Book Review

• Published date: 01 December 2011
• Date: 01 December 2011
• Author: CHOO Han Teck LLB (Hons) (National University of Singapore), LLM (Cambridge); Judge of the Republic of Singapore.

1 The new millennium has brought the writ of habeas corpus into the forefront of legal attention because of terrorist activities. President George Bush signed the Military Commissions Act 2006 that suspended the use of the writ in the name of national security but the Supreme Court ruled that to be unconstitutional in Boumediene v Bush1 (“Boumediene”) and expanded its decision in Fadi Al Maqaleh v Robert Gates2 to prevent the US government transferring prisoners to places like Afghanistan to avoid the Boumediene decision. The power of the “Great Writ” was thus emphasised again centuries after Halliday‘s historical account of its growth and use from 1600 to 1800, not merely as a get-out-of-jail-free card, but as the court‘s supervision of all forms of unlawful detention. What was Halliday‘s historical narrative about this writ? He wrote:3

This is a history of England and of its empire. It can and must be a history of nation and empire in order to be a history of habeas corpus, because no other part of law touched so much of life. No legal instrument dealt equally with things so public as treason and so personal as insanity. No other writ provided opportunities to think through the political threat posed by religious dissent while at the same time considering the social meaning of fathering an illegitimate child, of whore-mongering, or of sodomy. And no other writ issued simultaneously to church leaders, mayors and sheriffs, professional societies, violent husbands, and military officers. Well before 1800, jailers in imperial outposts around the globe answered the writ‘s demand. Using it judges inspected the performance of all kinds of administrators and magistrates as they collected tithes and taxes, monitored sewers and the debts of bankrupts, held prisoners of war, and imprisoned the queen‘s enemies as well as those mistakenly supposed to be her enemies.

2 The writ of habeas corpus, described as the “palladium of liberties of the subject”4 - “throughout history the central purpose of habeas corpus has been to provide the means by which the judge might find the place at which liberty and physical security could be protected simultaneously by ensuring that subjects were imprisoned only according to law”.5 The writ was used not only to release prisoners of the Crown but also wives imprisoned by their husbands, patients detained as lunatics, and also in the case of Margaret Symonds, a parishioner imprisoned for laughing in church - an extraordinary case in which the facts (why she was laughing) and the law (the basis for her...