PREVENTATIVE DETENTION -A universal legal basic: Habeas corpus – Where is the Body??

March 11, 2018
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Mar 11, 2018

The writ of habeas corpus is known as “the great and efficacious writ in all manner of illegal confinement”,[Note 1] being a remedy available to the meanest against the mightiest.

Habeas corpus (/ˈheɪbiəs ˈkɔːpəs/; Medieval Latin meaning literally “that you have the body”)[1] is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.[2]


The writ of habeas corpus is known as “the great and efficacious writ in all manner of illegal confinement”,[Note 1] being a remedy available to the meanest against the mightiest. It is a summons with the force of a court order; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus.[3] For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad (“protection of freedom”).



A fundamental human right in the “1789 Declaration of the Rights of Man” drafted by Lafayette in cooperation with Thomas Jefferson,[23] the guarantees against arbitrary detention are enshrined in the French Constitution and regulated by the Penal Code. The safeguards are equivalent to those found under the Habeas-Corpus provisions found in Germany, the United States and several Commonwealth countries. The French system of accountability prescribes severe penalties for ministers, police officers and civil and judiciary authorities who either violate or fail to enforce the law.

“Article 7 of [1789] Declaration also provides that ‘No individual may be accused, arrested, or detained except where the law so prescribes, and in accordance with the procedure it has laid down.’ … The Constitution further states that ‘No one may be arbitrarily detained. The judicial authority, guardian of individual liberty, ensures the observance of this principle under the condition specified by law.’ Its article 5 provides that everyone has the right to liberty and sets forth permissible circumstances under which people may be deprived of their liberty and procedural safeguards in case of detention. In particular, it states that ‘anyone deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.”[24]

France and the United States played a synergistic role in the international team, led by Eleanor Roosevelt, which crafted the Universal Declaration of Human Rights. The French judge and Nobel Peace Laureate René Cassin produced the first draft[25][26] and argued against arbitrary detentions. René Cassin and the French team subsequently championed the habeas corpus provisions enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms.[27]



I would hope that the concept of HABEAS CORPUS could be applied to the sad societal situation, known as PREVENTATIVE DETENTION.

President Moise could become an international hero by solving this very unfortunate situation that exists within our society.


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