John Howard, R D 2, Hokitika, NEW ZEALAND

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The Court's have centuries of experience in dealing with fundamental rights. The trouble is our New Zealand Court's again seem to have lost their way.

Not so very long ago there was great controversy over the meaning, interpretation, and legal standing of the Treaty of Waitangi. This was reflected in initial Court rulings and political attitudes to the Treaty's standing. For years, Maori sought to rely on the Treaty as a source of rights, but, in the face of judicial, political and public attitudes, they were thwarted in their endeavours. As as an expression of fundamental Maori rights, that situation, politically and judicially, is changing.

However, the recent January 1997 Privy Council decision over urban/tribal Maori fisheries allocations is very interesting. The NZ Court of Appeal ruled what an Iwi was when it had no expertise in the matter and did not take evidence or submissions to find out. The Privy Council set aside that Court of Appeal judgement on the basis that in terms of due process of law, it could not make the decision it did. The Privy Council has returned the matter back to the NZ High Court. Therefore, if Magna Carta, or anything else for that matter, is now raised in submissions or in evidence with a local authority, or court, or at any other hearing, then it can no longer be dismissed, for example, as something that is not relevant if there is no expertise. The principles of due process of law, from the Privy Council decision, now requires that evidence or submissions must be taken on it.

Furthermore, there is now also another urgent and equally compelling need. And that is for the judiciary and the politicians to honour, uphold and observe, the fundamental principles and law of the Royal Charter of Magna Carta.

It is often said that; 'No person, or body of persons is above the law, and the highest law is the principle of justice'. If we accept that statement as a fundamental principle of our democratic system bought down from Magna Carta and other of our ancient and noble statutes, is it the reality.

There appears to be a disturbing trend in New Zealand wherein our judges are concentrating on the supremacy of the legislature and seemingly ignoring the equally important constitutional role of the independent Courts, as though the rule of law considered as a juristic principle over hundreds of years, fades into oblivion at the first indication of modern statutory authority.

The result of this doctrine of parliamentary sovereignty at all costs, is to make citizens more vulnerable than they may think to the arbitrary will of the Government. As Lord Scarman has put it -'So long as English law is unable in any circumstances to challenge a statute, it is, in dangerous and difficult times, at the mercy of the oppressive and discriminatory statute.' (Scarman, English Law - The New Dimension (1974) 18.)

In the High Court of New Zealand - Auckland Registry - CP1400/92 Baragwanath J. in a judgment dated 7 May 1996 said; - ' I am accordingly relieved from venturing into what happily remains in New Zealand an extra judicial debate, which the good sense of parliamentarians and judges has kept theoretical, as to whether in any circumstances the judiciary could or should seek to impose limits on the exercise of Parliamentís legislative authority to remove more fundamental kinds of substantive rights.'

He went on to say ' New Zealand both Parliament and the judiciary recognise that constitutional peace and good order are better maintained by adherence to conventions rather than judicial decision.' AND FURTHER ' New Zealand the remedy for a person aggrieved by legislation has always been political, not judicial.'

Moreover, in the High Court of New Zealand - Gisborne Registry - AP. 1/95 Barker J. in a judgment dated 16 July 1995 said; - ' Accordingly, I conclude that the common law duty and right are applicable in New Zealand, unless affected by a New Zealand statute.' AND ' The relevant statute in the present proceedings (RMA) deliberately sets in place a coherent scheme in which the concept of sustainable management takes priority over private property rights.'

Pardon! Has Justice Barker forgotten the origins of common law? Has he forgotten Coke's Commentaries where in his work 'The Origin of the Common Law of England' he tells us that Molmutius Laws (450BC) have always been regarded as the foundation and bulwark of British liberties? Does he not know that the Common Law is what turns courts of law into courts of justice? Does he not remember that the Common Law existed long before parliaments and statute law ever came into existence? Does he not know that the life of the Common Law is not logic but custom and experience? Can he be so far out of touch that he does not know that Common Law breathes the spirit of justice? Does he not know that he is the Queen's judge not parliament's judge?

Therefore, are these judges right, or are they abdicating their independent constitutional judicial responsibility, the common law, the rule of law, and the Charter of Magna Carta?

Lord Robin Cooke formerly President of our Court of Appeal, in an extra-judicial paper entitled 'Fundamentals' (NZLJ (1988) 164,165) says:- 'On the other hand, if honesty compels one to admit that the concept of a free democracy must carry with it some limitation on legislative power, however generous, the focus of debate must shift. Then it becomes a matter of identifying the rights and freedoms that are implicit in the concept. They may be almost as few as they are vital......One may have to accept that working out truly fundamental rights and duties is ultimately an inescapable judicial responsibility.'

Indeed, the United Nations Universal Declaration of Human Rights declares in the preamble:

'Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human right should be protected by the rule of law.'

'.....the rule of law.' Not statutory law, Parliamentary sovereignty or otherwise but, '....the rule of law.' i.e. The Courts. Furthermore, the Declaration expressly speaks of the fundamental human right. And that is exactly what this paper is about - The Rule of Law, fundamental human rights, and the Royal Charter of Magna Carta taking precedence over a pretended Parliamentary sovereignty.

Since Government has also ratified that U.N. Declaration, and the Parliament has not expressly repealed it, logically it follows that it must have intended to be taken seriously. (See R v Imigration Appeal Tribunal, Ex Parte, Manshoora Bengum (1986) Imm AR 385 (QBD) Simon Brown J.)

If the independent Courts stand as mediators between Parliament and the citizen then the focus of the fundamental rights and rule of law debate in New Zealand must shift. Denning MR summed it up;-

'The fundamental principle that, where there is any conflict between the freedom of the individual and any other rights or interests, then no matter how great or powerful those others may be, the freedom of the humblest citizen shall prevail....' (Freedom under the Law - Hamlyn Lectures 1st series p.4) see also e.g. I.R.C. v. Rossminster Ltd (1980) A.C. 952.

The spectre of a legislature interfering with important historic liberties of the subject has led to a renewed interest in constitutional guarantees of basic or fundamental rights.

Canada now has its Charter of Rights and Freedoms and, in the United Kingdom with its entry into the European Community, there is the European Convention on Human Rights. There is also the United States and the Australian Constitutions.

In New Zealand, however, both Parliament and the judiciary seem to believe that constitutional peace, welfare, good order and liberty of the person are better maintained by adherence to conventions rather than judicial decision. The Bill of Rights 1990, as an expression of fundamental rights, unfortunately, has been a big disappointment.

Let us look at some history.

The dangers inherent in the absolute sovereignty of Parliament, when combined with the idea that law should not be confused with what ought to be law, are plain. If Parliament has the power to make a legally binding command, no matter what the subject matter of that command, then it is entirely possible that a direct conflict will arise between the duty to obey the law and the moral duty not to obey wicked laws. This conundrum was solved in earlier times by the social contract. If the sovereign failed to protect the people in the enjoyment of their basic liberties, then it breached its contract with its subjects, and the oppressive 'law' could not be binding. Reliance was placed on unchanging common law, or on Magna Carta, a true convenant between the sovereign and the subject.

Over time, and certainly in New Zealand, these ideas have been swept away and replaced with nothing but a naive faith that Parliament would not interfere with important rights.

The potential for a great evil, because of this naivety, has been amply demonstrated by the Nazi rise to power in Germany and, more recently, in this and other countries. In the seventy five years before the Nazi regime positivism achieved a standing in that country such as it has enjoyed in no other. Lon Fuller - 'Positivism and Fidelity to Law' (1958) 71 Harv L Rev 631, 657-66 states:

' The German lawyer was therefore peculiarly prepared to accept as "law" anything that called itself by that name, was printed at government expense, and seemed to come "von oben herab"...Hitler did not come to power by a violent revolution. He was Chancellor before he became the leader. The exploitation of legal forms started cautiously and became bolder as power was consolidated. The first attacks on the established order were on the ramparts which, if they were manned by anyone, were manned by lawyers and judges. These ramparts fell almost without a struggle.'

Where would our judiciary stand, for example, if by some chance an oppressive Parliament were to be formed and a law was enacted which said 'Every person over 30 years of age had to be sterilised.' Where would our judiciary stand if Parliament enacted a law which said 'Elections for the House of Representatives will only be at 10 year intervals.'

These enactments, under our Parliamentary structure and recent judicial dicta, could be emotionally implemented and justified at any time. Could, or would, our judiciary stand on the ramparts of justice and the ancient constitutional rule of law? Would our judiciary act, resign or abandon their judicial oaths and state freely that they are no longer prepared to serve a country entitled to be called a free democracy? Valid questions? - Absolutely!

Does Parliament itself then, have the power to deprive the Court of its authority to hear a citizen's claim to enforcement of a fundamental legal right?

The New Zealand Parliament claims its sovereignty and privileges from the Bill of Rights 1689 and from a body of authority. That Bill came from the Declaration of Rights 1688 and the Bill of Rights was finally signed into law by King William on 16 December 1689.

However, importantly, the Bill of Rights (1 Will & Mary sess 2 c 2 1689) demonstrated that the victors in the Glorious Revolution had sought to protect, not to change, the fundamentals of the constitution. The framers of that document were simply declaring common law that already existed and would continue to exist. The preamble to the bill reads:

'And thereupon the said Lords Spirituall and Temporal, and in the first place (as their auncestors in like cases have usually done) for the vindicating and asserting their auncient rights and liberties declare.....'

'Vindicating and Asserting?'

Clearly, the intent and true meaning was not to abolish their ancient fundamental rights and liberties for a pretended parliamentary sovereignty, which is generally believed and accepted today. They were vindicating and asserting them, and reclaiming them, from a despotic King James II who had grievously violated them.

In fact my ancestor, Sir Robert Howard, a member of both Treby's and Somer's Rights Committees, said during the Bill of Rights debate;-

'Rights of the people had been confirmed by early Kings both before and after the Norman line began. Accordingly, the people have always had the same title to their liberties and properties that England's Kings have unto their Crowns. The several Charters of the people's rights, most particularly Magna Carta, were not grants from the King, but recognitions by the King of rights that have been reserved or that appertained unto us by common law and immemorial custom.'

The intent throughout that debate was clear; - Reserved fundamental rights.

That great conservative, Burke, also extolled the virtues of the Declaration of Rights thus:

'In the 1st of William and Mary in the famous statute, called the Declaration of Rights, the two houses utter not one syllable of a "right to frame a government for themselves." You will see that their whole care was to secure the religion, laws, and liberties, that had long been possessed, and had been lately endangered.......You will observe that from Magna Carta to the Declaration of Rights, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specially belonging to the people of this kingdom without any reference whatever to any other more general or prior right.' (Burke, Reflections on the Revolution in France (Penguin ed) 118ff)

In fact, at the time of James II it was the Parliament who was on the defensive and it is the Parliamentarians who deploy fundamental law first. There was great indignation from the Parliamentarians over the outcome of a case which were ventilated in Parliament. Magna Carta became the focus of the debate, and its famous clause - nullus liber homo etc. - (due process of law) caused the Parliament to frame a proposal to James which said:

'That according to Magna Carta and the Statutes aforenamed, and also according to the most ancient Customs and Laws of this Land, every free subject of this realm hath a fundamental propriety in his goods, and a fundamental liberty of his person.' (Gough, Fundamental Law in English Constitutional History (2nd Ed) at 63.)

The right to use fundamental law to rebel thus resumed a status as a lawful step in securing adherence to the fundamentals, just as the Barons had explicitly negotiated a right to rebel with King John in Magna Carta over four hundred years before.

So the perception, supported by our Courts, that Parliament has absolute sovereignty from the Bill of Rights 1689 is fundamentally flawed. And so it is also with the Charter of Magna Carta.

'..... it is important to bear in mind that the principle underpinning the English Laws statutes is one of full inheritance.' (Joseph, Constitutional and Administrative Law in New Zealand (1993), 13.)

Sir Edward Coke, Lord Chief Justice of England (in his Second Institute, when commenting on Magna Carta), foresook his crabbed learning, threw aside his lawyer's commentary, and brought out this little gem:-

'Upon this chapter, as out of roote, many fruitful branches of the Law of England have sprung........As the goldfiner will not out of the dust, threds, or shreds of gold, let passe the least crum, in respect of the excellency of the metall: so ought not the learned reader to let passe any syllable of this law, in respect of the excellency of the matter.'

As is to be expected, Winston Churchill has put it better than anyone else. Discussing Magna Carta he writes:

'The facts embodied in it and the circumstances giving rise to them were buried or misunderstood. The underlying idea of the sovereignty of the law, long existent in fuedal custom, was raised by it into a doctrine for the national State. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject it is to this doctrine that appeal has again and again been made, and never as yet, without success.' (Churchill, A History of the English Speaking Peoples (1956) Vol 1, 201-202)

In fact, the King's mischief to which Magna Carta was addressed relating to property rights and freedoms do exist in New Zealand today. Many of the injustices are remarkably similar.

In any event, while the fundamental law was growing in stature in the American colonies (Constitution - U.S. Bill of Rights) it continued to dwindle in stature in England. It found only weak expression in Blackstone, but Blackstone, in his Commentaries, observed that Chapter 29 all by itself - 'Would have merited the title that it bears, of the great charter...' (Magna Carta)

History has left us with a rich legacy but what has happened to this legacy in the case of our modern lawyers and Courts? Our long-standing ideas about the constitution and fundamental rights have been distorted, principally by the relatively new notions of Parliamentary sovereignty, by positivism and by taking Dicey undiluted.

The positivist completely seperates the moral basis of the legal system from the morality of laws. An immoral law may, nevertheless, be a valid law. But a civilised system of law should reject the notion that there is no relationship between political morality and the validity of the laws declared. The role of a constitution is to protect the values it serves. Undiluted, Dicey theory gives the law-maker the legal power to destroy everything which a constitution (written or unwritten) serves to protect.

Some would say that's exactly what is happening within New Zealand.

Dicey attempts to prove the proposition that Parliament is omnicompetent by referring to a variety of far-reaching statutes, by dismissing three possible limitations (morality, the Royal Prerogative, and the binding of following Parliaments), and by invoking a passage of Blackstone. The proof is scarcely convincing. In Simpsons words:

'Dicey announced that it was the law that Parliament was ominicompetent, explained what this meant, and never devoted so much as a single line to fulfilling the promise he made to demonstrate that this was so.' (The Common Law and Legal Theory in Simpson (ed), Oxford Essays in Jurisprudence (2nd series) 77, 96.)

For some unexplicable reason the Courts have relied upon Dicey and upon the political fact of the Glorious Revolution (Bill of Rights 1689). They have aquiesced in the aggregation of power in the hands of the Legislature. But there is little historical support for the interpretation the Courts have placed upon the Revolution. The work of Dicey at the end of the nineteenth century fortified the relationship between the Courts and the Legislature, and since that time it has been, to all intents and purposes, impossible to deny the validity of an enactment for some substantive reason.

Indeed, Lord Reid (Pickin v. British Railways Board (1974) AC 765, 782) states;-

'I must make it plain that there has been no attempt to question the general supremacy of Pariament. In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of natural justice, but since the supremacy of Parliament was fully demonstrated by the Revolution of 1688 any such idea has become obsolete.'

Nonsense! The Revolution demonstrated no such thing for the reasons that have been shown, and Lord Reid somehow, conveniently forgets Magna Carta and the already well established fundamental principles prior to 1688. The Courts and Parliament, however, have relied upon judgments like that of Lord Reid to substantiate their position.

Moreover, it is clear that the intent of the measures in the Bill of Rights were to prohibit a Monarch (or others hostile) from using any means of harrassment to block or interfere with the processes by which Parliament makes laws.

The Bill of Rights was preserving the supremacy of Parliament over any future Monarch who might feel disposed to assert the opposite. Parliament is sovereign in that sense, not in the sense that it is incapable of doing wrong or that no one may question the validity of an Act of Parliament.

It is Article 9 of the Bill of Rights from which Parliament claims its sovereignty. That article says;

'That the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Paryament.'

'...ought not to be...' Not 'shall not' or 'will not' - The intent, therefore, for an absolute sovereignty of Parliament is not evident. Elsewhere in the Bill of Rights, however, the intent is quite explicit in the terms - 'is illegal' - 'are illegal and pernicious' - 'is against law' - 'is unlawful'. So the intent in the various articles is clear. There was never meant to be an absolute sovereignty for Parliament which prevented challenge of statutes or for decision by the independent Courts.

It is quite wrong then, to believe without distortion of interpretation, that those early architects and champions of the already established fundamental rights, liberties and free speech, were busy making a sort of Trojan Horse, from the belly of which could never emerge a means of safeguarding those very ancient rights and liberties which they held so vital and fundamental.

That is not to say that Parliament cannot enact law. But when those laws over-ride the ancient and hard won principles of fundamental rights they must be open to challenge in the Courts.

In the 50 volumes of the fourth edition of Halsbury's Laws of England the subject of human rights is dealt with in only 45 pages, and then gingerly within the title Foreign Relations Law.

Halsbury does, however, speak of the - 'four great statutes or charters by which the rights and liberties of the subject are preserved and acts of tyranny by the Crown or its ministers restrained.' Halsbury names as the first of these the Magna Carta.

Halsbury (para 801) also notes that various provisions of Magna Carta have been repealed by 'a long series of Acts'. That is not entirley correct.

King John's death, in 1216, brought his nine-year old son, Henry III, to the throne, and within days after his coronation Henry's supporters, seeing in the Charter a means of winning friends for the new king, had it confirmed. At that time about a third of the clauses, most of them dealing with temporary problems, were repealed. A second confirmation took place in 1217, when the forest clauses were severed and put into a seperate 'Charters of the Forests.' A third confirmation occurred in 1225, by which time the name 'Magna Carta' had come into use to distinguish that charter from the forest charters.

By this time Magna Carta was well on its way to becoming the cornerstone of the English Constitution. Before the close of the Middle Ages it had been confirmed thirty eight times, a fitting tribute to the reverence which Englishmen came to feel for their Great Charter and the awareness which king after king had of this reverence. In 1297, with its confirmation by Edward I, Magna Carta had established itself as fundamental law.

But it is only Chapter 29 of the 1297 charter which our Parliament has adopted through the Imperial Laws Application Act (1988) First Schedule. That is like saying that only one part of the Treaty of Waitangi means anything. That, of course, would be a gross miscarriage of justice. And that is what it is with what Parliament enacted of Magna Carta - a gross miscarriage of justice. By the way, the Magna Carta, as confirmed through the ages, was not divided into Chapters. The imposition of Chapters is a much later event. Magna Carta's creaters and confirmers nver intended it to have parts hived off; it was a whole and complete item.

In 1368, for example, a statute of Edward III commanded that the 'Great Charter and the Charter of the Forest be holden and kept in all Points; and if there be any Statute made to the contrary, it shall be holden for none.' Here we see Magna Carta treated as a superstatute, in other words, as a constitution. The declaration that statutes contrary to Magna Carta are null and void carries an obvious similarity to the American Constitution whereby Acts of Congress or of State legislatures are held invalid if they are found to conflict with the Constitution.

Quite clearly, there has been a modern-day perversion of the true meaning and intent of Magna Carta and the Bill of Rights. Obviously, you have got to get the principles right first, otherwise your objective and your means of getting there will be lost. As Churchill says of Magna Carta. - 'The facts embodied in it and the circumstances giving rise to them were buried or misunderstood.'

Moreover, the later 1688 Glorious Revolution took place against the backdrop of what the Parliamentarians saw as violations of these historic constitutional fundamentals, and the object of the Revolution was to restore them from a despotic King James. That is what they did. Clearly, it was not to claim some special sovereignty for themselves and future Parliaments. In fact, it was a conservative Revolution with no blood on the floor. In the words of Macaulay:

'It was a revolution strictly defensive and had prescription and legitimacy on its side....Our Parliamentary institutions were in full vigour. The main principles of our Government were excellent. They were not, indeed, formally and exactly set forth in a single written instrument: but they were to be found scattered over our ancient and noble statutes; and, what was of far greater moment, they had been engraven on the hearts of Englishmen during four hundred years. A realm in which these were the fundamental laws stood in no need of a new constitution.' (History of England From the Accession of James II (Firth Ed) Vol 3, 1306ff)

Furthermore litigants today, do not ask the Courts to make laws. Rather to unmake, or decline to recognise as valid, laws that conflict with long standing fundamentals of common law and fundamental rights like those contained in Magna Carta.

And that is as it should be! -

'Magna Carta has not remained untouched, and like any other law in England, it is not condemned to that immunity from development or improvement which was attributed to the laws of the Medes and Persians.' (Chester v Bateson (1920) KB 829 at 832.)

'.....development or improvement'? For the Parliament to develop or improve on a fundamental right is one thing. But to enact legislation which expressly removes an already existing fundamental right, and to have that enactment blindly upheld by a Court, is quite another. On that basis Parliament could enact a law early in its Parliamentary session which absurdly said every red-head had to be scalped and that enactment would be upheld by the Courts. Therein lies the danger of our present Parliamentary and judicial thinking. It perverts the principle of justice to hold a naive faith, apparently supported by the constitutionally independent Courts, which says that Parliament is supreme and can do no wrong. The historical facts do not support it.

While Lord Robin Cooke remained as President of our Court of Appeal, there was a small flicker of recognition of fundamental rights, guaranteed to citizens by the common law and enforced by the Courts. Unfortunately, he has now gone from that position and we seem to have returned to a dogma of judicial mediocrity. Either that, or some of our legal representatives are poorly representing us and are not doing their homework properly.

It should be that renewed public interest in fundamental rights and liberties, sparked by Lord Robin Cooke, will lead to a re-evaluation of the role of the Courts in protecting the individual against the powers of the State, and herald a return to a more traditional balance in the constitution. As Allott writes:

' If there is one thread which runs through the whole turbulent history of British constitutional development, it is the belief that we are the servants of fundamental constitutional rules which were there before us and will be there after we are gone. From the days when the King's subjects demanded respect for the laws of King Edward the Confessor, through the centuries in which legendary superiority attached to such acts as Magna Carta, the Petition of Right, the Bill of Rights, the idea of our ancient rights and liberties has determined the form of our endlessly progressive/conservative constitutional change.' (Allott, The Courts and Parliament Who Whom? (1979) CLJ. at 114)

There is currently before the New Zealand Parliament a proposal to abolish our right of appeal to the Privy Council. Based on the foregoing would we, at the present time, have sufficient confidence with our present judiciary to undertake, without a two-tier judicial system, the duties of the Privy Council? A vexing question certainly, but nevertheless, a valid one.

The process of identifying our rights, and their ambit, need not be done without guidance.

Most of the important principles are already enshrined. Magna Carta, The Bill of Rights (1689) the Habeus Corpus acts, the Petition of Right, The Act of Settlement, the Statute of Westminster are but some instances. Many of these instruments declare fundamental rights which, in the framers' view, already exist but in New Zealand, seemingly, will not be enforced.

Other sources are the various international instruments affecting human rights, and the experience of the United States with its Constitution and its Bill of Rights ( Both direct descendants of Magna Carta and English Constitutional law) There is also the Canadian Charter of Rights and Freedoms, currently having a major impact on the legal system in that country.

This paper has set out to show how far we have deviated from the fundamentals. If a country is to be successful, and is to enjoy an effective legal system, there must be some agreement as to the basic principles which limit the power of the legislature. Parliament has failed to produce a New Zealand Bill of Rights which establishes the fundamentals.

Furthermore, if expensive legal textbooks are any indication, law students in the Universities are not taught much about our historical legacy in Magna Carta. On the other hand, the statements of Dicey seem to have been elevated to 'God-like' status. (See The New Zealand Legal System -McDowell & Webb; Butterworths)

That being the reality, it will be the general public who will need to commence our activism to reclaim our ancient, undisputed and admitted fundamental rights which have been so grievously violated.

NB There is no copyright on this paper and people who find themselves in a legal predicament may wish to provide a copy to either their lawyer or the Court. You might also like to distribute this paper as wide as you can through your friends and associates.

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