THE PRESS MONDAY, JULY 1, 1985. A guarantee of liberty

Press, 1 July 1985, Page 20

THE PRESS MONDAY, JULY 1, 1985. A guarantee of liberty

The decision to embody the historic writ of habeas corpus in New Zealand’s statute law is welcome and fitting. The present Government is enthusiastic about a Bill of Rights, so it is proper that it first enshrine one of the most ancient and important rights available to New Zealand citizens in their own country. The purpose of the writ is to ensure that any person detained by the State, or anyone else, is brought before a court as soon as possible, so that the legality of his or her detention can be tested. Through it, people have a remedy against unlawful detention and an important guarantee of civil liberties.

New Zealand law has relied on the procedure of the English courts. In England the writ has been a fundamental safeguard against the unlawful violation of an individual’s liberty since the thirteenth century. Its principles have been enshrined in various English statutes. By the Petition of Right, enacted in 1627, even the king’s will could not over-ride the writ and in 1679 the Habeas Corpus Act was passed. This act did not, as is often supposed, introduce any new form of process; but it secured the ancient constitutional remedy which had been set aside on occasions by weak judges and the bad faith of Governments. Over the centuries, the law was broadened to cover a variety of circumstances and was developed by historic judgments.

The safeguard of the writ applies in New Zealand law at present by virtue of the English Laws Act and the rules of the Code of Civil Procedure. The Judicature Amendment Bill that is now before Parliament attempts to produce a New Zealand version of the writ in statute law, although the procedures will continue to follow existing English law and

practice. The Minister of Justice, Mr Palmer, believes that, in the longer term, it will be an advantage to have the writ available without reference to English practice. Legal research through centuries of English laws and judgments is being done to compile a suitable provision. When this has been completed, Mr Palmer intends that the law should be amended.

Many lawyers familiar with the writ are unsure that any legislation drawn up at this distance in time and place will embody fully the rich heritage of habeas corpus in English law. Its general principles are straightforward, but many niceties have turned on curiosities of its application. The English act, for instance, provides for the only occasion when a private person may take proceedings against a judge in respect of an act done in his judicial capacity. The compilation of a habeas corpus provision for New Zealand law, to be administered without reference to its English parent and English practice, will require careful and thorough research if it is to be successful. In both Britain and New Zealand, the application of the writ now is mainly in immigration cases. Yet it has far wider applications and, in the interests of justice, these should remain available even if use is made of them only rarely. Parliament reflects the concerns of the community and, when dealing with problems the community regards as most serious, laws may be enacted that impair, if only slightly, traditional liberties. The powers of detention and search for internal concealment of drugs are one recent example. The guarantee of civil liberties provided by habeas corpus is too important in a free society to be enfeebled by an inferior imitation of the existing law.