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MAGNA CARTA Myth & Law Part II


I ended Part I of the first blog on this subject by saying that in the next blog I will examine in some details the surviving three Clauses of the original Magna Carta and the writ of Habeas Corpus which requires the jailer holding a person to bring that person before the court to show his authority for detaining the person.
I will start by asking this question: ‘In light of the 11th September 2001, attack on America that focused on New York Twin Towers, America’s response based on purported ‘Axis of Evil’ knee jerk reaction that saw invasion of Afghanistan, Second Iraq War that toppled Saddam Hussein and his government, policy of pre-emptive strikes, the resulting chaos in the Middle East, the rise of Islamic State (ISIS) in Iraq and Syria, terrorists threat and bombings in European capitals coupled with legislative responses aimed at dealing with the perceived threat does the principle of Human Rights the likes of that enshrined the writ of Habeas Corpus still carry any legal weight or meaning in a Court of Law?
In light of the more often than not ‘knee jerk’ rush for legislative enactments after terrorist attacks (the last tragically carried out in Paris on Friday 13th November 2015), that are meant to prevent further terrorist attacks the question of one’s liberties and freedom, the likes of those guaranteed and enshrined in the Constitution of most Western Countries, does a Writ of Habeas Corpus, or a Writ based on Bill of Rights, carry any legal weight and achieve its intended purpose of bringing an individual held in custody before the Court and for the holder of that individual to justify the reason for holding the said individual? Regrettably I think not. 
Before a Court of Law, if counsel representing the person in custody asks the magistrate to have the incarcerator state the reason for holding his client or the charges, if any, to be laid against his client’? A magistrate could well respond: ‘under the legislation which your client is held I do not have to give you any reason and do not ask this question again’! A Magistrate could also say he, or she will not be able to tell how long the client will be in custody before any charges, if any, will be laid! If Counsel were to respond by uttering the words: ‘Guantanamo Bay’ he or she will most likely be in contempt of Court!
It is understandable that a country can invoke or enact State of Emergency legislation's that temporarily sets aside the enforceability of enshrined legislative acts based on the principle of Habeas Corpus. An example of this was made by Britain at the outbreak of World War I in 1914, ‘The ‘Defence of the Realm Act’, entitling the Home Secretary to legally hold residents of German descent. This Act was reinstated in 1939 at the outbreak of World War II to detain descendants of German background and fascist (Italian sympathizers). Prior to the advent of the 21st century, more specifically 11th September 2001, neither the threat of terror, nor acts of terror, had ever been a reason for enactments having not only the potential, but the reality of depriving any individual’ personal freedom without excuse, legal or otherwise. Or has, or is, the 21st century world after the so called 9/11 attack
on America, is officially, or unofficially, in a state of perpetual war? More specifically, does America’ so-called ‘War on Terror’ and supporting enactments aimed at preventing terrorism equates to, or should be treated as, the equivalent of declaration of world war, World War III? If so, who is so called ‘friend’, ‘neutral’, or ‘enemy’ or may be everyone is to be treated as suspect? Is a pre-emptive strike that kills and maims countless number of civilian in a country like Afghanistan, Iraq, or Syria legal and could be legally justified on the grounds or reducing the likelihood of terror?
Should the passage of Bill allowing Britain to carry bombing raids in Iraq and Syria on so-called Islamic State equate to official reinstatement of ‘Defence of the Realm Act’ that Britain passed in 1914 and reinstated in 1939 after the outbreaks of World War I and World War II respectively? 
Is it possible that another barbaric terrorist attack could result in the mass arrest and internment of residents, and non residents, of Arabic background born in say USA, Britain, and France?
Just a thought, and a frightening thought, if I may say so!

Coming back to the Writ of Habeas Corpus, and its relevance, if any, in the 21st century, let us assume that an individual had been arrested and incarcerated say for a traffic offence, under the Motor Vehicles Act. That person officially pleads not guilty, wishes to defend the charges and wants to apply for bail till the authorities are ready to proceed with the hearing. Is that individual’s chance of being granted bail under Habeas Corpus, the Bails Act, or any other relevant legislation still the same or has the pendulum swung too far against the grant of bail or grant of bail on onerous and unreasonable terms? Regardless of any statistics that may exist to the contrary, one cannot help concluding that grant of bail for any accused in custody had become more difficult, and sentences dished out on findings of guilt had been in the upper range.

It is very hard to fathom this somewhat subtle degradation of respect for human rights. The fact, and reality that substantial numbers of Guantanamo Bay detainees that had been dehumanized and held in barbaric incarceration for some 15 years without any charge; and if any country, including Congo Brazzaville, is willing to accept all or some of them. If finally to be released without any charge to their identity, being, and whatever is left of their humanity, there will always be a scar on America’s scale of justice. The pertinent question that would be on everyone’s lips, including hardcore gun lovers in America, is whether America had been safer place as a result of Guantanamo Bay.

This post first appeared on Memoirs Of A Barrister, please read the originial post: here

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MAGNA CARTA Myth & Law Part II


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