Magna Carta: the original charter

A.J. Nicholson, Gleaner Writer

This is the second of a five-part series on Jamaica's new Charter of Rights.

From where did bills or charters of rights spring? What is their place in the societal governance order? What is their contribution to the development of a people? What really are they meant to be? For answers to these questions and an examination of several other issues, we must turn to what is perhaps Britain's most enduring gift to mankind: Magna Carta.

Recognised as the Great Charter of English Political and Civil Liberties, Magna Carta is widely viewed as one of the most important legal documents in the history of democracy. Coming into being almost 800 years ago in 1215, its chapters contain many of the core features of a society that today adheres to the rule of law.

The principles enshrined in the great charter have, from time to time, surfaced in different parts of the world, including countries that have never been part of the British Empire or have had a common-law system. The principles are universal. The granting of Magna Carta marked the road to individual freedom, to parliamentary democracy and to the supremacy of the law.

An article published in The Commonwealth Lawyer, journal of the Commonwealth Law Association, in 2005 reproduced an edited version of a lecture delivered by Lord Harry Woolf, then chief justice of England and Wales, titled 'Magna Carta: a Precedent for Constitutional Change'.

He states: "Magna Carta is a symbol of the values of the common law. (It) is also remarkable because it is such a historic statement of the fundamental principles of the rule of law." It is on those principles that Jamaica's new Charter of Rights and Freedoms is structured.

How did these principles come to be conceptualised? Let Lord Woolf tell the game-changing story. Seven hundred and ninety years ago (he was speaking in 2005), John, the King of England, was having a little local difficulty with his barons. His attempts to defend his extensive dominions across the English Channel, including Normandy and a considerable proportion of western France, had been a disaster.

Reprisals

This was despite the demands that he had made on his subjects. The taxes that he had imposed were extortionate. There had been ruthless reprisals against defectors. The administration of justice for which he was responsible could, with generosity, be described as capricious.

Instead of depending on the traditional establishment for his advisers and confidants, John looked to "new men", who wielded immense power. Today, no doubt, according to Lord Woolf, the media would describe them as "John's cronies".

In the world of politics, he says, little changes.

John's barons became increasingly disaffected. They knew John needed their support for further military adventure in France. Not to lose an opportunity, in January 1215, the barons collectively decided upon industrial action.

They insisted that, as a condition of their support, John execute a charter for their liberties as a safeguard against further arbitrary behaviour on the part of the king.

In order to press home their cause, the barons took up arms against the king. In May 1215, they captured London, and England was on the brink of civil war. Instead of allowing this to happen, both sides of the dispute behaved in an exemplary manner. If they had been litigants before our courts, according to the former chief justice, they would have received an unqualified commendation for deciding to rely on alternative dispute resolution or, as lawyers say today, ADR, as an alternative to battle to the death.

On June 10, 1215, they met at Runnymede and, in the meadow, compromised their differences and agreed terms, which were outlined in the 'Articles of the Barons' to which the king's great seal was attached on June 15, 1215. The immediate result was that the barons renewed their oath of allegiance, and once more the king had their support.

You can settle disputes but there is no guarantee that the settlement will be honoured. John sought to renege on the charter, in collusion with Pope Innocent III, who condemned the settlement as having been exacted by extortion and declared it was of no validity.

John borrowed money to hire foreign troops and rallied his forces to subdue the nobles. Fortunately for us and history, Lord Woolf observes, John was prevented by ill health from pursuing his plans, and his early death in October 1216 put an end to his double dealing. The charter survived and this, for those times, was a remarkable result.

But this does not explain why, almost 800 years later, the document, which in due course became known as the Magna Carta, is so important. There are two explanations for the importance of the charter - its contents and its influence.

The contents of the charter fully justified its title; it was by any standards a remarkable document for its time. The charter goes far beyond what was needed to resolve the immediate dispute between John and his barons. While it did address real, contemporary and practical problems of the time, it was not merely concerned with the immediate dispute. It was intended to govern the relations between "King and all freemen" - between those who govern and those who are governed.

As can be imagined, in view of the background to the charter, pride of place is given to restrictions on the king's ability to abuse his position by exacting extortionate taxes. Such restrictions have a resonance to this day. There were also provisions for the protection of property of heirs, particularly those under age.

Such provisions are remarkable for a document negotiated 796 years ago, but Lord Woolf declares that they diminish into insignificance when compared with those chapters dealing with the individual's right to justice. The principles enunciated in those chapters Magna Carta have influenced the letter and the spirit of Jamaica's new charter.

Chapter 20 of Magna Carta recites: For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence accordingly, but not so heavily as to deprive him of his livelihood. That is clearly and demonstrably justified in a democratic society.

Lawful judgement

Chapter 38: In future, no official shall place a man on trial upon his own unsupported statement, without providing credible witness to the truth of it; and Chapter 39: No free man shall be seized or imprisoned or stripped of his rights or possessions or outlawed or exiled or deprived of his standing in any other way, nor will we proceed with force against him or send other to do so except by the lawful judgement of his equals or by the law of the land. That is the genesis of the protection of the right to due process, which would have had to find a place in Jamaica's new charter.

Chapter 40: To no one will we sell, to no one deny or delay right or justice; and Chapter 45: We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well. These are requirements of a democratic society.

The second reason why Magna Carta is so important is because of the influence it has had around the globe in establishing the principles that today are generally accepted as governing any society committed to the rule of law. Along with the Act of Settlement 475 years later, it secured the independence of the judiciary. Previously, the judiciary had been dependent on the goodwill of the monarch for remaining in office.

Magna Carta has also had a huge influence on the constitutional development of those countries that have conventional, written, entrenched constitutions. One of the earliest of these constitutions was the Constitution of the United States and, in particular, its Bill of Rights.

It is widely acknowledged that the preamble of the United Nations Charter is an "authentic offspring" of Magna Carta. After the last war, the world had learnt the painful lesson, that John and the barons' method of settling a little local difficulty had advantages to resorting to warfare.

The provisions of Great Charter were highly influential when it came to drawing up the European Convention on Human Rights; a number of the articles of that convention have a distinct Magna Carta resonance.

It is not surprising, Lord Woolf states, that its influence has spread throughout the Commonwealth. It is part of the Australian Common Law and was described by Justice Isaac as "the groundwork of all our constitutions".

India's distinguished Supreme Court has decided that the right for a citizen to have a passport is based on Magna Carta. Like so many others, that right has found a place in Jamaica's new charter.

The right to vote, the ultimate weapon against the arbitrary use of power in a democratic society, has also found a place in the document. When the royal assent is given by the queen's representative, the governor general, to the Charter of Fundamental Rights and Freedoms, Jamaica will have a new constitutional guide which is based on the principles enshrined in Magna Carta.

It must be understood that, like Magna Carta, it is meant to transcend the distinction between law and politics, and that its legacy must represent a joint commitment by the executive, the legislature and the courts to the rule of law.

A.J. Nicholson is an attorney-at-law and opposition spokesman on justice. Email feedback to columns@gleanerjm.com.