Habeas corpus

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THIS COLUMN HAS PREVIOUSLY noted the “right to due process”, which is a fundamental right and an essential check on arbitrary rule (see China Business Law Journal, volume 6, issue 5: Magna Carta). An important principle that forms part of the right to due process is that no person should be subjected to arbitrary arrest or detention. This is reflected in international conventions, such as article 9(1) of the International Convention on Civil and Political Rights (ICCPR). It is also reflected in the laws of many jurisdictions, including article 37 of the law of the Constitution of the People’s Republic of China and article 28 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China.

This column examines a related principle, namely, that any person who is detained should have recourse to a process by which the lawfulness of the detention can be reviewed by a court, and the person is released if the detention is found to be unlawful. This principle is reflected in article 9(4) of the ICCPR, which provides as follows:

Anyone who is deprived of his [or her] liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his [or her] detention and order his [or her] release if the detention is not lawful.

This column first considers the above principle as it has been developed in common law jurisdictions pursuant to the “writ of habeas corpus”. It then considers the position in mainland China.

Writ of habeas corpus in common law jurisdictions

The word “writ” is an old English word that described an order issued by a senior court to exercise control over inferior courts and public authorities. The words habeas corpus originally came from the Latin wording that was used when an application was made to a court for an order that an authority detaining a person “have the body” (habeas corpus) brought before the court to determine whether the person’s detention was lawful.

If the court found that the authority was acting beyond its authority in detaining the person, the court would order that the person be released. Any person in detention, or somebody acting on their behalf, could apply to the court for such an order. The writ of habeas corpus came to be known as the “Great Writ” due to its importance in safeguarding the liberty of citizens.

The writ of habeas corpus predated the Magna Carta. However, as one Supreme Court justice in the US has written: “The writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.”

In modern times, many of the rules governing the writ of habeas corpus are now confirmed or regulated by statute. In the Hong Kong Special Administrative Region, for example, article 5(4) of the Bill of Rights Ordinance contains the same provision as in article 9(4) of the ICCPR.

It should be noted that, as a procedural remedy, an order for habeas corpus can only be made if the detention is unlawful, such as where there was a procedural error when the decision to detain a person was made, or the authority that detained the person did not have legal authority to do so. The order is not available to challenge a lawful sentence of imprisonment following conviction by a court.

An early case in Australia that involved an application for a writ of habeas corpus was the 1906 case of Ah Sheung v Lindberg. This case concerned a Chinese man called Ah Sheung, who had originally come to the then-colony of Victoria in 1881, and had obtained citizenship by naturalisation in 1883. In 1901, Sheung visited China, where he remained for about five years. After returning to the now state of Victoria in 1906 on a steamship, Ah Sheung was detained on the basis that he was a “prohibited immigrant” under the legislation governing immigration.

The reason why Ah Sheung was considered to be a prohibited immigrant was that he had failed to pass the notorious dictation test. Under this test, which was primarily designed to restrict Chinese immigration under the old “White Australia” policy, a person was treated as a “prohibited immigrant” if the person failed to write down a passage of 50 words in a European language as dictated by an officer.

It was decided by the Supreme Court of Victoria, and by the High Court of Australia on appeal, that Ah Sheung was not a prohibited immigrant and should not have been detained. This was because Ah Sheung had become a citizen by naturalisation in 1883, and was therefore not an “immigrant” within the meaning of the legislation governing immigration.

The Supreme Court of Victoria stated that “in its ordinary meaning immigration implies leaving an old home in one country to settle in a new home in another country”. The court further stated that legislation should not be construed to allow a state to exclude one of its citizens.

For a discussion about the historical efforts in Australia to repeal legislation that discriminated against the Chinese, see China Business Law Journal, volume 11, issue 1: Chinese legal pioneers.

The position in mainland China

The Criminal Procedure Law of the People’s Republic of China, as amended in 2018, provides for the People’s Procuratorate to review the “necessity” of detention as follows:

Article 95

After a criminal suspect or defendant is arrested, the People’s Procuratorate should still review the necessity of detention. For those who do not need to be detained further, it should recommend release or modification of the compulsory measures. The relevant authority shall notify the People’s Procuratorate of how it has handled the situation within 10 days.

The ICCPR has not yet been ratified and incorporated into domestic law in mainland China. As a result, there is no process by which a PRC court can review the lawfulness of the detention of a person.

Some scholars are of the view that the power to review detention should be exercised exclusively by the People’s Courts to ensure fairness and impartiality – a view that is consistent with article 9(4) of the ICCPR.

Andrew Godwin 2015
Andrew Godwin

Andrew Godwin is currently a member of a World Bank team that is advising a central bank in Asia on potential reforms to its mandate. He previously practised as a foreign lawyer in Shanghai (1996-2006) before returning to his alma mater, Melbourne Law School in Australia, to teach and research law (2006-2021). Andrew is currently Principal Fellow (Honorary) at the Asian Law Centre, Melbourne Law School, and a consultant to various organisations, including Linklaters, the Australian Law Reform Commission and the World Bank.

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