Page 8: Habeas corpus and the European Convention

Why do you suppose Rahmatullah’s lawyers sought habeas corpus, instead of bringing a claim based on Art 5 under the Human Rights Act?

• Habeas corpus is a process that yields a specific and very effective remedy: an order to release a person who is detained unlawfully. In a claim under the Human Rights Act, Rahmatullah might have obtained a declaration that his right under Art 5 of the Convention had been violated (either in the decision to hand him over to U.S. custody, or in the U.K. government’s dealings with the U.S.). in the claim for habeas corpus, he got an order that required the government to do something –i.e., to seek Rahmatullah’s return from the U.S.

The limits of arguments of comity

Page 11: The ‘tyrant’s plea’ was an argument of comity i.e., an argument that judicial interference with the executive would damage the constitutional function of the executive. If courts ought to act with comity toward the executive, what was wrong with that argument?

• If the judges merely stop the Commissioners from acting corruptly, or extremely unreasonably, would this be a breach of comity? Consider whether judicial interference to this limited extent would have prevented the Commissioners of Sewers from acting for the salvation of the King’s lands and people.
• Can you think of a type of judicial interference with the work of the executive branch that would be a breach of comity?
• What if the judges replaced the Commissioners’ judgment on all questions of proportionality with their own, out of a concern for the rights of particular landowners? Would this be a breach of comity?