Print Edition - 2015-06-16 | Oped
- Magna Carta holds significance for Nepal which is currently drafting a new constitution
Jun 15, 2015-
Yesterday was the 800th anniversary of Magna Carta, one of the most referred-to human rights and law-related document in the modern world. Magna Carta, which means ‘Great Charter’ in Latin, is a peace agreement between King John of England and barons to stop the possible civil discontent signed on June 15, 1215. The barons were dissatisfied with the king because of his rules, which included arbitrary taxing and imprisoning people at will.
Magna Carta is a historic document, which not only tried to end King John’s arbitrary rule but also introduced the notion of supremacy of law. It has also inspired a number of well-known legal documents, including the Universal Declaration of Human Rights. Since the Nepali legal system is hugely influenced by the British common law system, the legacy of Magna Carta is also reflected in Nepali legal documents.
War and peace
King John, who ascended the throne in 1199, faced an armed conflict with France due to his second marriage. As the war needed money, the king ruthlessly levied taxes on his subjects, which in turn led to civil rebellion by English barons. The barons seized London and forced the King to sign the Magna Carta in 1215 as an attempt to address the civil displeasure, and to promote a national unity during the war with France.
The treaty promised to protect English barons from illegal imprisonment, protect church rights, guarantee access to swift justice, and make tax related decisions through a council of barons. Though initially meant to protect the interests of barons only, during the course of time, the provisions established by the legal accord were extended to the welfare of the general public.
King John’s successors such as King Henry and King Edward significantly modified the accord in 1225 and 1297 respectively, according to the changed socio-political context. Between the 13th and 15th century, the Magna Carta was amended at least 32 times as a major legal bond between the rulers and the subjects. Although this document ceased to occupy a pivotal role in the English political scenario since the Renaissance period, it outlined a number of fundamental values that challenged the tyranny of the king and laid an adaptable path for future rulers.
Most of the 63 clauses of the Magna Carta deal with various grievances relating to King John’s rule and they were amended or repealed during the course of time to make them more contextual in later periods. Its relevance in today’s world can be gauged by a single clause 39, which reads:
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 others to do so, except by the lawful judgement of his equals or by the law of the land.
In essence, Magna Carta establishes the three fundamental rights of modern democracy: a) nobody is above the law, and the basis of justice is equal at all levels of society; b) any person is free from unlawful detention without cause or evidence; c) everyone must get a fair trial by an independent jury. Similarly, Magna Carta takes a bold step in the history of women’s rights stating that widows will not be forced to marry as long as they wish to remain so, and will not be compelled to give up their properties.
The term ‘free man’ used in Magna Carta indicated a small segment of high-ranking population in Medieval England such as barons or nobles. A majority of the people were ‘unfree’. They could seek justice only through the courts established of their own lords. However, Magna Carta’s significance paved way for modern democratic traditions such as the rule of law, human rights, duty of government, effective justice delivery and reasonable taxation agreed by people’s representatives preventing the ruler from making arbitrary decisions.
Even though the charter was not properly implemented despite multiple amendments, it gradually occupied a central place in the common law system and modern political culture that cherishes individual freedom, duty of the government and participatory democracy.
Reference for Nepal
Even though Nepal does not have any legal document as old as Magna Carta, we can refer to Muluki Ain (civil code) of 1854, codified by Janga Bahadur to institutionalise administrative and legal frameworks. The civil code was the first legal document in Nepal that shifted Nepal’s religion-based legal system to a modern system. Like Magna Carta, Muluki Ain interpreted civil and criminal matters, provided frameworks for administrative and civil justice, revenue collection, landlord and peasant relations and family disputes.
Furthermore, Nepal has the experience of writing six constitutions within six decades—beginning from the first Constitution of Nepal Act 1948 to the Interim Constitution of Nepal 2007. Still, Nepal is waiting for another landmark constitution through the second Constituent Assembly which is anticipated to address key concerns of all segments of the nation’s populace including marginalised and minority groups. Like Magna Carta’s multiple amendments, we have evolved from one constitution to another to strengthen the bond between the rulers and the ruled. And, the tragedy is, like Magna Carta, our constitutions are also rarely implemented, and are very often ignored or misused by rulers. For instance, dozens of grave human rights violators during the decade-long conflict (1996-2006) have still not been brought to justice since they have strong ties with the ruling class. Public money has been misused on numerous politically motivated issues and financial irregularities have been growing as never before. In 2014, Nepal was ranked 126th out of 175 countries in the anti-corruption scale.
Magna Carta holds even greater significance for Nepal which is currently drafting the constitution for three reasons. First, no legal document is permanent. It can be changed during the course of time, depending on the context and the need of stakeholders. Second, the supremacy of law should be respected equally by the rulers and the ruled. Third, any decision or policy that affects public life should be taken after a careful consultation of people or their valid representatives.
Acharya is a researcher on media ethics and accountability at the University of Ottawa, Canada
Published: 16-06-2015 08:14