On the heels of an an­nounce­ment of a State of Emer­gency, came a habeas cor­pus ap­pli­ca­tion to be heard ur­gent­ly be­fore the courts, where­by at­tor­neys were de­mand­ing ac­cess to their client who had been de­tained on a crim­i­nal charge.

The com­ments un­der this ar­ti­cle made it clear that the con­cept of habeas cor­pus was not wide­ly un­der­stood and it was seen as at­tor­neys sim­ply try­ing to as­sist crim­i­nals. But, a habeas cor­pus ap­pli­ca­tion can and usu­al­ly is one of great im­por­tance that pro­tects the con­sti­tu­tion­al rights of all cit­i­zens.

The sim­plest ex­pla­na­tion is that a writ of habeas cor­pus is a le­gal means of chal­leng­ing the un­law­ful de­ten­tion of an in­di­vid­ual. It is com­mon­ly used in crim­i­nal mat­ters to di­rect the state and/or the com­mis­sion­er of pris­ons and/or any such per­son to pro­duce a per­son who has been de­tained. The le­gal­i­ty of that de­ten­tion will then be ex­am­ined. In so do­ing, in­di­vid­u­als are pro­tect­ed from ar­bi­trary im­pris­on­ment.

In the British case of R v Sec­re­tary of State for the Home De­part­ment, Ex parte Cheblak (1991) it was stat­ed as fol­lows:

“Habeas cor­pus is prob­a­bly the old­est of the pre­rog­a­tive writs. Au­tho­ris­ing its is­sue in ap­pro­pri­ate cas­es is re­gard­ed by all judges as the first du­ty, be­cause we have all been brought up to be­lieve, and do be­lieve, that the lib­er­ty of the cit­i­zen un­der the law is the most fun­da­men­tal of all free­doms. Con­sis­tent­ly with this, an ap­pli­ca­tion for a writ of habeas cor­pus has vir­tu­al­ly ab­solute pri­or­i­ty over all oth­er court busi­ness.”

This ex­pla­na­tion of habeas cor­pus con­tin­ues to ring through, as it pro­tects our most fun­da­men­tal con­sti­tu­tion­al right. Sec­tion 5 of our Con­sti­tu­tion pro­vides for the pro­tec­tion of our rights and free­doms and states as fol­lows:

5. (1) Ex­cept as is oth­er­wise ex­press­ly pro­vid­ed in this Chap­ter and in sec­tion 54, no law may ab­ro­gate, abridge or in­fringe or au­tho­rise the ab­ro­ga­tion, abridge­ment or in­fringe­ment of any of the rights and free­doms here­in­be­fore recog­nised and de­clared.

(2) With­out prej­u­dice to sub­sec­tion (1), but sub­ject to this Chap­ter and to sec­tion 54, Par­lia­ment may not—

(a) au­tho­rise or ef­fect the ar­bi­trary de­ten­tion, im­pris­on­ment or ex­ile of any per­son; ...

There have been count­less in­stances where per­sons have been de­tained for sev­er­al days at a time with­out any charge be­ing laid. While we all have cer­tain prej­u­dices and there may well be a sec­tor of so­ci­ety that be­lieves if a per­son is de­tained and be­ing ques­tioned, they must be guilty, this is not al­ways true.

Per­sons can­not be de­tained in­def­i­nite­ly while their fam­i­ly is un­aware of where they are be­ing held, what the charges are and when they will be able to see them. Ap­pli­ca­tions for habeas cor­pus al­lows per­sons such as these to be pro­duced be­fore a judge, to have the ben­e­fit of their le­gal rep­re­sen­ta­tives avail­able and have their rights as cit­i­zens pro­tect­ed.

While these ap­pli­ca­tions are com­mon­ly as­so­ci­at­ed with crim­i­nal mat­ters, ap­pli­ca­tions for habeas cor­pus can be used in civ­il mat­ters and are be­com­ing a pop­u­lar le­gal mech­a­nism to pro­tect el­der­ly peo­ple.

In re­cent times, I have used this ap­pli­ca­tion on sev­er­al oc­ca­sions to as­sist el­der­ly per­sons. As the next of kin to an el­der­ly par­ent(s) or rel­a­tives who are be­ing held ei­ther un­der duress or against their will, or even due to some lack of men­tal ca­pac­i­ty, a Writ of Habeas Cor­pus can be filed be­fore the Civ­il Court de­mand­ing that the rel­a­tive be pro­duced be­fore the court.

Should the ap­pli­cants be able to pro­vide co­gent ev­i­dence that the el­der­ly rel­a­tives lack men­tal ca­pac­i­ty or are be­ing abused or ill-treat­ed, the civ­il courts can make emer­gency or­ders re­mov­ing the el­der­ly rel­a­tive from the care of the per­son who is be­ing ac­cused of wrong­do­ing.

The court can ex­er­cise its dis­cre­tion fur­ther and or­der med­icals, pro­ba­tion of­fi­cer’s re­ports and oth­er as­sess­ments deemed nec­es­sary to de­ter­mine the el­der­ly rel­a­tive’s state of mind, the care re­ceived, their med­ical con­di­tion or any oth­er mat­ters that af­fect the el­der­ly rel­a­tive.

There have been in­stances where this ap­pli­ca­tion was need­ed in civ­il mat­ters. One sce­nario was one child ad­mit­ting a par­ent in the care of a Home for the Aged and re­fus­ing to let the oth­er sib­lings know of the where­abouts of the par­ent and/or re­fus­ing to al­low them phone ac­cess to the par­ent.

Of course, as is be­com­ing the norm in our so­ci­ety, such be­hav­iour is usu­al­ly tied to land-re­lat­ed dis­putes or dis­putes on the abil­i­ty to in­her­it.

There are al­so in­stances where el­der­ly per­sons are abused by the rel­a­tives with whom they live and oth­er rel­a­tives are de­nied ac­cess and can­not have prop­er con­ver­sa­tions with them to of­fer as­sis­tance. While these are civ­il mat­ters, the court can ex­er­cise its dis­cre­tion and or­der that the el­der­ly rel­a­tive be pro­duced be­fore the court. By so do­ing, it can be de­ter­mined whether as­sis­tance is im­me­di­ate­ly re­quired.

In crim­i­nal mat­ters, it is easy to con­clude that at­tor­neys are al­ways fight­ing on the side of crim­i­nals. How­ev­er, these ap­pli­ca­tions must be heard and de­ter­mined by a judge and our judges are vest­ed with the nec­es­sary skill and ex­per­tise to eas­i­ly de­ter­mine the mer­its of such ap­pli­ca­tions.

A habeas cor­pus is a nec­es­sary and re­quired le­gal mech­a­nism which pro­tects and safe­guards our con­sti­tu­tion­al rights.

Pavi­t­ra Ramharack is head of cham­bers at Pavi­t­ra Ramharack At­tor­neys at Law and can be reached at ramharack_pavi­t­ra@out­look.com