One of the consequences of 9/11 has been the acceleration of the drift of the United States towards being a police state, with restricted freedoms and increased government surveillance and interference.
Much of the rest of the world, including English-speaking countries which inherited hundreds of years of English common law, is moving in the same direction in the interest of security.
Last September, the U.S. Congress passed the Military Commissions Act (MCA) of 2006, which was quickly signed into law by President Bush. The act restricts habeas corpus rights, allowing the government to continue holding prisoners at Guantanamo indefinitely with no access to a fair hearing in court.
The impact of the habeas corpus restrictions in the new Military Commission Act, one petition to restore habeas corpus stated, “Goes far beyond the walls of Guantanamo prison. The law allows the government to arrest any non-citizen – including permanent residents in the United States – and hold them indefinitely without charge and with no access to an attorney or a fair hearing.” There is a growing movement, which includes both Democratic and Republican senators, to reverse the MCA.
We have had similar experiences with states of emergency and the Suppression of Crime Act.
The U.S. Supreme Court has previously asserted that habeas corpus “is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”
Despite the Latin, which simply means “you have the body”, habeas corpus is a straightforward legal principle against unlawful detention and imprisonment.
In the chapter on ‘The Right to Personal Freedom’ in his classic book The Law of the Constitution, A.V. Dicey says, “the essence of the whole transaction is that the court can by the writ of habeas corpus cause any person who is imprisoned to be actually brought before the court and obtain knowledge of the reason why he is imprisoned; and then having him before the court, either then and there set him free or else see that he is dealt with in whatever way the law requires, as for example, brought speedily to trial. The writ can be issued on the application either of the prisoner himself or of any person on his behalf.”
Habeas corpus runs back at least 700 years in English common law but was encoded in statute law in 1679 and revised in 1816 to accommodate non-criminal cases.
On the Jamaican scene, many persons languish in custody without a determination being made by a court as to the lawfulness of the police action or without a speedy trial to determine their guilt or innocence, which, in effect, means that their right to personal freedom has been suspended indefinitely pretty much like that of the war on terror prisoners in U.S. custody at Guantanamo Bay.
As Dicey put it, “The object of [a prisoner’s] detention is to ensure his being brought to trial.” The prisoner has a right to a speedy trial, and to bail if there is reasonable surety that he will appear for his trial.
There is a sort of unintended conspiracy between the Jamaican police and the courts to defy the spirit, if not the letter, of habeas corpus.
Habeas corpus offers great protection to the personal liberty of both citizen and foreigner within the jurisdiction.
While suspension may be temporarily necessary under the most serious and threatening public emergency, the law and its intentions must be preserved.
Constitutionally guaranteed freedoms and rights, and charters of rights, are meaningless if there are no mechanisms for protecting those rights and freedoms.
Martin Henry is a communication specialist.
By Martin Henry, From the Jamaica Gleaner