Habeas corpus upholds democratic rights

Habeas corpus upholds democratic rights

You have probably seen headlines recently about detainees held by the US Government at Guantanamo Bay. The process by which people challenge their detention is usually called habeas corpus, and it exists in New Zealand as well as in many other countries. The habeas corpus process empowers people to protect a fundamental democratic right: the right to due process before the law. While “due process” can be a hard concept to define, if a government detains you, due process includes the right to have your day in court to challenge the lawfulness of your detention.

Recently the US Supreme Court upheld this fundamental right of Guantanamo Bay detainees. Before the Supreme Court’s decision, the President and Congress operated on the assumption that these detainees did not have the right to pursue the habeas corpus process in a US court, ie a court with independent lawyers and judges. The Supreme Court overruled these decisions and upheld a fundamental right that in the US is enshrined in its constitution – Guantanamo Bay detainees could apply to US federal courts so that the court could determine whether the detainee had been lawfully detained.

Habeas corpus is an old Latin phrase that, roughly translated, means “we command that you bring us the body”. Since medieval times, English kings and their judges have had the power to command jailers or any person holding another in custody to bring the detained person before the judge so that the judge could determine the lawfulness of the detention. Habeas corpus spread with British colonisation – to the Americas, to Australia, New Zealand, Fiji, India and Pakistan.

Over the centuries habeas corpus has been used to challenge the torture of citizens, the legitimacy of slavery, and in times of war to test the due process rights of prisoners of war – which is exactly what happened in the Guantanamo Bay case. Recently in Fiji and Pakistan, judges, lawyers and the media have strongly criticised their governments’ disrespect for detained peoples’ right to due process before the law.

The US Supreme Court’s decision represents an important defence of democratic values. It commented that the US Government had detained people in several different countries and then taken them to Guantanamo Bay. The “War on Terror” had led to a situation where the US Government was locking people away and denying them access to due process – clearly this needed to be addressed by the courts. I think this ruling is important and relevant even for New Zealanders because we are a nation of travellers. One day, the fundamental rights of a Guantanamo Bay detainee might parallel the fundamental rights of somebody you know. You might say that the US Supreme Court’s decision in the Guantanamo Bay case represents a health check on the state of Uncle Sam’s democracy.

Richard Anstice is a staff solicitor in Rae Nield’s office. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae and Richard can be contacted at

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