Habeas Corpus, Imperial Rendition, and the Rule of Law

Abstract

In the decades which followed the publication of AV Dicey’s Law of the Constitution, most English lawyers felt confident that the rights and liberties of Englishmen were protected by a rule of law, which was secured through ancient common law remedies such as the writ of habeas corpus. In their view, this ensured that no political activists would be detained without trial, unless there were particular emergencies which allowed the writ’s suspension, in order to protect the very rule of law. At the same time that these arguments were being made, however, detention without trial became an increasingly routine feature of colonial governance. This article examines the attempts used by political detainees from different parts of the empire to challenge their rendition and detention, and explores what the judicial response tells us about perceptions of the rule of law in the era when Dicey’s work was establishing itself as the classic text of constitutional law. Focusing on a number of key cases, it examines how courts examined two central issues in habeas corpus cases. The first concerns the legality of the detention. In discussing this issue, courts were presented with rival approaches to the rule of law, one which was more ‘formalist’ (asking whether the legislative instrument ordering the detention had a valid pedigree derived from the sovereign legislature), and another which was more ‘substantive’ (invoking a notion of fundamental rights). The second concerns the question of control, and explores the response of the courts to challenges to the writ by defendants who argued that they no longer had control over the detainee.