Commentariat: Janet Albrechtsen knows best

Janet Albrechtsen began composing pieces for the Australian media about 15 years ago. In that time, she has never managed to write the words “habeas corpus” in any of her columns.

This was perhaps understandable back in 1992, when she was writing in the Sydney Morning Herald about how bus companies break highway safety rules (“Coach Lines Break New Safety Laws”, January 15), or about the woes of the Tokyo stock market (“Tokyo Trauma Is Likely to Continue”, January 23). But by the time she began writing for The Australian in September 2001, Albrechtsen was moving on to weightier matters like Western civilisation and how to defend it.

Nowadays, Albrechtsen regularly instructs her readers that the rule of law is a central and non-negotiable part of Western values. Given that the most fundamental guarantee of liberty under the rule of law is indisputably the right of habeas corpus, her failure to mention it is very curious.

What is going on here?

It’s true that habeas corpus is not a frequent topic of conversation on talkback radio - in fact, most people manage to get through life without coming across the term at all. In August 2001, I asked a group of university students to write down the meaning of the term. Most were unable to give any answer. One speculated wildly, and memorably, that it was a form of “alien debriefing”. Such ignorance in first-year university students is deplorable but understandable, given the wretched civic education to which they’re subjected.

Albrechtsen’s indifference to habeas corpus, however, is of a very different order. It leads her to narrow the meaning of the rule of law to a tidy convergence with her own opinions and prejudices, and to restrict the protections of the rule of law to those whom she pronounces innocent or to those whom she considers worthy.

We are no longer talking “Habeas Corpus 101” here, rather “Inanity 505”.

To put it bluntly, it is impossible to uphold the rule of law, or the liberty of the citizen under the law, without habeas corpus. For Albrechtsen’s readers and others not familiar with the term, habeas corpus is a legal practice meant to guard against unlawful detention - it mandates that a person cannot be rightfully detained without due and speedy process of the law.

In the famous United States Supeme Court case of Shaughnessy v Mezei (1953), the former US prosecutor at the Nuremberg War Crimes Trials, Justice Robert Jackson (while dissenting from the outcome of the case) succinctly set out the antiquity and force of habeas corpus:

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from Executive restraint. Under the best tradition of Anglo-American law, courts will not deny hearing to an unconvicted prisoner just because he is an alien whose keep, in legal theory, is just outside our gates.

In that case, Ignatz Mezei was a Hungarian immigrant who had lived in the USA since 1923 and had briefly gone back to Europe in 1948 to visit his dying mother. When he attempted to return to the USA, he was placed under detention at Ellis Island near New York City for undisclosed security reasons. Other countries then refused to admit him on the basis that he had been designated a security risk by the US, and after two years detention, Mezei petitioned for a writ of habeas corpus. His petition was upheld by a local court but the US Government appealed all the way to the Supreme Court, and won. (Despite this, like Habib, Mezei was quietly released a few years later.)

Justice Jackson prefaced his opinion in the case by noting, “Fortunately it still is startling, in this country, to find a person held indefinitely in Executive custody without accusation of crime or judicial trial”. Unfortunately, it is no longer startling - Australian citizens Mamdouh Habib, and David Hicks were held in a US prison in Guantánamo Bay in precisely this manner.