Professor Sangroula, Professor Wilson, Distinguished Guests, Ladies and gentlemen,
It is a great privilege for me to be addressing the Kathmandu School of Law today, and I am glad to see the School in operation following the 25 April and 12 May earthquakes. The drive to maintain and restore educational facilities following the earthquakes is just one example of the resilience and determination of the people of Nepal that I have come to greatly admire since my arrival here.
The privilege I have today is to address you on the occasion of anniversary of the Magna Carta- the “Great Charter” that was agreed by King John of England at Runnymede on this day, 15 June, 800 years ago in 1215.
The Magna Carta was sealed-not signed-at point in time when the English barons had been pushed to their limit by a King who had used his arbitrary power to extort and appropriate their property, more or less at will. The barons rebelled against this form of rule, and demanded that the King accede to their demands in return for their oaths of loyalty.
It is a document of some 3,550 words, written in Latin. Many of its provisions, even in modern translation, seem archaic, and some of the demands of the barons, reflected in the Charter, seem hardly worth commemorating today. One set of provisions, for example, mandated the removal of all fish weirs from the Thames and the Medway. No doubt important at the time, but not now of huge historical significance.
But the Charter also reflected a wider proposal for political reform in provisions which still have a clear contemporary resonance. Like a number of the most inspirational and influential texts which have and continue to influence us today, the Charter was borne out of a struggle against unbridled power.
Essentially, the Magna Carta established that no-one, not even a King, was above the law.
The Charter prevented the King from levying taxation without the common consent of the kingdom.
And Chapter 39 of the Charter laid down as follows:
“No free man is to be arrested, or imprisoned, or dispossessed, or outlawed, or exiled, or in any way destroyed, nor will we go against him, nor will we send against him, save by the lawful judgment of his peers or by the law of the land.”
And in Chapter 40 the King accepted that:
“To no one will we sell, to no one will deny or delay, right or justice”.
The principles asserted in these chapters were fundamental ones: the rule of law, and equality before the law. Principles that remain as valid today as they were when first agreed at Runnymede.
Of course, it should not be thought that Magna Carta presaged the creation of an instant perfect democracy. It was a document of its time. The liberties set out in the Charter were granted not to “all the men” of the kingdom, but to “all the freemen”. They did not apply to unfree tenants, who essentially remained serfs or vassals of their landlords.
Nor did the Charter establish equality between men and women. The “peers” who could sit in lawful judgment were entirely male, as women did not sit in juries. And women took no oath of allegiance to the king because in theory they were also under the protection of a man- be it father, husband or lord.
The concepts laid down in the Magna Carta were nonetheless ground breaking for their time, and the foundations that Magna Carta laid down about the relationships between the State, the individual and justice endure to this day in the law of the United Kingdom. An understanding that power is not to be exercised in an arbitrary and unconstrained way; that the State is answerable to its citizens; and that there must be due process in accordance with the law.
Magna Carta, although a specifically English document, has also, though the ages, shown its capacity to inspire beyond its borders. In the US, where its image adorns the doors of the Supreme Court, Magna Carta proved the inspiration for the founding fathers of the American Declaration of Independence.
And as the world recovered from the trauma of World War 11, Eleanor Roosevelt heralded the 1948 Universal Declaration of Human rights as an “international Magna Carta”. In its preamble the declaration clearly reflects the spirit of the Magna Carta:
“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 rights should be protected by the rule of law”.
And in 1964, when on trial in South Africa for his life, Nelson Mandela cited the Magna Carta, alongside the Petition of Rights and the Bill of Rights, as documents that were “held in veneration” by democrats worldwide.
The Magna Carta has also particularly made its presence felt in the 54 Commonwealth countries, and also in those countries, including Nepal, who have incorporated common law into their systems.
I was pleased to see that in the recently published Rule of Law index prepared by the World Justice Project, Nepal ranked in 48th position. That was a slight slippage in ranking compared to 2014, but it still placed Nepal highest in South Asia.
The World Justice Project defines the rule of law as a system that ensures four universal principles:-accountability, even application of law, protection of human rights and access to justice. Those same principles as espoused in the Magna Carta.
I believe that respect for those principles will stand Nepal in good stead.
This is not just a matter of what is morally or ethically right. The rule of law is also one of the core principles that underpins strong institutions and accountable government on which success for countries can be built.
Where political competition, rule of law and free speech are lacking, social stability will be vulnerable at best, and absent at worst.
Absence of the rule of law, with attendant corruption and insecurity can also adversely affect economic growth. Arbitrary decision making and absence of security of contract will negatively affect innovation, entrepreneurship and foreign direct investment, making it much less likely that the private sector will want to invest in creating strong, growing businesses.
Conversely the rule of law, good governance and personal liberty are the Golden thread that can help to nurture the institutional and economic growth that we all wish to see.
Of course not everything can be achieved overnight. The road from Magna Carta to the UK’s modern democracy was not immediate. Our system was not built in a day, and the story of British democracy is one of evolution, not revolution.
And it is for each nation to find its own way within the overall norms and principles of international law which set out the rights of all men and women. In the context of Nepal, however, let me say that the UK, together with the rest of the international community, has welcomed the progress that has been made in recent days towards a new constitution. Not all issues are resolved. But the agreement is a significant step forward in the post-conflict process and we encourage the political parties to redouble their efforts to complete the constitution drafting process in a way that meets the broad aspirations of the Nepali people, women and men alike.
The principles laid down by the Magna Carta are as valid now as they were on this day 800 years ago, and I believe will remain as valid in 800 years time for future generations.
And I hope that you as lawyers in your future careers will play a key role in maintaining the rule of law in your day to day practice, keeping alive those principles that were laid down in Runnymede so long ago, but which are as important today as they ever were.
Professor-in-charge of Kathmandu School of Law Dr. Yubaraj Sangroula and Fulbright scholar Professor Evelyn Wilson from Southern University Law Center, USA also addressed the gathering.