Joe Hendren

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Monday, December 13, 2004

Principles of Magna Carta still needed today for Zaoui and those at Guantanamo

In Runnymede field in 1215, King John was forced to sign a document designed to prevent abuses of royal power, the Magna Carta.

While the vast majority of the Magna Carta dealt with immediate issues of concern to the traditional English aristocracy, it did contain one important principle – that there existed a body of law independent of the King, and the King could not act outside the law. In retrospect, the charter was a logical progression from Henry II’s legal reforms, as it made the only family then exempt from the law subject to the law.

The Magna Carta enshrined the right to freedom of movement, and placed a prohibition on imprisonment without lawful case. A sentence could not be conferred until lawful judgement by peers.

I find it amazing that in the case of Ahmed Zaoui in New Zealand and the incarceration of the alleged terrorists in Guantanamo Bay, we are still battling with the arbitrary power of kings some 800 years after the Magna Carta was first signed. The war on terror is no excuse to do away with fundamental constitutional principles.

In another irony, John only became King after his brother Richard the Lion heart fell to an arrow on his return from another war against Islam, the crusades.

An urgent review of the Immigration Act 1987 is required, as the right of the inspector general of intelligence to issue ‘Security Risk Certificates’ without a requirement to inform the accused the reasons for imprisonment, comes awfully close to a simple abuse of executive privilege. Denying Zaoui the reasons for his imprisonment made it impossible to mount an adequate defence and thus denied him the right to a fair trial of his peers. How long should someone be in prison before it is asked ‘hang on, is this arbitrary imprisonment’? While Zaoui’s request for Habeas Corpus failed, it again demonstrated that the issues surrounding this case have been with us a long time.

Of course Guatánamo Bay is worse, as those held there and in other like US prisons are denied legal process completely. Appointing military lawyers is not good enough, as anyone accused of a crime should be able to choose their own lawyer. No American king, notably George W. Bush should be able to call someone a terrorist and lock them up for an undetermined time. Those held in Guatánamo can only be called alleged terrorists until an adequate trial is held to ascertain their guilt. I expect to return to his issue in a later post. Interesting Guardian article about Magna Carta and Guatanamo Bay. The world needs more Runnymede and less Rummymede!

Of course King John did not keep to the bargain, and as a result the Magna Carta was reissued a number of times, most significantly in 1297 when the Hammer of the Scots, Edward I ran out of hammers.

With the Ahmed Zaoui decision I was pleased to see the Supreme Court fulfil one of its most important functions - acting as a break on the actions of the executive (the crown and cabinet). But ultimately it is up to us to hold our Kings and Queens to account. Making a protest is an act of loyalty to the principles in which ‘liberal democracies’ are founded.
"Clause [29] No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right." (Magna Carta, 1297 version)

The Magna Carta, along with sections of the Bill of Rights Act 1688, The Act of Settlement 1700 and the Habeas Corpus Act of 1640 (+ 1679 + 1816) are incorporated into New Zealand law by the Imperial Laws Application Act 1988 (and previous enactments) (Source : The New Zealand Legal System, 2ed, McDowell and Webb)

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At 3:05 pm, Anonymous Anonymous said...

Unfortunately, neither the British or New Zealand constitutions entrench the Magna Carta above ill-considered recent legislation (the Immigration Act, for example). In my view they should be (well some of the provisions - I'm not sure that the removal of weirs on the Medway is of particular importance in today's NZ).

At 9:19 am, Blogger Joe Hendren said...

Interesting, thanks for that. Do you have any recommened links that explain the position of the Magna Carta in the NZ constitutional arrangments further? In any case you sound like you have a brain worth picking!

You are quite right that a lot of the Magna Carta would not be relevant to NZ today, as it was only a couple of key clauses that gave the MC wider consitutional significance and influence. eg.

[34] No Man shall be taken or imprisoned upon the Appeal of a Woman for the Death of any other, than of her husband.

On the good side I guess it is limiting the death penalty, even if it is very sexist. If this clause was any wider perhaps the Govt could have tried to use 'appeal of a woman' arguments against Deborah Manning - heck they tried just about every other legal avenue to keep Zaoui in jail! :)

Please feel free to leave a first name, initial or online name with your message, that way if you comment again I will know it is you :)

At 2:51 pm, Anonymous Anonymous said...

G'day Joe from across the ditch, Does New Zealand have an Imperial Acts Application Act as does Oz in our Fe'ral and State legislation?

Freedom for all

At 6:20 am, Anonymous Anonymous said...

just cut it down how is is important today i have 5 minutes to do it and it will take me 10 minutes to read all that.


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