Authored By: Arham Asif
Middlesex University Dubai
INTRODUCTION
It is 1861. John Merryman has just been detained at Fort McHenry in Baltimore Harbour for having destroyed railroad bridges that were in use by the Union Troops. With no access to a judiciary or any legal authority, the accused is at the mercy of the ones who have arrested him. The court issues the writ of habeas corpus, but the military denies him the privilege as the President had the writ suspended, having stated issues with national security.1 With this singular act, the executive has challenged a fundamental right given to the common man that protects him from unlawful detention. Under the umbrella of national security, an ancient right -present ever since the birth of the Magna Carta and even before- has just been brushed aside, and the accused is held captive in the land of the free.
This highlights one of the many cases that have come forward to challenge The Great Writ, and since then has raised the question, ‘Is necessity a good explanation for the retraction of fundamental human rights?’ Centuries have passed, but the Habeas Corpus today faces newfound threats and challenges, ranging from emergency legislations, secret detentions, and the never-ending surveillance of the state.
This article explores how a common man’s basic remedy against imprisonment is being silently demolished under the hoax of a free man’s state, and that protecting and defending it is no more a moral duty, but a fight against injustice as a whole.
THE ANCIENT WRIT: A RIGHT OR A PRIVILEGE?
‘Habeas Corpus ad subjiciendum’, translated to ‘you may have the body for the purpose of subjecting him or her’, is an age-old right that compels the state to justify a person’s detention. It means to subject a person to an examination before a legal authority so as to avoid unlawful detention of a person.
With its feet planted in the Magna Carta,2 The habeas corpus, more commonly referred to as the great writ, has walked a journey spanning centuries. It was defined in the Magna Carta as a prevention of a free man’s detention without lawful judgement. Initially implemented in order to bring an accused to court for the purpose of a trial, the habeas corpus was still subjected to an unclear and improper definition in common law. The Normans had used it in order to place local disputes at royal courts, along with the writ later being used by England against the king in a power struggle.3
A question arose from all the attention the principle had been garnering. Did this ancient writ constitute a right or a privilege? The answer came about in the face of inclusion. The writ did not remain a single law passed in a single country to convey a single message; it became a cornerstone for the recognition of the liberty of a common man.
In the fruitful year of 1679, England passed ‘The Habeas Corpus Act’4 which preceded an earlier Habeas Corpus Act of 1940.5 Many other acts were passed in the UK parliament relating to the great writ but the law passed in 1679 is still known as the landmark law. This set the initial brick of its recognition as a formal protection of man against injustice by the state.
The principle of The Great Writ was further integrated into the ECHR as article 5 of the treaty, with its emphasis in subsections 3 and 4 of the same article, essentially guaranteeing man of his right to a formal court proceeding following detention.6
In 1868, the US Constitution upheld the principle as the 14th Amendment to the Constitution, stating that no state shall deprive any person of their freedom without a proper legal proceeding.7
Another example of the recognition of the Habeas Corpus principle is the integration of the principle in the Indian Constitution. Article 21 of the Indian Constitution states that no person shall be deprived of their liberty without due legal procedure.8
Therefore, a privilege or a right? Looking at given evidence, along with the undying history of this ancient idea, it may seem as a right and not a privilege, but Article 1 of the U.S constitution9talks of it as the ‘privilege of the writ of habeas corpus’, and hence, the question remains, and with the way the writ has been treated since the beginning, it is becoming dauntingly clear that the ancient writ, if still exercised, has a future that may not be a testament to the ideology of ‘for the people, by the people, and of the people’.
THREATS TO HUMAN LIBERTY: A STUDY OF THE CHALLENGES TO THE GREAT WRIT
It is a principle established since time immemorial that, in a law-abiding nation, the power to create laws is possessed by the legislature alone, and no power on Earth can undo this authority. Yet in a seemingly ironic way, the executive, created solely to serve the people and grant them their rights, has begun to meddle in the law-making aspects of a nation. The separation of powers has always been argued to keep intact the liberty of a society and to ensure that power is not concentrated in the hands of a few. But when the executives take on the roles of the legislature as they deem fit, do all these ideas of liberty, equality, and the equal distribution of powers seemingly vanish? When a nation chooses its leader, it does so in the hopes that the leader follows the basic principles written down in a nation’s constitution. No man elects to be suppressed. However, with the threats that The Great Writ faces in today’s world and the world before the so-called modern one, it’s provoking to wonder if man is capable of trusting his leaders with protecting his liberty and right to life.
The challenges to habeas corpus have been far too many to discuss in this article, but the examples of a landmark few shall show how the writ that merely protects a free human from unjust detention is not just being challenged, it is being silently eroded- and the catch is, this erosion always has an explanation, one that no man may question.
The Great Writ is a right given to man for centuries, but in many cases, a law can be passed, and the right is suddenly suspended. During the American Civil War, President Lincoln had caught himself in a net that seemed to close in the more he tried to let himself out of it. With strong challenges to the writ of habeas corpus, in cases such as Ex Parte Merryman10President Lincoln defended his actions, going as far as to call them constitutional and necessary, with the argument that the writ ought to be suspended during threats to national security and in cases of rebellion. To make matters more official, an act was passed, termed the ‘Habeas Corpus Suspension Act (1863)’11 This act gave the President of the United States of America the power to exercise the suspension of Habeas Corpus until the end of the Civil War. Furthermore, Article 1, Section 9 of the US Constitution 12 has clauses 2 and 3, known famously as the suspension clauses, which state that the writ of habeas corpus may not be suspended unless in cases of rebellion or invasion, the public safety may require. Ex Parte Milligan13 was a case where it was held that suspension of the writ was lawful during war times.
In modern times, May 2025 was the month when the talk of suspending the age-old writ came back in full swing. The Trump administration reported that it had been looking at actively suspending the writ14 so as to detain illegal immigrants and asylum seekers without trial.
These are just a few examples of the ways in which the writ is challenged. The essence of these challenges is a mirror to the state in which society is. Society is promised the retraction of fundamental human rights, guised under the promises of better security, all time safety, and a more powerful nation. When a President sees a threat to the nation and deems it right to step onto a pedestal to declare the freedom of man to be taken away, is it protection or submission that is being upheld? The separation of the executive, legislature, and the judiciary was the main way to uphold human liberty but when the law maker gives the power to a leader to decide when the written rules should be upheld and how, as seen in Ex parte Merryman and the passing of the suspension bill, the powers seem to blend in a way that not many can decipher. A day in a democratic state to another under martial rule, can a right be said to exist at all if it can be set aside whenever it becomes convenient? It seems as though the laws set in stone are unclear and underdefined for the main purpose of confusing the ones that question it. A right to the writ of habeas corpus abolished as the nation faces ‘invasion’ and ‘rebellion’, yet the definition of these terms scarcely makes any sense when they are used at one point in a case of civil war and uproar, as done by Abraham Lincoln, and another in relation to stopping immigration and asylum seekers from being given a proper legal procedure post detention, as being looked at by the Trump administration. In such cases, the definition of these terms becomes what the executive wishes, raising the question of whether or not this right has any meaning at all if it can be allotted different ones as per convenience.
NECESSITY FOR PROTECTION
William Blackstone in Commentaries on the laws of England,15 states how imprisonment of a man is lawful if done using due process of law or warranted by a person authorised to arrest. He then goes on to state that a man who is imprisoned has the right to apply for the writ of Habeas Corpus if necessary and when the reason for his detention is unknown or unlawful.
A person may argue for the reform of habeas corpus, but such an ask fails to take into account the necessity of its existence. One of the main reasons for its necessity is to ensure the rule of law and the separation of powers, especially during times of nationwide emergencies.16
The remedy of habeas corpus becomes all the more important when one takes into account the substantial amount of illegal torture and abuse prisoners face when in confinement. If denied the due legal procedures and denied the writ of habeas corpus, the horrid acts may not just continue, but amplify as the abuse of power would see no end in being placed in the hands of the executive.
The case, Boumediene v Bush,17 showcases the importance of The Great Writ. Here, the accused had claimed that he suffered torture during his detention period prior to being granted the writ of habeas corpus by the US courts. One can only imagine what might have happened and what further tortures the accused may have had to face had the right to the writ been denied.
Furthermore, the writ serves as one of the greatest examples of freedom and personal liberty that a human being has in a nation. The writ being suspended could lead to individual rights being taken away fairly easily. With the possibility of people being detained for protesting, exercising the right of free speech, and merely existing within the premises of what the constitution allows, the writ being suspended means imprisonment without lawfulness. Therefore, the writ not only protects a person from being detained unlawfully, but is also indirectly a means of the protection of other fundamental rights a human being has in society.18
The writ of habeas corpus is a lot like a fire alarm; its ringing may sound useless when in times of normality, but if disabled or ignored, its necessity peaks through when it’s too late to escape the fire. Therefore, in order to ensure that no man’s freedom is at stake for unjust reasons, it is high time the writ of habeas corpus is protected and strengthened.
WAYS OF PROTECTION
As argued above, the writ of Habeas corpus clearly faces a major threat of suspension and absolute erosion in the modern day. But, all hope may not be lost. There are ways in which collectively a nation may figure out ways to keep this right available and necessary in today’s time. The most important method would be to educate the people about how important it is to ensure the availability of this right for the protection of their liberty and other fundamental rights that they have.
The issue of the right being taken away in times of emergency is another method that erases the importance of the writ. But, there can be ways around this issue if the core problem is taken into account and the change is not just temporary but constitutional. For example, the constitution of South Africa states that the right to challenge unlawful detention is present at all times, even during emergencies.19 There is a strict system of non-derogable rights that exists within the framework, rights which can not be taken away under any circumstances.
With this law written and laid out in the constitution, a citizen may be assured that his right to freedom and life is not hindered upon the calling of the executive or any other person. These are only a few of the many ways in which the habeas corpus may be protected and strengthened in order to maintain liberty and dignity of the people while also keeping the power of the executive in check.
CONCLUSION
In conclusion, The Great Writ has existed for centuries and almost all significant philosophers recognise it as a right that is fundamental to the protection of human rights and liberty. If a man can be arrested at any time for any reason and not be given a chance to appear before a jury, justice in no logical mind can be said to have been upheld in such a state.
The availability of the writ of habeas corpus is not just a way to follow an ancient statement but a crucial testament to the true liberty of a citizen in a democratic nation, and the erosion of this right is proof that power today rests in the hands of a few and that its separation is a mere falsity that plays the role of a curtain in a play where the protagonist is always murdered.
As argued in this article, all the threats and challenges presented to the writ in the United States of America are warnings that make more noise than any speech ever given publicly liberty seldom dies loudly; it is almost always smothered silently and buried with no trace of it having ever existed.
BIBLOGRAPHY
PRIMARY RESOURCES
Legislation & constitutional instruments:
-Constitution of the Republic of South Africa 1996, s 37(5).
-Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) art 5.
-Indian Constitution art 1.
-The Habeas Corpus Act 1640 (16 Cha 1 c 10).
-The Habeas Corpus Act 1679 (31 Cha 2 c 2).
-The Habeas Corpus Suspension Act 12 Stat 755 (1863).
-US Constitution art I § 9.
-US Constitution amend XIV.
Cases
– Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487) -Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)
-Boumediene v. Bush, 553 U.S. 723 (2008).
SECONDARY RESOURCES
-Blackstone W, Commentaries on the Laws of England, vol 1 (1765).
-Farrell B R, ‘The Importance of Effective International Habeas Corpus Guarantees’ in B R Farrell (ed), Habeas Corpus in International Law (Cambridge University Press 2016).
-Galston W A, ‘Trump’s Habeas Corpus Threat: No President, Even Lincoln, Has Ever Suspended the Writ Without Congress’ Wall Street Journal (New York, 2025).
-Wright C A, ‘Habeas Corpus: Its History and Its Future’ (1983) 81 Michigan Law Review 802.
Online Materials
-‘The 1215 Magna Carta: Clause 39’, The Magna Carta Project, trans H Summerson and others http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39 accessed 19 July 2025.
1 Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487).
2‘The 1215 Magna Carta: Clause 39’, The Magna Carta Project, trans H Summerson and others http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39 accessed 19 July 2025.
3 Charles A. Wright, Habeas Corpus: Its History and Its Future, MICH. L. REV. 802 (1983) 81. 4 The Habeas Corpus Act 1679 (31 Cha. 2. c. 2).
5 The Habeas Corpus Act 1640 (16 Cha. 1. c. 10).
6 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 5.
7 U.S. Const. amend. XIV.
8 Indian Constitution. art. 1.
9 U.S. Const. art. I, § 9.
10 Ibid (n1).
11 The Habeas Corpus Suspension Act, 12 Stat. 755 (1863)
12 Ibid (n9).
13 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)
14 W A Galston, ‘Trump’s Habeas Corpus Threat: No President, Even Lincoln, Has Ever Suspended the Writ Without Congress’ Wall Street Journal (New York, 2025).
15 William Blackstone, Commentaries on the Laws of England, vol 1 (1765) 83.
16 B R Farrell, ‘The Importance of Effective International Habeas Corpus Guarantees’ in B R Farrell (ed), Habeas Corpus in International Law (Cambridge University Press 2016) 185.
17Boumediene v. Bush, 553 U.S. 723 (2008).
18 Ibid (178).
19 Constitution of the Republic of South Africa, 1996, s 37(5).
