A charter that became more than it was

2015-06-15 13:23
King John signing the Magna Carta at Runnymede on June 15, 1215. The charter was a peace document between the querulous king and a group of rebel barons.

King John signing the Magna Carta at Runnymede on June 15, 1215. The charter was a peace document between the querulous king and a group of rebel barons. (Supplied)

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THE Magna Carta, the 800th anniversary of which is today is an iconic document and indeed one of the most famous historical and liberation instruments of all time.

On this date in the year 1215, the unpopular and autocratic King John of England signed the great charter in a field at Runnymede, near Windsor. It was drafted by the Archbishop of Canterbury, Stephen Langton, as a peace document between the querulous king and a group of rebel barons.

In summary, this medieval charter promised, inter alia, the protection of church rights, protection for the barons, knights and in some cases freemen, but not women or so-called villeins, i.e. the serfs or labourers, from illegal imprisonment, access to swift justice, and limitation on feudal payments to the crown. All of these provisions were to be implemented through a council of 25 barons, a majority of whose decision sufficed for action to be taken against the king to force him to comply with the obligations of the charter, which he had solemnly undertaken to do.

This is often cited as a manifestation of the principle of “majority rule”. The charter involved the king and his barons and did not, as indicated above, apply to ordinary people. Although designed as a peace instrument, its extreme demands made on the king provoked civil war rather than peace. In its own time it was a failure. Subsequently, it was misunderstood and romanticised.

Consequently, over a period of 800 years, this medieval document has become a legend. So for instance Lord Denning described it as “the greatest constitutional document of all times — the foundation of the freedom of the individual against arbitrary authority of the despot”. As South Africans, we could differ with Lord Denning and assert that our Freedom Charter of 1955, enacted by the Congress of the People, at Klipfontein, is as great a document as the Magna Carta.

In different countries, the legend and myth of the charter has been invoked in a struggle against tyranny and authoritarianism. This occurred during the turbulent 17th-century England in the titanic struggle between the Stuart kings and Parliament. It was invoked by legendary Sir Edward Coke, erstwhile chief justice and attorney-general in his opposition to monarchial rule, based on the divine right as espoused by King James and his son Charles I.

Nevertheless, when the imperious Oliver Cromwell, as Lord Protector, who had abolished the monarchy, was called to account by people quoting the noble sentiments of the charter, he ridiculed the great document, scathingly referring to it in a vulgar way as the “Magna Farta”.

It was invoked against the doctrine of the divine right of kings and is cited as the origin of habeas corpus. Its influence is evident in the constitutional settlement that followed the Glorious Revolution of 1689 and the emergence of parliamentary government in the United Kingdom. The same occurred in the revolutionary struggle between Great Britain and the 13 American Colonies in the 18th century. The myth of the charter was invoked by the Americans in their war of liberation against the English Crown and Parliament and is reflected in the American Declaration of Independence and the United States Constitution of 1789.

In 1965, Sir Robert Burley, the headmaster of Eton, delivered a powerful oration at the University of the Witwatersrand to commemorate the 750th anniversary of the charter at the zenith of the apartheid era in South Africa, quoted the stirring phraseology of articles 39 and 40.

The former states: “No free man shall be taken or imprisoned or dispossessed or outlawed, or exiled, or anyways destroyed; nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

At the time, the Verwoerd government and B.J. Vorster as minister of Justice had banned the liberation movements and instituted detention without trial, as a result the following words in article 40, quoted by Burley, were profoundly meaningful and poignant for those suffering under the yoke of ferocious security laws of the time, such as the notorious Suppression of Communism Act: “To none will we sell, to none will we deny or delay right or justice.”

In invoking the charter, its proponents declared that the rights accorded to the privileged minority were to be extrapolated to the ordinary people of the land. The Magna Carta therefore has relevance for us in South Africa today, in the light of our struggle for liberation from apartheid and institutionalised racism.

Although even after almost all its contents have been repealed from the statute book in the United Kingdom in the 19th and 20th centuries, with only two remaining, articles 39 and 40, it remains an iconic document with an international and universal significance.

As a symbol of liberty it reminds us that our freedoms were hard won and that we should treasure and guard against their erosion or diminution.

The cost of liberty is indeed eternal vigilance.

• George Devenish is an emeritus professor of public law at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993

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