.

The first method employed by Parliament of suspending the Great Writ in response to grave public danger was witnessed with the Habeas Corpus Suspension Acts of 1745, 1746, and 1747, in the face of impending Civil War. Unlike the traditional sense of “suspension” however, the suspension acts neither delayed nor halted the process of the habeas writ, but simply claimed that those arrested for or under suspicion of high treason could not be bailed or tried unless by the order of the executive council for a period of one year. The “suspension” in statutory form did not suspend the actual write, but prevented the issuance of a writ discharging a person detained under said charges and/or suspicions of high treason.[36]

The dawn of the nineteenth and the twentieth centuries saw the fall of imperial rule and the rise of nation-states and with it, a world in war. The threat of total war necessitated more extreme measures to meet and preserve the state from crisis, and with such necessity, the Great Writ evolved once again. The significant aspect of the twentieth century habeas is found in the proverbial phrase inter arma enim silent leges; Parliament for the first time delegated the executive powers which enabled it to define the limits of its own powers.

The very first enactment which reflected this shift of power was the Defense of the Realm Act of 1914, which delegated to the executive in council “power… to issue regulations for securing the public safety and the defense of the realm.”[37] Although the act itself made no specific reference to internment, the executive was given the power to intern those deemed a threat against the “public safety or the defence [sic] of the Realm” through the powers newly delegated to the executive.

The sudden gain of executive discretionary power was appealed in front of the House of Lords in the case of R. v. Halliday,[38] where Arthur Zadig, a naturalized British citizen of German descent, appealed his internment after being detained under suspicion of being of hostile origins and associations. The defendant argued his case on the grounds that the power to intern was not explicitly specified under the Defense of the Realm Act, thus rendering the internment scheme ultra vires and ultimately making his internment illegal.

The House of Lords responded by claiming that the Defense of the Realm Act intended to empower the executive “for paramount objects of State, to invade by legislative enactment that liberty in certain states of fact.”[39] The House of Lords thus maintained that internment had been adopted for the purpose of providing for the safety of the realm, and the powers in the Defense of the Realm Act had not been superseded.

In a daunting statement which clearly displays the extent judicial deference in the face of exigent crisis, Lord Atkinson gave the following statement in his concurrence to the decision:

“However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement.”[40]

Modern Applications of the Great Writ: The Extraterritorial Ambit of Habeas Corpus

(a) The Case of the Commonwealth

Although no questions need to be raised in the applicability of the Great Writ within the territories under sovereign

jurisdiction to the sovereign state issuing the writ, special considerations must be made in determining whether the writ

actually has an extraterritorial ambit, that is, whether the writ of habeas corpus can actually reach outside the dominion of

the sovereign.

In the early stages of habeas’ evolution there was little need for writ to actually extend outside the British Isles, as the territorial boundaries of England did not extend far beyond that of Scotland and Ireland. This was greatly changed in the late 17^th and early 18^th centuries, however, as the Commonwealth was established and the United Kingdom grew to become the biggest imperial power in the world, with its territories extending from the American colonies to the entire continent of Australia.

Whereas sufficient reason and necessity for an extraterritorial habeas was now found, actually awarding the Great Writ with an extraterritorial ambit would require much effort, especially since common law does not “recognize the effectiveness of judicial process outside the territorial jurisdiction of the court.”[41] Although this renders issuing the writ to a foreign country all but impossible, the fact that the writ does not depend on the jurisdiction of the court but upon the authority of the sovereign over his subjects, this does in effect allow for the writ to be issued to those extraterritorial areas which are subject to the dominion of the Crown.

The Habeas Corpus Acts of 1679 and 1816 both certify this claim in that the writ of habeas can be issued outside the immediate territory of England so long as the territory in question is within the dominion of the Crown. Article XI of the 1679 Acts states that:

“[H]abeas corpus according to the true intent and meaning of this act, may be directed and run into any county palatine, the cinque-ports, or other privileged places within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and the islands of Jersey or Guernsey; any law or usage to the contrary notwithstanding.”

while Article V of the Act of 1816 extends this extraterritorial reach to the Isle of Man.

Following the embarrassing happenings of Ex parte Anderson—where the Queen’s Bench issued a habeas writ to a prisoner in Upper Canada only to discover that the Upper Canada Court of Common Pleas had already liberated Anderson by the time the writ had arrived—Parliament passed the Habeas Corpus Act of 1862 which both repealed the extraterritorial provisions as provided by the Acts of 1679 and 1816, while once again reaffirming the extraterritorial ambit of the Great writ:

“No writ of habeas corpus shall issue out of England, by authority of any judge or justice therein, into any colony or foreign dominion of the Crown where Her Majesty has a lawfully established court or courts of justice having authority to grant and issue the said writ, and to ensure the due execution thereof throughout such colony or dominion.”

whereas the writ explicitly states that those colonies or foreign dominions of the Crown with lawfully established courts capable of issuing and executing the writ of habeas are not within the bounds of the Queen’s Bench, it gives no mention to those dominions of the Crown incapable of issuing and executing the writ.

In light of the potentially troublesome loopholes the Act could ascertain, the scope of the Act has since been limited in two ways. The judicial decision in Ex parte Brown[42] ruled that phrase ‘foreign dominion’ as found in the Act of 1862 does not include those territories “brought within the realm by virtue of feudal subjection rather than overseas conquest or cession”; the decision in Ex parte Sekgome[43] further added that word ‘dominion’ includes only “territorial dominions,” disregarding protectorates or areas in which the Crown “exercises dominion only in the sense of control and power.” The Sekgome decision also maintained that the issuance of the English writ of habeas will not be precluded in those areas where the local law “temporarily does not permit the exercise of habeas corpus jurisdiction,” thus further confirming the possibility of the writ to run beyond the immediate territory of the Crown courts.

The most recent amendment to the Act of 1862 was established in the case of Ex parte Mwenya[44] which through the extension of permitting the issuance of the writ to Southern Rhodesia, enabled the writ to run to protectorates of the Crown. The argument for and against this matter were certainly not unheard of, especially since the Act of 1862 had previously allowed for the writ to run to the protectorate. The court was therefore, forced to make a decision outside of the realm of territorial classification and instead provide an apology on the grounds of sovereignty, to which it supplied the explanation that:

“where the nature of control is indistinguishable in effect from that exercised in a colony or in a territory acquired by conquest, the absence of a formal assumption of sovereignty does not preclude the exercise of the prerogative upon which the writ of habeas corpus depends,[45]”

thereby concluding that territorial labels (such as “protectorate” in this case) do not, by themselves define the extent of control exercised in the area. One final provision of the verdict was that the applicant of the writ in such an area need not be a British subject, as the theory guarding the running of habeas corpus outside of England is due to the sovereign’s right to inquire into the legality of a restraint over the subject.[46] The court finally ruled that where formal sovereignty is not required, there should be no difficulties where subjection to the Crown is carried out de facto as opposed to de jure

(b) The Case of Guantanamo, Cuba

The case of issuing the Great writ to detained “enemy combatants” at the U.S. naval base of Guantanamo in the

sovereign state of Cuba was tricky for a few reasons.

First and foremost was the issue of territoriality. Guantanamo Bay was considered an irregularity in terms of all the

territories governed or placed under American jurisdiction due to the fact that the status of forces agreement for the

region was unclear: according to the 1903 Land Lease Agreement, the United States recognized “the continuance of the

ultimate sovereignty of the Republic of Cuba” over the area but maintained that it would “exercise complete

jurisdiction,”[47] whereas the decision reached in the Supreme Court case of Ahrens v. Clark and through that

extension, U.S. statutory law[48], stated that the writs of habeas corpus could only be issued by the courts to subjects

“within their respective jurisdictions.”

Second came the issue of subjecthood. The prisoners detained at the Guantanamo Naval Base were considered

“enemy combatants,” a new category of prisoners which categorized them as neither citizens of the United States nor

prisoners of war covered under international law. Although the U.S. statutory law was clear in that nonresidential aliens,

captured and detained abroad, are not entitled to the writ of habeas corpus in a court of the United States,[49] this

ambiguous labeling of detained persons was also accompanied by the ambiguous nature of the war: technically, a “war

on terror” could have an indefinite application, spanning out to indefinite subjects in an indefinite amount of time.

The final consideration which made the issuance of the writ difficult was the historical scope of executive discretion which

was afforded to the American executive during a state of perceived emergency. Unlike their English counterparts,

American executives enjoyed plenary powers of discretion during wartime mostly in bona fides, with the legislative arm

usually ratifying their actions ex post facto. Given the overwhelmingly favorable record that the executive had set for

itself in the matters of habeas corpus v. executive power during a state of emergency, it was unlikely for the Great writ

trump the powers of the executive.

As bleak as its chances looked, a remedy for the lack of habeas corpus was eventually found through the two landmark

cases of Hamdi v. Rumsfeld[50] and Boumediene v. Bush.[51] Although Hamdi did not address all the issues

concerning the “enemy combatant” listed above, it paved the way in guaranteeing that such provisions would soon be

given consideration due to the fact that Hamdi addressed the issue that no citizen should anytime be “imprisoned or

otherwise detained by the United States except pursuant to an Act of Congress”[52] and as an effect established a

statutory basis for the issuance of habeas in what was considered extraterritorial lands, thus for the first time confirming

the extraterritorial ambit of the writ.

Whereas the question of territoriality was resolved through Hamdi, the issue of subjecthood was a matter of repeated

discussion in the subsequent case of Hamdan v. Rumsfeld. The issue presented in the case of Hamdan v. Rumsfeld

was the legality of the military tribunals which were setup to exercise executive discretion in handling the detainees at the

aftermath of the Hamdi decision. The Hamdan verdict ruled that “absent express statutory provision to the contrary,

information used to convict a person of a crime must be disclosed to him,”[53] thus claiming that the executive does not

reserve the right suspend due process for the cause of arbitrary detention of persons during a time of war.

The last issue to be resolved was that of subjecthood. The issue of subjecthood was seemingly one which could not be

deterred from the executive as stare decisis on the matter was very clear: the cases of Johnson v. Eisentrager and Ex

parte Quirin both argued that foreign nationals captured outside the sovereign territory of the United States could not be

tried in American territorial courts. As the factors regarding subjecthood in Boumediene v. Bush was figuratively

identical to that of Johnson v. Eisentrager, it was clear that a verdict could not be reached through directly addressing

the issue of subjecthood. The court did however, find a necessitating issue with regards to time, as they found that the

detainees at Guantanamo Bay, including defendant Boumediene, were interned without any due process or habeas relief

for an unreasonable duration of time. With regards to the issue of time, common law habeas states that “a person may

apply [for the writ] while in the custody of a constable, immediately upon being arrested, and need not wait until he is

incarcerated,”[54] thus bringing to light that something that is afforded instantly to a citizen should not be denied

indefinitely to a non-citizen solely under the virtue that he is not under the subjecthood of the sovereign.

Thus as seen in the case of Guantanamo, the Great Writ was able to rise to the occasion and further evolve once again,

this time warranted by the necessity of time as a critical factor in determining the issuance of the writ; although it can be

pointed out that the verdicts reached in the cases of Ex parte Brown, Ex parte Sekgome, and Ex parte Mwenye

would have held sufficient grounds under the English law of habeas corpus[55] to run the writ to Guantanamo, the

extraordinary writ was able to evolve past such obstacles, and once again adorning itself as a core element in the due

process of law.

Conclusion

Thus given the travails and the journey of the Great Writ so far, it can be contended that the writ of habeas, like the

constitution, is a living, breathing law which is constantly changing and adapting to new ideals and necessities. Being born

from the most extraordinary circumstance, it is not surprising that it has evolved into a linguistically-obfuscated form of a

zoon politikon, which endows its petitioners with the most extraordinary liberties in times of necessity. The writ of

habeas corpus has evolved into the most important, if not the most discussed debate of due process, as due process has

come to depend so heavily on its functionality due to its ability to adapt and metamorphosize to better fit necessary

situations. Whether the Great Writ, for generations to come, will remain the champion and the defender against the

Leviathan that is the state cannot be determined, but it is certain that for as long as the Great Writ remains in effect

personal liberties and freedoms will be safeguarded from the arbitrary infringements by the State.