New Zealand Law Society - Rt Hon Dame Sian Elias GNZM

Rt Hon Dame Sian Elias GNZM

This article is over 3 years old. More recent information on this subject may exist.

Magna Carta, 800 years old this year, is a foundation of the New Zealand constitution. It is part of the heritage that came to these islands with the Treaty of Waitangi. And, as Sir Robin Cooke once said of that foundational document, sometimes referred to as “the Māori Magna Carta”1 and itself 175 years old this year, “a nation cannot cast adrift from its own foundations”.2

The Charter extracted from King John in dramatic circumstances in the meadow beside the Thames between Windsor and Staines was repudiated almost immediately, precipitating civil war which ended only with the death of King John. The essential promises of the Charter were however reissued by successive kings and confirmed some 30 times throughout the Middle Ages. They became the root from which further protections of freedom grew, making retention in their original form unnecessary. Today, only clause 29 of Magna Carta (as enacted by Edward I in 1297) is directly in force in New Zealand.3

The terms of Magna Carta are often misunderstood. Inevitably, myths have grown up around it. Its veneration and asserted role in the development of modern states derived from the English model are sometimes disparaged as “bad history” and “romantic” thinking. It is said that the terms of Magna Carta expressed nothing that was new. These were promises of good government long made by Anglo-Saxon and Norman kings. Magna Carta did not establish habeas corpus or trial by jury. Although it treats taxation by the king without the council of the land as contrary to law and custom, it could not anticipate the development of parliament (although a rudimentary parliament under Edward I was not far off). But in article 14 (which provides for the summoning of the barons and the bishops to advise the king) there are indications of a felt need for wider and more systematic representation in the council advising the king than was provided by the Curia Regis, as the legal historian, William Holdsworth suggests.4 Magna Carta does not point to the repositioning of the sovereign power to make law in the king-in-parliament, which is where our constitutional journey in New Zealand now rests. Magna Carta of course says nothing about democratic government. Nor does it protect the independence of the judges, which was not secured until the Act of Settlement in 1701. All these things lay in the future in 1215. And their achievement was by no means made inevitable by the Charter.

The deflation of the more pretentious claims about Magna Carta does not diminish its hold or its position in our constitutional history. But perhaps these folk memories of the importance of “The Great Charter of the Liberties of England” (as it was called in the Petition of Right of 1628) and their persistence tap into enduring values behind the politics and self-interest of the moment in 1215, which remain. Its clauses protest against arbitrary deprivation of liberty and property and look to proper legal process. They claim justice which is not corrupt and not delayed and is provided by royal justices who know the law and are committed to fulfilling it. They look to common laws and measures and weights and protection of trade and movement. They proceed on the basis that law is observed by the king not as a matter of grace, but as a matter of obligation. And they look to arbitrary power being curbed not only by law but by the consent of the country.

And if the Charter represented in its day in large part claims for restitution of freedoms and liberties long-known or was preoccupied with aspects of feudal tenure, it also represents a departure. Demands for the laws of Edward the Confessor are no longer made after Magna Carta. Instead, the focus changes to confirmation of the Charter and the better securing of its promises. Subsequent reforms invoked the Charter. Encroachments on freedom were resisted in its name, particularly in the times of growing absolutism under the Tudors and Stuarts and the dictatorship of the Protectorate. It was cited in opposition to arbitrary power to imprison or take property, taxation without parliamentary consent, and development of Crown prerogative powers. The Charter was critical in the battle of ideas which led eventually to parliamentary government.

It is not fanciful to see in the terms of the Charter ideas central to the rule of law and which have influenced modern statements of rights. Magna Carta has been cited in court cases from the 13th century down and in all jurisdictions which have inherited it. It was an important plank in the reasoning of the United States Supreme Court in Rasul v Bush 542 US 466 (2004) which held against executive imprisonment.

The best evidence of the importance of Magna Carta is, as Sir William Holdsworth claimed, “the history of our public law from the time of the granting of the charter”:5

“The charter was constantly appealed to all through the mediaeval period, and during the constitutional conflicts of the seventeenth century; and, after those conflicts had been settled, its observance came to be regarded both by lawyers and politicians as a synonym for constitutional government.”

Magna Carta lays the foundations for the rule of law and parliamentary sovereignty, the twin elements of the New Zealand constitution. It would be foolish to think constitutional evolution is at an end in New Zealand. It can be confidently expected that the ideas of Magna Carta will continue to be drawn on in the necessary discussions on constitutional directions, as they have been for the past 800 years.

  1. See Paul McHugh The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press, Oxford, 1991).
  2. Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) at 308–309.
  3. Imperial Laws Application Act 1988, sch 1.
  4. Sir William Holdsworth A History of English Law (7th ed, Sweet and Maxwell, London, 1956) vol 1 at 55.
  5. Sir William Holdsworth A History of English Law ( 4th ed, Sweet and Maxwell, London, 1936) vol 2 at 215–216.

Dame Sian was admitted in 1970. After postgraduate study at Stanford University she worked for Turner Hopkins & Partners before becoming a barrister sole in 1975. She was a Law Commissioner from 1985 to 1989 and was appointed Queen’s Counsel on 4 March 1988. Dame Sian was appointed to the High Court in 1995 and on 17 May 1999 she was sworn in as Chief Justice of New Zealand. She has acted as Administrator of the Government a number of times when Governors-General have been unable to fulfil their duties. In 2004 Dame Sian became one of the inaugural members of the New Zealand Supreme Court, where she is presiding judge.

Lawyer Listing for Bots