Writ Of Habeas Corpus Analysis

Origin of habeas corpus:

The writ of habeas corpus is an old writ which is very important in the English common law system. It contains the essence of democracy that no one is above the law even the king has to justify its subjects if he has illegally detain any person. This writ is in conformity with the fundamental rights of people and court will issue an order commanding that by which authority the person is illegally detained and they had to provide a justification in front of the court for the confinement. The word habeas corpus is originally a Latin word which means production of body and the court shall order the person who detain an innocent person to produce him the person detained in front of the court. It is important to note that

The application in different countries vary in nature. In UK due to the statutory protections the applicability is diminished. In Pakistan the writ of habeas corpus is incorporated in the article 199 of the constitution of the Islamic republic of Pakistan which gives high courts the authority to hear and dispose of writs.in japan due to the sanctions of WW2 imposed by United Nations this writ was inserted into the Japanese constitution. The case of Canada is different from the other countries, the human rights communities criticized Canada a lot that they can’t just abduct people in the name of national security, and they even had to amend the statutes related to the writs due to the pressure groups and international

The said petitioner was a former member of National Assembly from Kohat District, NWFP who filed a Constitution Petition under Article 199 of the Constitution challenging illegal arrest and detention of some 57 foreigners mainly from Arab countries and 145 Pakistani citizens mainly from tribal areas. This writ petition was dismissed by Peshawar High Court mainly on the grounds, inter alia, that the petitioner was not an aggrieved party. Strangely, the Supreme Court of Pakistan also adopted the same view and dismissed the appeal against the decision of the Peshawar High Court, inter alia, on the grounds that the petitioner was not an aggrieved party and that such petition does not amount to a public interest litigation. (PLD 2004 SC 482). This decision was given contrary to the settled law in respect of “aggrieved person” in the matters of writ of habeas corpus and ignoring the rule laid down by the Supreme Court of Pakistan in the case of Begum Nusrat Bhutto (PLD 1977 SC 657). In the said report a bench of Supreme Court consisting of nine (9) Judges held that “………it is true that in the case before us the petitioner is not alleging any contravention of her own Fundamental Rights, but she has moved the present petition in two capacities, namely,