Research On The Writ Of Habeas Corpus From The Main Perspective Of Procedural Justice

It has been 30 years, since we carried on the reform and open policy. Our sense of human rights has gained the remarkable enhancement. However the realistic condition is not perfect, especially the suspect's personal freedom. To make the protection of the suspect's personal freedom better, we should improve the current institution or plant new institutions. The Writ of Habeas Corpus is an successful system protecting the suspect's personal freedom. After researching it, I proposed several points that we can take into our system to protect the suspect's personal freedom.The Writ of Habeas Corpus is an ancient writ coming from Britain. At that time, it was just a tool to show the king's power, and make sure the litigation procedure's going-on smoothly, rather than to protect the citizen's personal rights. In 14th century, its function was accidentally changed, because of the combat of jurisdiction between courts. The 39th and 40th chapters of Magna Charta are the reality stimulation of the personal freedom.1679 habeas corpus is a procedural stimulation of personal freedom. In 1640, a Habeas Corpus Act was promulgated, however it did not bring effect into play, due to the judge's fear of king's power, inconvenient transportation, and the lack of accountability system.1679 Habeas Corpus Act made a great improvement in the above aspects. The laws that were passed in 1816 and 1960,expanded the applicable scope of Writ of Habeas Corpus from the British citizens to all the people that was protected by Great Britain, including foreign nationals under British judicial administration.These days, the Writ of Habeas Corpus has been disseminated into many countries. According to my sketchy statistics, about 60 countries have stipulated the system. Moreover it was also used in many international conventions, such as ICCPR,ECHR and ACHR. During its dissemination process, Its function, procedure and applicable scope have evolved a lot. For instance, USA expanded it into the procedure after conviction; India made it suitable in inhuman treatment; Macao fined the unreasonable applicant.In Britain, anyone whose freedom is limited can apply habeas corpus to the Queen's Bench Division of Supreme Court, and others also can apply for him or her. But in this condition, a witness statement or affidavit by the person restrained is needed. On the habeas corpus writ, it needs to be written"by what time the restrained person should be taken to the court", and the reason why he or she is detained is also needed. If the reason is not persuasive, the prisoner should be let out. The court listens to the dispute of two sides through summary procedure. And according to the hearing, the judge will make the decision if the prisoner should be released or returned to the custody. Before 1850, the court could also make the decision of bail. Later, this function was replaced by simply equipped office that did not allowed taking the prisoner to the court. The promulgation of"1791 court law"finished the function of habeas corpus writ's requesting speedy trail. In the ordinary circumstances, basing on the same reason, the one in custody is not allowed to apply continuously, and also will not be arrested once again. Meanwhile, as to the behaviours that's against habeas corpus writ, the corresponding punitive measure was also stimulated. When the country is in emergency, habeas corpus writ will be stopped.The freedom is British dominant character. The liberalism deep in people's hearts urged the struggle between the aristocrat, parliamentary and the king, which directly brought 1679 habeas corpus 's passing. And the thought of managing mainly by law made it possible for habeas corpus writ to implement smoothly. Any system's going-on needs a certain environment. Habeas corpus writ requests the judge's neutrality and authority. I believe, at present, the sense of rights has already been firmed widely among our citizens in China. The policy of managing mainly by law has been gradually penetrated. In this case, if the legal jurisdiction is able to obtain its independent status, through above- below judicature organizational reform, the foundation of habeas corpus writ's implement will be satisfied. At that time, It will be easier for China to introduce habeas corpus writ. In my opinion, procedure justice, protecting the minority's rights and the balance theory express the inner value of habeas corpus. First, it makes sure that the procedure of protecting the right's of the one in custody is able to start promptly. Although, right procedure does not necessarily bring right result, the chance of improper procedure bringing right result is much slighter. Next, the one in custody must be minority. Giving them prompt trail shows the state's concern to minority, which can avoid modern democratic system's malpractice, majority's tyranny. Meanwhile, it also show the equality of constitution. Giving them penalty has manifested the equality between the criminals and other people. Because the reason of distinguish is right. Giving all the perpetrators the same prompt trail, has manifested the equality between them. Finally, giving the one in custody the right to request habeas corpus, has manifested the balance between state power and citizen's right. It shows that the country treats the criminals as subject, a real lawsuit subject, rather than a pure object. In lawsuit precess, they obtain another right to defense their freedom.According to the present situation in our country, I do not agree to introduce habeas corpus. Even so, it still has got something that we can learn from, in order to improve the present system of personal freedom in our country. A good system must have its procedure that can go on, without the procedure, any system is only idle talk, only if it is just theory. The respect to law, especially from officials at basic level, is the final safeguard which keeps it moving.I believe, as long as"certain stimulation about avoiding correcting over-time detaining during procuratorial work"is strictly carried on, the formal over-time detaining can be avoided. China does not lack systems, but the systems that include good procedure. Speaking from managing mainly by law, China does not lack systems too, but the respect to law. Regarding over-time detaining in reality, the above institution can do nothing, but only has to depend on controlling the power of prolonging the investigation detaining deadline. And jurisdiction is the best choice, which relies on the judicature organizational reform.