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Kathmandu Wednesday December 19, 2001 Paush 04, 2058.
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A case for a habeas corpus act
By Narendra Bikram Shah
Habeas Corpus is an ancient common law writ
for the protection of a person illegally detained. It is universally recognised to be the
greatest and most efficacious writ to correct violations of personal freedom, a
fundamental human right that lies at the root of all democratic societies.
The origin of the writ is lost in the mist of
time, but habeas corpus is so well established that it has become an essential part of
both the customary and statute laws of all principal legal systems of the world today.
Habeas corpus is used to determine the
legality of detention of a person. It is a writ issued by a judge or court directing one
who holds another in detention to produce the body of the detainee before him or the court
for the purpose of inquiring into the legality of detention. It is also a measuring rod of
the good faith of the authorities ordering the charge-sheeting and detaining of people.
Although nowhere mentioned in Part 3 of our
Constitution, entitled Fundamental Rights - habeas corpus appears as a part of the
extraordinary powers of the Supreme Court - a simple reading of the document as a whole
makes it crystal clear that the writ is not only a matter of prerogative and convenience
of the Supreme Court but basically a matter of the fundamental right to freedom of a
person. It is held to be so sacrosanct that it cannot be suspended, as we have just seen,
even during times of emergency. It is a unique feature of our Constitution, Paragraph 2 of
Section 9 of Article 1 of the United States Constitution provides that the writ of habeas
corpus "shall not be suspended, unless when in cases of rebellion or invasion the
public safety may require it." Both the federal and state governments in the United
States have suspended habeas corpus time and again. Several times in the past, the British
government has suspended the writ through parliamentary resolutions.
Having said this, it must be admitted,
however, that habeas corpus in Nepal has failed oftener than not as an effective
instrument for the protection of the accused and the illegally detained. A few recent
cases make the point. In the wake of the Palace massacre, the editor and some management
executives of a major national daily, to wit, the Kantipur, were arrested and incarcerated
in police cells for five days without having access to a judge or court because of long
holidays. Even when they were produced before a court, the detaining authorities asked for
a few days’ additional detention in order to prepare the case for the prosecution!
During the Dashain and Tihar holidays, newspapers carried headlines telling the laughable
story of writs of habeas corpus issued by the Supreme Court not having been served to
proper authorities for lack of cooperation on the part of executive branch officials. It
used to be a common practice in the past to get the detainee out of the jurisdiction of a
particular detaining centre before the writ could be physically served. Ages ago, this
used to be a common practice in Britain also - a mean executive gimmick known in British
legal jargon as ‘jumping the gun,’ according to Lord Denning. During
Dashain-Tihar holidays, there were also reports of an accused in a corruption case having
employed habeas corpus proceedings to obtain release from detention prior to trial on the
ground, inter alia, of excessive bail set by the judge in the preliminary hearing. His
petition failed but not before rounds of bench-to-bench shifting of the case, which
consumed not inconsiderable amounts of time.
Presumption of innocence until proven guilty
and granting of reasonable bail in the absence of both clear and present danger of the
accused absconding are the maxims of law in all democracies subscribing to human rights.
In many legal systems, the doctrine of reasonable bail applies even to most serious
criminal cases.
The normal terminology used in the granting
of habeas corpus is: "Let the writ be issued immediately, answerable forthwith".
The key here is the factor of time to which scant regard seems to have been paid when
cases have actually been heard and adjudicated. In Hamlet, Shakespeare likens ‘the
law's delay’ to ‘the oppressor's wrong’, to ‘the insolence of
office’ and to the disgrace of a free person. Habeas corpus cases should be disposed
of in the spirit of urgency in which the original writ had gone forth. Ideally,
immediately should mean immediately and forthwith forthwith. Perhaps we need to have some
test cases to determine the exact meaning of the ‘mental torture’ mentioned in
our Constitution under Fundamental Rights. My own feeling in this regard is that detention
beyond 24 hours, that is, beyond the extent allowed by the Constitution under Article 14,
without the detainee having been produced before a judge, is illegal and should constitute
mental torture.
Every person longs to remain free. That is
the essence of democracy. That is the essence of human rights. In detention that freedom
is violated and, therefore, a person must at least have the right to have an expeditious
inquiry made in time to see if the detention is by due process of law. Habeas corpus is a
person’s birthright.
Habeas corpus exists in Nepal in the book.
But it is not easily accessible and it is not enforceable for lack of appropriate
procedures. What we urgently need is enabling legislation and follow-up procedural rules,
so that habeas corpus not merely remains a sacred cow of the Constitution but is made
easily available to those whose personal liberty has been violated. Habeas corpus is the
most basic of all Universal Human Rights, and must be made both easily accessible and
effectively enforceable.
A Habeas Corpus Act is needed in Nepal in the
line of a British law enacted more than three centuries ago. The Habeas Corpus Act of 1679
did not create any new rights of personal freedom, but laid down significant practical
rules for the effective assertion of the existing right of habeas corpus. The most
important feature of the law is that it authorised the judges to issue habeas corpus when
the courts are closed and provided penalties for any judge who refused to entertain the
writ without good cause and for any officer refusing to comply with it.
In Nepal, district courts or judges are not
allowed to issue habeas corpus. This is a serious limitation to personal freedom. Not all
our people can have easy access to the limited number of appellate courts in the country
and Supreme Court in the capital. This constriction on human rights must be relaxed. For
the purpose of habeas corpus, persons must have easy access to all categories of judges
even at their homes when the courts are closed. To overcome the practice of ‘jumping
the gun’, the writ should be addressed to the minister concerned, chief of police,
regional head of police, district police heads, station and substation chiefs in the
region. The writ need not be carried by court bailiffs or couriers who may not be
available during off-office hours or because of manpower shortage; it may properly be
carried and served by the law practitioner or his/her associates or agents on behalf of
the habeas corpus petitioner. A bill to these effects could be initiated in either House
of Parliament. It could originate at the National Assembly as a private member’s
bill. By no stretch of the imagination could a habeas corpus bill be determined to be a
monetary bill.
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