Writ Of Habeas Corpus

Human rights, a hot issue in the world, is a relatively new topic in China. The relationship between human rights protection and the improvement of rule of law became a more current affair after the two words of human rights were embodied in the Constitution of P.R. of China. Although the conception of human rights is not fresh in the western world, there are much diversified understanding and controversies on its definition. The protection of liberty of persons, one of the core content of human rights, is the basic principle of a country with rule of law. In UK and the US, the writ of habeas corpus is a major legal instrument for the judicial relief of liberty. In this context, a relatively comprehensive review of the relief and its operation in legal proceedings would be of critical importance to the construction of legal system and rule of law in China.Originated in the medieval England and further developed in the Commonwealth, including the US, the writ of habeas corpus is an archaic relief but still with vitality. While the emergence and development of the relief was attributable to the precocity of early England judicial system and the birth of common law over its peer countries in the Continent Europe, the relief was also a result of struggle and compromise between the Kings and nobles and legal professionals regarding power and rights. The statute of the Habeas Corpus 1640 and its amendment in 1679 providing the English people with protection against arbitrary and unreasonable detention, is the manifestation of English classical conception of natural rights and justice, and named by the English as " the Great Writ".With no statutory constitution in UK, the Habeas Corpus Act, together with the Magna Carta and the Petition of Rights was considered the major document of the core content of Britain constitution. Although traditionally or on primary function the writ of habeas corpus was a remedy of civil nature, it involves more critical issues of rights protection and remedy in criminal and administrative proceedings after its birth and is particularly so during the development in the federal judicial system of the US. Therefore, in countries of Anglo-American legal system, the Habeas Corpus Act is a special overriding judicial review engaged simultaneously with civil, criminal and administrative procedures. Tracking back into the development history of the system, the thesis finds that the ideas contained in the habeas corpus , i.e. why it emerges and why it appears this way, are closely linked with the mainstream values of constitutionalism, rule of law and human rights in modern western world. In other words, although the gestation and formation of the habeas corpus system is earlier than the maturation of modern constitutionalism and rule of law, the latter practically becomes the foundation for the smooth implementation of the Habeas Corpus Act. Chapter I of the thesis tries to analyze the relationship between liberty protected by the Habeas Corpus Act andconstitutionalism and rule of law in modern Anglo-American countries. The conclusion is that while constitutionalism and rule of law as the imperative but not sufficient conditions, constructing political and legal basis for the operation of Habeas Corpus Act, the tradition of valuing individual rights of the common law in Anglo-American countries, Bill of Rights and legal characteristics such as judicature-centered are also important preconditions for the substantial functioning of the Habeas Corpus Act. Understandably, there are almost no statutory habeas corpus act in countries of modern continental legal system (Japan may be seen as an exception). Nevertheless, these countries absorb and integrate the ideas and the relief of that citizens shall be free from arbitrary and unreasonable detention contained in the Writ into their constitution and procedural laws through judicial review.The United States is another representative country of the habeas corpus relief. The adaptation of the UK writ in this country shows distinctive characteristics of federal constitutional justice. As the writ had already been in force in the colonial states according to their own Constitutions prior to the formation of the US federal government, two-tiers habeas corpus systems respectively under the jurisdiction of the federal and the states, came into being with the birth of the federate. The paper focuses only on the development of the federal habeas corpus system, especially the main function as the post-verdict remedy for cases involving violation of federal constitutional rights during the trial and proceeding in state courts, which is different from its English origin, and analyzes some technical issues of the writ in demonstrating federal judicial authority and guiding and disciplining the inferior jurisdiction and administrative power operation. In addition, this thesis also briefly looks into the recent issue of indefinite detention of mass bodies in Guantanamo Bay and the hearsay secret prison in Europe by the US government since anti-terrorism war. This case would be a typical sample for the dissection of the current federal habeas corpus relief for its coverage of almost all dimensions that the writ may have, though this event is still pending for finalization.Lastly, the paper tries to investigate into the issue of how the habeas corpus, embodied in the United Nations Covenant on Civil and Political Rights (article 9) would be adapted into practice in future China, since the government did not proclaim reservation on it during signature. Based on the analysis on the writ as a constitutional right and its requirements for constitutionalism and rule of law in the first three chapters and, the consideration of the implication of habeas corpus might have on criminal justice in China for its potential further empowerment of the suspect/defendant in defending their rights if it is enforced, the author concludes that the habeas corpus could hardly be fully implemented immediately in China as it is in the UK and US today. In this context the paper recommends gradually and in a holistic way, to start with building of judicial review mechanism and then, to promote the operating of constitution in daily judicial practice and finally, to consider the formulation of a Habeas Corpus Act fit to this country.