Rule of Law Updates and Perspectives advancing together Volume 4 • Issue 1 • June 2015
A publication from LexisNexis® Capital Monitor to advance the rule of law in the Asia-Pacific Rule of Law Updates and Perspectives Volume 4 • Issue 1 • June 2015 advancing together
Contents Page 4 Magna Carta and the rule of law
Page 6 Development, the rule of law and business
Page 11 Promoting respect and support for the rule of law
Page 13 Australia and climate refugees
Page 15 Death penalty returns to Pakistan
Page 17 Rule of law, Papua New Guinea and the marketplace model
Page 19 Supporting the rule of law in Myanmar
Page 21 History’s most important document: Symposium summary
Page 23 800th Anniversary of Magna Carta
Cover image includes the Rule of Law Institute’s Replica of the 1215 Magna Carta from Salisbury Cathedral. The replica is on display in the High Court of Australia. Dear Reader,
In March 2015, LexisNexis held a Pacific Consultation Workshop in Sydney with the critical purpose of ensuring that our region is included in a global framework. It will ultimately take the form of a guide for all businesses on how they can support the rule of law. In collaboration with the local United Nations Global Compact (UNGC), the Workshop initiated and enabled dialogue related to new ways in which to strengthen the rule of law in order to build stable and fair societies, where business can flourish locally and within our region. The Pacific Report has been submitted to the United Nations, and is set to launch in June 2015 with action points for businesses and relevant parties to develop tailored plans for their company; build a community of business leaders; and key success metrics in advocating the rule of law principles.
The rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It also requires measures to ensure adherence to the principles of supremacy of law, equality before the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. The rule of law is essential for sustainable and inclusive economic growth — where it is weak, it is harder for responsible businesses to function and to meet their corporate responsibilities.
We believe that when you put information and technology into the right hands, you give people the power to shape justice and advance society. Among other things, the rule of law ensures legal systems foster economic investment by increasing the security of contracts, lowering levels of corruption, and allowing for timely, fair, transparent and predictable resolution of disputes. We are confident we have the most significant impact when we apply our expertise to areas like universal, sustainable access to information, promotion of the rule of law and access to justice.
LexisNexis will retain its commitment and passion to pursue these initial overarching objectives of spreading the rule of law throughout the Pacific and creating relationships with authoritative legal agencies to make the law more accessible where possible. In 2015, we are continuing with the workflow and automation for the Vanuatu Ministry of Justice on LexisVisualfiles®; expanding the Fiji Law Reports; publishing analytical text works for Papua New Guinea; developing gratis online access to legal materials for the Supreme Court of Nauru and the Tongan Ministry of Justice; and launching the Business for Rule of Law Framework with the United Nations Global Compact; as well as pursuing further opportunities in the Pacific.
Upon its creation, in 1215, the Magna Carta agreement was not honoured by King John, and over the centuries it has been refined, forgotten and revived again. It is with great honour that we publish our Advancing Together: Magna Carta edition celebrating the momentous 800 year anniversary of the charter that has arguably formed an initial foundation for democracy and influenced a preliminary understanding of the rule of law. Remarkably, one of the four original copies is in Australia, and with eight centuries on the charter, it remains an important symbol of the rule of law and the principle of basic freedoms. It is a privilege to celebrate this anniversary and to continue discussions around the rule of law with the legal community to enable the advancement of society.
With kind regards,
Jo Beckett General Manager LexisNexis Australia Magna Carta and the rule of law
ll educated persons, especially Perhaps 30 copies of the Charter were (but not only) those in places made and they were still being copied, Awith an English heritage, think economically on expensive vellum with they know what the Magna Carta is and many abbreviations to save space, in why it is important to our lives – but it is July. They were taken to county courts always helpful to stop and think about throughout the land to be read aloud in objects that have passed into legend Latin and French. Only four of the 1215 and that over time have acquired documents are known and they were significance and value that the exhibited together for the first time in originators could never have foreseen. the British Library and House of Lords By Nicholas Cowdery AM QC, A common view is that King John made in February this year. Chair, Magna Carta Committee, an agreement with the barons in 1215, Rule of Law Institute of Australia, that the document became “law”, it King John died in 1216 and his son and Adjunct Professor of Law created rights, it has been construed heir, Henry III (then only 9 years old), and applied ever since and it is the reissued the Charter of Liberties in source of most that is good in public that year and in 1217, but with only 37 administration — including democracy, clauses. Because a smaller Charter the separation of powers, the rule of of the Forests was issued at the same law, the independence of the judiciary, time as the reissue in 1217, the Charter trial by jury and equality before the law. of Liberties became known as the That is only partly true. The real story Magna Carta – the big charter. So it has is much more interesting (although remained. perhaps not as satisfying), but there is space here to tell only some of it. Magna Carta was reissued in 1225 (a fairly definitive version), 1234, 1237, A document was sealed by King 1253, 1265, 1297 and 1300. One from John on 15 June 1215 at Runnymede 1297 is in Parliament House, Canberra (sometimes an island, sometimes a and that text (almost identical to the riverbank, unnamed until this event). 1225) is the most commonly quoted. It was on the River Thames between Windsor, his residence at the time So the reality is that the name Magna and Staines; a good distance from Carta dates from 1217, it is to be found Westminster which was then occupied in many documents spanning 85 years by the barons and merchants. That and not all identical, it did not create document was the Charter of Liberties much that was new but rather declared (not the Magna Carta) and that sealed existing laws and usages and it has copy has been lost. never been a “law” of the land. Its principal other party was the The document contained 63 clauses, Church, not the barons. Its significance, the first and most important granting however, lies not so much in the liberties (freedoms from royal control) text but in the principles behind the to the Church, not the barons. “Free text – the values and concepts that men” (perhaps up to 40% of the support it. population of England of between two and four million people) then had The rule of law is one of those their liberties declared in subsequent concepts and it may conveniently clauses. be described in the words of the Secretary-General of the United The Pope annulled it in August 1215 and Nations: King John repudiated it in September – so it had a very short life. “For the United Nations, the rule of law refers to a principle of
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4 www.lexisnexis.co.nz/ruleoflaw governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”
The Magna Carta has provided King John’s agreement with the barons in 1215. inspiration and support for progressive development in governance worldwide It is also said to have been the origin is uncertainty about how it came since the Middle Ages. It stands for: of the law of trusts and an early into the school’s possession, but the example of the protection of women’s best account seems to be that in the - continuation of basic law – of a rights (in that widows were not to be decades before, the school’s lawyer, framework for order and peace forced to remarry and would take who had been keeping the document fashioned by and from the people – their inheritances). It also dealt with for someone else whose family had upon which contemporary laws are a multitude of local and temporal probably acquired it from Easebourne made and rest and which is innate regulations that are of less enduring Priory in Sussex, put it into the school’s and inalienable; significance but which secured documents box by mistake. - the triumph of liberties over common freedoms. tyranny; The British Museum was prepared to - the rule of law itself – that no one Magna Carta, as it has come to be offer £2,000-2,500. The school had is above the law, no matter how understood and called upon over it independently valued at £10,000 powerful, even a monarch, and that 800 years, operates as a shield (£12,500 with seller’s commission), but justice will be done according to against tyranny, abuse of power and the British Museum would not move certain laws that are knowable in oppression of the governed. It has and the school engaged Sotheby’s. advance; become the talisman of a society After much manoeuvring (a story in - the value of democratic in which the spirits of tolerance and itself) the Library Committee of the processes in the government of the democracy reside. In the English Australian Parliament purchased it in people; common law system, it is the 1952 for £12,500 (15,672 Australian - the value of the separation of touchstone of the rule of law and a pounds) and the document is now on powers; continuing inspiration to all. display in Parliament House, Canberra. - independence and professional An area in Canberra near Old competence of the judiciary; Australia’s Magna Carta Parliament House has been designated - equality before the law and due In the 1930s the small King’s School Magna Carta Place. process (including the presumption in Bruton in Somerset in the English of innocence and burden of proof West Country acquired an original 1297 The United States of America on the prosecution); Magna Carta. In 1951 the impoverished has another original of the 1297 - trial by a jury of one’s peers; school took it to the British Museum for charter, purchased in 1983 by Ross - “no taxation without authentication, which was duly made, Perot for $US1.5 million from the representation”; with a view to sell to raise money. It Brudenell family of Deene Park in - freedom from arbitrary was formally identified as an original Northamptonshire. In 2007 Perot punishment and proportionality in of the 1297 Magna Carta, at that time sold it for $US21.3 million to David sentencing. one of only two known to exist (two Rubenstein, who has since gifted it to others were discovered later). There the US National Archive.
5 Development, the rule of law and business
How hard can it be? removed. The Generals had swapped Some 18 months ago I found myself light green combat uniforms for dark sitting in a room in the middle of grey lounge suits, and Myanmar had Yangon filled with Western diplomats, declared itself “open for business”. aid agencies, human rights NGOs, local officials and business representatives. Of all the matters that were raised and discussed in the room on that It was six months after the country had afternoon, the most compelling begun its reforms in earnest: Aung San was how to handle the tsunami of By Professor David Kinley, Suu Kyi had been released (together international funding and finance that University of Sydney with many other political prisoners); was now heading the way of a state a mini election, including National that had been, just a year earlier, an League of Democracy candidates, international pariah. I vividly recall a had just been held and Parliament was short statement made by an official sitting; and press restrictions had been from the Myanmar Chamber of (continued)
6 www.lexisnexis.co.nz/ruleoflaw Commerce that stunned everyone. He investments rules enacted; and new and the practical conditions of doing told us that during 2011-2012 more than regulatory bodies created including business – namely, the need for: US$20 billion in foreign investment had an anti-corruption commission, a (a) access to justice (a fair and been promised (a 20-fold increase on powerful committee reviewing foreign independent system of dispute the year before), and that nearly 500 investment and ownership proposals, resolution); foreign companies had registered to and a less powerful (but symbolically (b) the securing of rights to do business in the country in the past important) Human Rights Commission. property (for reasons of security of year alone (from a prior base of a mere To pursue economic development residence, business and finance); handful), mostly in the mining, energy and the establishment of the rule of (c) the protection of labour rights and construction sectors. On top of law together (as must be the case), is (freedom from discrimination and what everyone in the room knew was no easy task as Myanmar, and indeed exploitation); and the eagerness of donor agencies to all developing states (and many (d) what were loosely called, pour money into the country as soon developed ones), bear testimony. But “business rights” (that is, contractual as possible, the implications of such in Myanmar, businesses, financiers, certainty, financial fairness, and exponential increases in investment development economists, human freedom from corruption and were truly staggering – both in terms of rights advocates and government extortion). the opportunities and the challenges officials alike are all agreed at least they would offer. on these twin objectives. The two go As to the “best case scenario”, what hand in hand, simultaneously feeding I mean by the “known unknowns” is And so it has proven to be. Foreign off, and promoting, one another. Still, based on what we understand to be corporations, trade commissions, while this is all very well and easy to say, the differences between rule of law diplomatic delegations, aid agencies, putting the theory into practice in any theory and its practice – or rather, to be civil society organisations, and a welter state is a hugely difficult task, and one, more precise, what we understand to of experts and consultants of every what is more, that is never-ending. be the differences between competing kind are now competing fiercly to conceptions of the rule of law and, do work in the country. Yangon has Globalisation thereby, the resultant differences in now some of the most expensive and the rule of law their practical implementation. At hotel rooms in the world, such is the Though vast and important, the its most basic, the schism in rule of enormous demand. opportunities and challenges for law thinking traces the line between economic development in our those who see its characteristics and The capacity of much else in Myanmar current era of globalisation, are qualities being essentially (though is also being tested to its limits, mostly expected and mostly known. not necessarily exclusively) formal including, and perhaps especially, For the rule of law on the other hand, and procedural, and those who see its capacity for institutional and globalisation has thrown up issues that them as necessarily substantive and regulatory reform. The rule of law – to are less predictable and often less outcome dependent, as well as formal the extent that it existed at all in recent well known. At best, we might classify and procedural. To put this divide in decades – has had to be reinvented such issues as “known unknowns”. At the form of a pair of questions, we and reconstructed. The court worst, we are floundering in a world might ask: (1) to what extent must system (which had been thoroughly of lawlessness – that is, at least, its we invest standards of fairness and subjugated under previous regimes) absence in terms of our modern equity of result in the notion of the and an independent Bar worthy of perceptions of law and its critical role in rule of law, in addition to the fairness the title (led by a few truly heroic governance. This “worst case scenario” and equity of the process by which individuals who had raged against is no idle threat. According to the UN the result is obtained; and (2) if we are its systematic destruction over the Commission on Legal Empowerment, to accept (to whatever degree) that past decades) are in the process of most of the world’s population (some the rule of law comprises substantive being revivified; the Executive and 4 billion people, or approximately and outcome concerns, what might Legislature are learning to live with 60%) live from day to day without be their composition? The most each other and, crucially, sometimes any access to, or interaction with, a persuasive answers to these questions in opposition to each other; and new formalised legal system of any kind.1 are: to question 1, that substantive laws and institutions of governance The most significant consequences of outcomes such as fairness, equity and are sprouting up everywhere. The such exclusion, as made clear to the accountability (through transparency) currency has been floated; a new Commission through data collected are inherent to the procedural rule and comprehensive tax regime from those who are excluded, were of law (as Simon Chesterman and established; new corporate codes and a revealing mix of basic human rights (continued)
1 United Nations Development Programme (UNDP), Making the Law Work For Everyone, Report of the Commission on Legal Empowerment of the Poor (2008)
7 Robert McCorquodale, among others, The rule of law has always been critical apparent in, and to, businesses. On the have argued); and to question 2, that to the establishment and sustainability other hand, the benefit, and indeed the precise composition of such of private commercial enterprise. But necessity, of procedural propriety substantive outcomes must reflect now that the private sector plays such to the promotion and protection of the standards set by universal human a predominant role in the propagation human rights is more apparent to rights rights laws, as, notably, both Lord of economic development on a advocates, especially in countries Bingham and Lord Phillips of Worth global scale, its relationship with the in which the rule of law has been Matravers have suggested. rule of law becomes a matter of vital compromised or is absent – as is the importance to the nature as well as case in many states struggling with In the context of globalisation and the success of economic development. economic development. So, in other pursuit of economic development words, in terms of the rule of law, the for all countries – but especially Perceptions of the rule of law two sides of the debate have crossed, for the poorest – the answers to A dozen years or so ago, when the or are crossing, the divide. these questions are of fundamental most recent incarnation of the importance. In effect, they determine business and human rights debate was Certainly, there are positive signs. Here the extent to which notions of in its infancy, I suggested that when I note just some of the most notable: individual freedom and societal equity it comes to the rule of law, the two (a) the business community’s are going to be the companions to sides of the debate look for, or stress, widespread endorsement of the UN economic development, rather than different components in the makeup Human Rights Council’s 2011 Guiding its victim. Business – and especially, of the rule of law3. Put simply, the Principles on Business and Human cross-border business – is by far the argument was that business favours Rights4 that seek to demark (or most important driver of economic order, predictability and enforceability obscure) the difference between the development today. Once upon a – in other words, the procedural or human rights obligations of states and time (in the 30 years following the the human rights responsibilities of Second World War), aid (or Official corporations; Development Assistance (ODA)) was “The rule of law has (b) the broadening of concerns the greatest source of transnational that financial institutions ought now capital investment, but in the last 30 always been critical consider under the Equator Principles years ODA has been eclipsed by the (Mark III)5 when scrutinising project overwhelming (if erratic) rise of flow to the establishment finance proposals to include more of Foreign Direct Investment (FDI). and sustainability of social as well as environmental The basic statistics are conclusive standards; on this point, with global FDI flows to private commercial (c) various initiatives that developing and transition economies encourage or mandate greater (in 2010 figures) being around four enterprise.” transparency in cross-border times greater than global ODA – that business transactions, such as the is, ODA of roughly $140 billion versus formal features of rule of law. Human US Dodd-Frank Wall Street Reform an FDI inflow of roughly $600 billion2. rights activists, in contrast, are more and Consumer Protection Act 2010 Furthermore, a significant proportion concerned with substantive outcomes focusing on the financial sector, and of official aid is now directed towards – improvements in individual liberty the Extractive Industries Transparency stimulating private enterprise, by way and equality, through wider/fairer Initiative focusing on the mining of “public-private partnerships” as access to social goods. sector;6 long-term investment vehicles, and (d) the WTO-brokered 2013 through “aid for trade” initiatives driven While I think there is still some value in Bali Agreement on the facilitation by, for example, alliances between the this relative distinction, it is neither as of international trade,7 which not World Trade Organisation (WTO) and stark nor as straightforward as perhaps only underscores the legal right the World Bank, and between the trade I had originally thought. In fact – and of developing states to employ and aid branches of many national perhaps especially over the past ten trade protectionist measures when governments (practised by China as to 15 years – the significance and utility the necessity of food security so avidly as by the US). of individual protections is now more demands, it may also have rescued (continued)
2 United Nations Development Programme (UNDP), Towards Human Resilience: Sustaining MDG Progress in an Age of Economic Uncertainty (September 2011)
8 www.lexisnexis.co.nz/ruleoflaw the whole multi-lateral trade regime their suppliers; as well as host-state individual corporations alike. from sinking beneath the waves of governments shamed into improving (b) the regulatory capacity of a alternative bilateral trade negotiations; their regulation and control of local great many developing countries is (e) the growing recognition industries – as illustrated by some often pitifully inadequate or wholly throughout the jurisprudence of of the positive (albeit modestly so) compromised by corruption (or international human rights courts, outcomes following the outrage of both), such that the prospects for the such as the European Court of Human the Rana Plaza building collapse in establishment of anything like a robust Rights and the Inter-American Court of Bangladesh in 2013;11 system of the rule of law in some Human Rights, as well as in the opinions countries remain dim. of UN human rights treaty bodies, that (c) there is, among states, a states not only have extra-territorial conspicuous lack of translation of human rights obligations, but that (or even the will to translate) their those obligations could encompass extraterritorial obligations under vicarious liability for the overseas rights international human rights laws into abuses by corporations domiciled in domestic laws. The US Alien Tort their jurisdiction; 8 Claims Act and ordinary torts in (f) that – despite reports to the Western states are, in fact, exceptional, contrary – the US’s Alien Torts Claims and very restricted, remedies, rather Act 1789 (ATCA) remains a force for than the rule. holding US corporations (and foreign (d) any inflation of aid funds corporations with “substantial and by way of the proceeds of an FTT, systemic” operations in the US) to provides no guarantee that the aid account for human rights abuses reaches those that need it most. committed overseas. And, in any case, Though we might all fervently wish the jurisdictional reach of “ordinary” it otherwise, the “leaky bucket” tort law continues to extend abroad, as metaphor of aid’s continuing failure in demonstrated not only by case law in (i) and finally, the prospect (or this respect remains all too apt. the various US federal circuit appeals “possibility”) of the institution of a courts (especially California and New financial transactions tax (FTT) in the Anti-corruption: An essential York), and the UK, but also in European European Union (EU) by mid-2016, way forward Civil Code systems as well;9 which has the potential to raise enough If, however, we are to choose one (g) the express recognition – if not possibly to double (present figures are matter upon which to focus our yet clear enforcement – in international inconclusive) the EU’s aid budget – that attention that traverses all three investment dispute settlement fora, is, despite the fact that it will almost spheres of development, business of the precedence of obligations in certainly not include the country that and the rule of law, that would have international human rights law over hosts the site of Europe’s heaviest to be the combatting of corruption. investment treaty guarantees, in the concentration of “high frequency The misuse of public power for private sense that the latter cannot provide trading” (at which the FTT is principally gain has the potential to so thoroughly protection to an investor where their aimed), namely, the United Kingdom. undercut the combined means and actions contravene local human But there are negative signs too, goals of sustainable commercial rights laws that implement a state’s as evident in various flaws and enterprise, economic development obligations under international law;10 compromises associated with all of the and the rule of law, that it may render (h) global supply chains – above listed positives. For example: a state effectively ungovernable. The especially in clothing and footwear (a) there is an inherent weakness extent of the problem globally is truly manufacture – are being better in the voluntarism that underpins the staggering. managed, as the corporations (with UN’s Guiding Principles on Business reputations to lose) sitting at the and Human Rights, the financial It has been calculated, for example, head of these supply chains, are sector’s Equator Principles, and the that in the ten years to 2009, some pressured into taking some degree supply chain management agreements US$8.44 trillion has flowed illicitly of responsibility for the actions of established by industry bodies and out of the developing world. And this, (continued)
8 See Daniel Augenstein and David Kinley, “Beyond the 100 Acre Wood: In which International Human Rights Law Finds New Ways to Tame Corporate Power Overseas” (2015) 18 International Journal of Human Rights (forthcoming); see
9 necessarily, is a conservative estimate.12 This figure represents about “...now that the the same as all the FDI inflows into developing countries in the same period. Soberingly, it also represents the scale of money laundering that financial institutions in developed nations are engaged in – private sector including in many large OECD states and not just the usual suspects of small secrecy jurisdictions such as the British Virgin Islands, the plays such a Caymans and Liechtenstein – for the main reason for movement of predominant role these illicit funds off-shore is to clean them of their tainted origins. For those who suffer directly and most from bribery and corruption in the propagation – and they are mainly the poorest and/or those in developing states – the impact on their lives is nothing less than profound. Corruption – whether petty, coercive, everyday, bribery and extortion, or grand, of economic co-ordinated and consensual theft and patronage – assaults the dignity as much as the pockets of those it affects. It enfeebles them development on as individuals, it destroys the trust they have invested in their public institutions, and it grossly distorts the economy to benefit the few at a global scale, its the expense of the many. So it was in Myanmar – as in other developing states. While working relationship with there in the early 2000s, it was the weakening of the legal system and thereby the rule of law that I found most objectionable. I the rule of law don’t think this was just because we are lawyers that we mourn such a circumstance. For individuals and for society as a whole in becomes a matter developing countries, it is an indication of the desperation of their situation that the law – the first (and last) bastion against illegitimate, unaccountable and capricious ruling – is unworkable, or even worse, of vital importance that it has been hijacked and conscripted to serve its new masters, to the success giving them the veneer of respectability. Let me conclude, therefore, by saying that behind the undoubted of economic benefits that flow from a thriving private sector that propagates the spread of economic development and does so in a way that both conforms to and promotes the rule of law, there lie many dark forces, development.” the darkest of which is corruption, and all that spurs it on. It has to be on these dark forces, and on corruption in particular, that we focus our collective attentions. By seriously promoting the implementation and enforcement in domestic legal systems of the UN’s Convention Against Corruption13 (now ratified by 171 states), as well as the complementary regional treaties in Africa (the African Union’s Convention on Preventing and Combatting Corruption14 ) and the Americas (the Organization of American States’ Convention Against Corruption15 ), as well as the OECD’s Anti-Bribery Convention16 , we would take an essential step towards establishing and maintaining the rule of law in the many places where it is currently lacking.
Originally published in: David Kinley, “Development, the Rule of Law and Business”, chapter 5 in Jeffrey Jowell, Christopher Thomas and Jan van Zyl Smit (eds), The Importance of the Rule of Law in Promoting Development (Singapore Academy of Law, 2015).
12 Global Financial Integrity, Illicit Financial Flows from Developing Countries Over the Decade Ending 2009 (December 2011)
10 www.lexisnexis.co.nz/ruleoflaw Promoting respect and support for the rule of law
B4ROL Framework. The Framework will provide guidance on how businesses can support the rule of law in regions where they operate, particularly in areas where this is not well established. It is hoped that businesses will adopt this Framework in their core business activities and through social investment, public policy engagement and advocacy, partnerships and collective action.
At the B4ROL Workshop, held in Sydney, six actions were suggested to representatives of the Australian business, legal, and not-for-profit communities. The suggested business ® t the LexisNexis Rule of actions were put forward to guide Law Now event held in New discussion during the course of the AYork in September 2013, UN workshop to assist in creating a final Secretary-General Ban Ki-moon Framework that will be a go-to for announced the Business for the Rule business on how to promote respect of Law (B4ROL) initiative, to engage and support for the rule of law, along the business community in efforts to with the UN Global Compact’s Ten support the rule of law. In March this Principles and UN goals. year, Joanne Beckett, General Manager of LexisNexis Legal & Professional By James Dalley The discussion at the workshop Australia, together with the UN Global brought forth consensus that Compact Network Australia, hosted businesses are beginning to Australia’s B4ROL Workshop. The acknowledge their actions and the Workshop was just one of several held impact these may have on human around the world in a joint effort by rights, agreeing that respecting these the United Nations Global Compact rights will ultimately be in their best and LexisNexis, to serve as a critical interests. Representatives suggested resource in developing a global B4ROL that for the final B4ROL Framework Framework (Framework). to be effective, it needs to provide business-friendly, practical and The UN Global Compact is the world’s realistic steps. largest corporate responsibility initiative. As a platform, it is used to To achieve this, there also needs engage with business worldwide, to be an effective enforcement working to encourage alignment mechanism. While codes of conduct in operations and strategies to UN that are not binding or monitored are principles and goals. The initiative considered weak, some participants also works with the private sector and believed private codes, in the form of other stakeholders to develop the negotiated agreements, accompanied
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11 by independent monitoring and public reporting, could help change “LexisNexis is corporate behaviour for the better. Working with the proposed business actions, dialogue ensued around one example of how respective businesses might be in a position to support the rule of law. This can be accomplished through core business activities, strategic a business that social investment, public policy engagement and collective action. Businesses also have access to resources, can make decisions about is well placed to how they negotiate and interact with other stakeholders, as well as the ability to send out messages to the public through marketing campaigns and other initiatives. Some businesses are also in a position to support promote support the rule of law through philanthropy.
for the rule of LexisNexis® is one example of a business that is well placed to promote support for the rule of law in the Pacific region, and has successfully law in the Pacific done this in recent years. LexisNexis has made advancing the rule of law one of its core values as a global business.
region, and has Additionally, LexisNexis has been involved in a number of philanthropic projects that have promoted the rule of law in the region. In June successfully done 2014, LexisNexis New Zealand helped sponsor a three day workshop in Rarotonga, Samoa for lawyers and magistrates, organised by NZLS this in recent years. CLE Ltd and Massey University and The Cook Islands Law Society. The workshop helped to expand on the skills and tools lawyers use to achieve better outcomes for their clients, including negotiation skills and LexisNexis has the use of judicial settlement conferences and mediation. Furthermore, LexisNexis New Zealand facilitated the delivery of a donation from the made advancing New Zealand High Court to Samoa and Niue of New Zealand Report volumes weighing a total of 560kg. The donation will help in facilitating the rule of law one access to the law for practicing lawyers on these Pacific islands. of its core values as LexisNexis is also working in partnership with the Judicial Department of Fiji to create access to selected cases in both hard copy and digital formats. This will enable legal practitioners in Fiji to excel in the a global business.” practice and business of law, and assist the judiciary, governments and businesses to function more effectively and with greater transparency.
The overall consensus reached at the Sydney Workshop was that where the rule of law is absent, business cannot operate. Legal transparency, contract enforcement and regulatory compliance are essential components for businesses to conduct their operations. The rule of law acts to secure these components and so it is clearly important to business. By respecting and supporting the rule of law, businesses can assist in developing an environment for markets and societies to flourish, particularly in developing regions of the world.
LexisNexis has put together a detailed report on the discussion points and issues raised in relation to the proposed business actions at the B4ROL Workshop. This report was delivered to the UN Global Compact and will be read together with reports from B4ROL Workshops held around the world to create a finalised B4ROL Framework. The B4ROL Framework will be launched in June 2015.
12 www.lexisnexis.co.nz/ruleoflaw Australia and climate refugees
he intensity of natural disasters denominator of restrictions on the around the world, and actions of States. These principles Tspecifically in the Pacific region, require that Australia’s responsibility is likely to increase as a consequence for an internationally wrongful act of the adverse effects of climate arises when there is an act or omission change, as is the propensity of that is attributable to Australia, and climate migrants or refugees.2 The the act is inconsistent with an existing commentary that follows makes international obligation. In relation to observations about the international climate refugees there are at least protection of such refugees and three areas of international law that By Dr Curtis Doebbler1 Australia’s legal obligations in this create such obligations. regard. First, there is international climate The starting point for examining change law that is represented by Australia’s obligations must be the the UN Framework Convention on fundamental principles of international Climate Change (UNFCCC)3 and law, which form the lowest common its Kyoto Protocol4 that Australia
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1 Dr. Doebbler is a visiting professor of law at Webster University and a practicing international human rights lawyer. 2 In this comment the phrase ‘climate refugees’ is used to describe de facto the persons forced to migrate due to climate change. 3 1771 UNTS 107 (1994). 4 2303 UNTS 162 (1997).
13 has ratified together with almost all in their State of nationality or habitual disturbance of public order. Such other States. The UNFCCC includes residence, this treaty is not the only an interpretation would not only be obligations for Annex I State Parties international legal instrument offering consistent with its object and purpose to take the lead in mitigating their protection to refugees. More than 50 of the African treaty - which is to emissions of greenhouse gases, to African States have agreed to extend protect Africans forced to migrate - provide new and additional financing, the definition of persons protected but it would also be consistent with an capacity building, and access to as refugees to persons fleeing across understanding of the terms of the 1974 technology. The Kyoto Protocol international boundaries due to Convention in light of developments includes legally binding emission significant disturbances to public order among other States, such as in reduction targets. Australia has to date in their State of nationality or habitual Latin America with the Cartagena fallen short of its commitments. In residence in the Convention Governing Declaration on Refugees adopted other words, Australia has committed the Specific Aspects of Refugee on 22 November 1984.14 Moreover, an internationally wrongful act by Problems in Africa.12 This treaty UNHCR, the primary international body omission in respect of its obligations recognises that “[t]he term ‘refugee’ providing protection to refugees or under the UNFCCC. shall also apply to every person who, persons forced to flee persecution, owing to … events seriously disturbing has unambiguously accepted that the Second, international human rights public order in either part or the whole African treaty expands its protection law provides for fundamental rights of his country of origin or nationality...”13 mandate.15 of human beings. Most of these rights is forced to flee the country. are found in treaties that Australia These instruments are important has ratified, but many are also Although climate change was not to refugees fleeing to Australia in customary international law. The UN as well-understood in 1974 it would respect of the consequences of Human Rights Council has repeatedly seem logical that it should be included Australia’s responsibility for its reiterated - in studies it has sought,5 in such a broadening of the refugee failure to fulfill its obligations under in its resolutions,6 and in a panel,7 a definition where it causes a serious international climate change law and seminar,8 and in a full-day discussion9 thus international human rights law. — that climate change seriously Such an internationally wrongful act interferes with human rights.10 When “These instruments entails, among others, the following States do not fulfill their obligations are important to consequences: (1) the duty to end the under international climate change wrongful act, (2) the duty to repair the law, they can be held responsible refugees fleeing to situation as far as possible, and (3) the for the consequences of the acts duty to compensate injured parties. or omissions that affect individuals Australia in respect of These consequences can potentially anywhere in the world. Australia has the consequences of be invoked by any State or individual not fulfilled its obligations as we know whose human rights have been that damage has resulted to individuals Australia’s responsibility interfered with. The exact nature of the that in some cases has caused them to obligations created by the interaction flee their country and become climate for its failure to fulfill of international climate change, human refugees. its obligations under rights and refugee law requires further study, but at this point it appears Third, international refugee law may international climate clear that Australia may incur State be relevant to the situation of climate responsibility for an internationally refugees but perhaps indirectly. While change law and thus wrongful act when it fails to adequately it is true that on its face the UN Refugee international human protect persons fleeing their country Convention11 only protects individuals because of the adverse effects of fleeing across international boundaries rights law.” climate change. from prescribed types of persecution
5 See UN Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (Report of OHCHR), UN Doc. A/HRC/10/61 (15 January 2009). Also see Report of the Social Forum 2010, UN Doc. A/HRC/16/62 (2010) 6 See, for example, HRC Resolutions 7/23 of 28 March 2008, 10/4 of 25 March 2009, 18/22 of 17 October 2011, and UN Doc. A/HRC/26/L.33/Rev.1 (25 June 2014). 7 A panel discussion was held on Human Rights Council Panel Discussion on the Relationship Between Climate Change and Human Rights was held on 15 June 2009 at the Palais Des Nations, Geneva, Switzerland, but only an unpublished ‘Summary of Discussions’ was produced. 8 See UN Doc. A/HRC/20/7 (10 April 2012). 9 A Full-Day Discussion was held at the 28th Regular Session of the Human Rights Council on 6 March 2015. 10 See Wewerinke, M., and Doebbler, F.J., “Exploring the Legal Basis of a Human Rights Approach to Climate Change,” 10(1) Chinese Journal of International Law 141-160 (2011). 11 189 UNTS 137 (1951). 12 1001 UNTS 45 (1974). 13 Id. at art. 1, para. 2. 14 Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10, rev. 1, at 190-93 (1984-85). 15 UNHCR, UNHCR Resettlement Handbook 81 (Revised edition July 2011).
14 www.lexisnexis.co.nz/ruleoflaw Death penalty returns to Pakistan
xecutioners have been working Pakistan’s judicial system is deeply overtime in Pakistan since flawed.1 According to David Griffiths, Ethe government in Islamabad the deputy Director Asia Pacific of decided on 17 December 2014 to Amnesty International, torture is lift the six year old moratorium on frequently used to extract confessions, the death penalty which had been access to legal counsel is often denied, put in place by the previous civilian and prisoners are subjected to long government. This decision came in periods of detention without charge. 2 the wake of a deadly terrorist act in Peshawar in the same month in which Pakistanis have been suffering By Dr Claude Rakisits more than 150 people, overwhelmingly enormously the scourge of terrorism children, were killed. As of May, 131 for a decade, with some 50,000 people had already gone to the gallows; people, most of them innocent a rate of one execution every two days civilians, having been killed. Many of since the lifting of the moratorium. them have been murdered as they were attending prayers at the mosque Initially, the death penalty was limited or shopping at the local market. to those convicted of terrorist acts. And, as we saw with the heinous act However, on 10 March Prime Minister in Peshawar, children have been fair Nawaz Sharif’s government decided game as well. to extend the capital punishment to include all prisoners on death row Although the decision to re-instate the whose appeals had been rejected. death penalty is part of the Pakistan There are more than 8,000 death- government’s newly-formulated row prisoners in the country, making counter-terrorism strategy, it is Pakistan one of the world’s largest (continued) populations of prisoners facing execution.
In addition to those convicted of terrorist acts, Pakistani law mandates the death penalty for 28 offenses, including murder, rape, treason and blasphemy. Notwithstanding the questionable deterrence value of capital punishment, particularly for jihadist extremists, convictions obtained are often of dubious nature. It is a widely accepted fact, domestically and internationally, that
1 For three excellent reports by the International Crisis Group which discuss in depth the reforms that need to be implemented in Pakistan’s justice system, see: ‘Reforming Pakistan’s Police’, Asia Report No 157 - 14 July 2008; ‘Reforming Pakistan’s Criminal Justice System’, Asia Report No 196, 6 December 2010; and “Reforming Pakistan’s Prison System’, Asia Report No 212, 12 October 2011. 2 Amnesty International, ‘Pakistan: Two executions for non-terrorism offences a ‘disturbing and dangerous’ escalation’, 13 February 2015, accessible on line at http://www.amnestyusa.org/news/news-item/pakistan- two-executions-for-non-terrorism-offences-a-%E2%80%98disturbing-and-dangerous-escalation on March 25, 2015. For a similar assessment see: US State Department’s Country Reports on Human Rights Practices for 2013, accessible on line at http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper on March 25, 2015.
15 unlikely that it will have much of an impact on the militant groups terrorising the “Pakistanis have been countryside. Jihadist groups appear determined to fight the Pakistani State until Sharia law becomes the only law of the land, despite having lost many of their suffering enormously fighters since the Pakistan army launched its counter-insurgency operation in the scourge of Pakistan’s rugged tribal areas bordering on Afghanistan in June 2014. Although still able to execute devastating terrorist acts just about anywhere and anytime terrorism for a in Pakistan, these groups have nevertheless been dispersed, fractured and decade, with some weakened after almost a whole year of continuous ground combat. It is the military approach, rather than the death penalty, that remains the best 50,000 people, most hope for dealing successfully with the situation. While one can understand of them innocent Prime Minister Sharif’s political imperative for re-instating the death penalty for convicted terrorists so as to be seen to be doing something about it, by widening civilians, having been the application of capital punishment to those convicted of nonterrorist acts he has instead given the impression that his priority is to empty out the jails rather killed...Many of them than defeat the terrorists.
have been murdered This perception has been starkly reinforced not only by the accelerated rate of as they were hangings of non-terrorists since the death penalty was widened on 10th of March, but by the case of an individual, Shafqat Hussain, who was suspected of being attending prayers underage at the time he committed the murder for which he was convicted. It is only because of large international attention and pressure that the Pakistan at the mosque or government agreed on 24th of March to delay his hanging by 30 days so that his age could be investigated.3 Under Pakistani law minors cannot face the death shopping at the local penalty. The authorities subsequently confirmed that he was 23 years old at the market. And, as we time of the murder. Accordingly, Shafqat was set to be executed on 6 May. saw with the heinous Pakistan has had a lot of well-deserved international support for the horrific terrorist acts it has had to endure over the years. However, Islamabad’s decision act in Peshawar, to lift its moratorium on the death penalty not only for convicted terrorists but criminals as well has somewhat negated that sympathy. Accordingly, Prime children have been Minister Sharif needs to not only reverse his decision on the death penalty but he should have his country join the countries already committed to the UN fair game as well.” General Assembly’s December 18, 2007 resolution calling for a moratorium on executions. This would show true leadership and put Pakistan back on the right track on this issue.
Dr Claude Rakisits, who is Washington-based, is a Non-resident Senior Fellow at the Atlantic Council’s South Asia Center and a Senior Fellow at Georgetown University’s Center for Australian, New Zealand and Pacific Studies. He is also an Honorary Associate Professor in Strategic Studies at Deakin University’s School of Humanities and Social Studies. His e-mail address is: [email protected] and his Twitter: @ClaudeRakisits. His personal homepage is: http://www.geopolitical-assessments.com.
3 ‘Shafqat Hussain Case: Nisar says Victim’s Parents Under Pressure’, Dawn, 24 March 2015 accessible on line at http://www.dawn.com/news/1171595/shafqat-hussain-case- nisar-says-victims-parents-under-pressure on 25 March 2015.
16 www.lexisnexis.co.nz/ruleoflaw Rule of law, Papua New Guinea and the marketplace model
By Grace Naug, Juris Doctor Candidate at the Australian National University
A woman keeps watch over sweet plantains in a Papua New Guinea marketplace. Photo by the author.
he first thing I learnt in Tok Pisin issues of a market can act as a model - the language of PNG - was the for greater society. Twidespread term wantok; loosely translated to one talk or someone The project supported the local who speaks my language. It conveys a government to provide a stable sense of loyalty, family, community and framework for rule of law in the togetherness. Yet the underlying reality marketplace by effecting changes of this saying also feeds the corruption based on consultations with vendors; which plagues layers of Papua New to ensure that equality, accountability Guinean culture. Favouring one’s and transparency were operating in a wantok over others in addition to an space they previously didn’t have. inherent tribal loyalty inevitably leads to Methods focused on the effective a nepotistic society. delivery of services and infrastructure, technology and education to reduce In the past, roots of corruption have corruption and lead to a more stable served to displace the rule of law. In a and safe environment. place where the politically powerful and forcibly strong are elite, rule of law can Effective delivery of services be perceived as never more powerful can reduce corruption than that of force, when it is force that is The UN programme’s initial goal more regularly employed and far more was to fix issues of infrastructure in effective. This mentality, however, is order to provide the foundation of changing. services upon which the market could successfully run. In 2012, I worked on implementing a UN programme that made public The district government owns the spaces safer for women and girls. The market place and collects money from division I was involved with focused on vendors as a form of rent. In return they marketplaces. As from the Islands to are to use this revenue to maintain the Highlands, a marketplace in PNG is the marketplace and hire security. the social hub of any community; the Previously the population could not rely (continued)
17 driven by wealth, and not provided by the government. This sets a never- ending cycle in motion whereby vendors’ children are also unable to obtain education, and end up in the marketplace.
The UN’s project set up basic literacy and numeracy programmes, saving schemes, and information on rights in the marketplace for vendors. It established an elected committee of vendors to convene with the district council, and co-ordinated with a local NGO to provide free children’s “Bird-of-paradise” plants on display give a bright view to onlookers . Photo by the author. libraries on site. Access to education encouraged not only rights awareness on the government to use appropriated allaying fears of assault/robbery this but social mobility and job options. funds as such. As a consequence system ensured vendors’ fees were the market becomes dilapidated; directly transferred to the council and The project also worked with the structural issues lead to social issues. were equally applied to each vendor government to develop training For example, where toilet blocks are irrespective of tribe or connection. programmes for security which derelict and used for solicitation, the This reduced the common issue of denounced the excessive use of force, lack of clean running water leads to security turning to nepotistic ways, and reformed mid-level hiring practices outbreaks of typhoid, while uneven favouring members of their own tribe, to be based on merit resulting in a less ground susceptible to flooding causes overcharging minorities, employing corrupt market security team. catastrophic economic impacts for violence and cutting personal profits. subsistence vendors of ruined produce By using technology the middle man The countrywide lack of access to and cancelled trading days. was easily eliminated regarding fees education limits social mobility and that resulted in less temptation for retains nepotistic ties. A vast majority of Effective delivery of services limits corruption. people remain unaware of their rights the spread of corruption. A vendor and thus are disinclined to fight for without shade or running water does The broad acceptance and affordability them. Investment in national education not receive services they deserve; as of mobile phones with camera and is needed to provide for true equality such corruption becomes means to an internet connection in recent years throughout the PNG society, and an end for basic needs. A population that has also led to the establishment of understanding of the rule of law - which cannot access primary education for a number of social media groups in would diminish the power of the use of healthcare and other vital services is support of marginalised groups such as force. no doubt let down. Only when the basic HIV, youth, trans and female networks. needs of a market or a population are By using their phones to record Issues of basic services, corruption, and met, respect for the rule of law can be incidences of abuse for example with unequal access to education arguably developed. the police, and sending them to local perpetuate a continued absence of journalists, or posting these online, the rule of law in PNG. There is a distinct Technology as a means of available technology has been used move from nationals to change this. implementing rule of law to stimulate accountability of force- Although there is an importance for The programme also established wielding authorities on a wider scale. development agencies to encourage mobile phone based vendor bank and support areas of government accounts, ensuring vendors could Education as a means of to move towards this change, and deposit daily earnings before catching addressing corruption introduce efficient methods and public transport, and engage in The average vendor in PNG is partially, effective technologies, these changes cashless transactions with one another. or completely illiterate and unaware must derive from the grass-root wants Apart from financial independence of the rights they have by purchasing of the people, and be maintained by and a reduction in cash circulation their space daily. Education is largely those in power.
18 www.lexisnexis.co.nz/ruleoflaw Supporting the rule of law in Myanmar
was first introduced to Myanmar by influx of foreign entities calling on them. our customers. Sometime in early They were excited, of course, but I 2013, I started receiving queries couldn’t figure out how to effectively from lawyers and businesses in Japan, communicate or help their customers. Singapore, Korea, Hong Kong and They wanted training to build up their Malaysia about the country. Some competencies and wanted to better were about to start doing business lawyers. I met with foreign lawyers there, some were already there and and businesses that were in Yangon, plans were underway for significant executing on expansion plans, investing By Gaythri Raman, investment into the country. They millions in the country. Myanmar was Head of Rule of Law wanted to know if LexisNexis was there closed off from the world for decades & Emerging Markets, supporting the rule of law, and whether and so existing laws and regulations LexisNexis Asia Pacific we were able to help them gain clarity were not necessarily adequate for the of the myriad of rules, regulations, present-day world. Parliament was policies (or lack of them) to help as legislating furiously but we all needed they navigate their way around doing to get it right, and everyone wanted to business in Myanmar. get it right.
I set out on my first visit with a huge I was invited to a meeting with amount of excitement and a little bit Daw Aung San Suu Kyi, Chair of the of trepidation. I had read a lot about Parliamentary Rule of Law Committee the country; a lot of the literature was in August 2013.1 This amazing focused on what the country lacked encounter was an intense 30-minute in the rule of law, its shortcomings and brainstorming session about what the hardships of the past. I wondered Parliament and its MPs need to build how we could move the needle and capacity and competency, what the really make an impact. I wondered if rule of law means to the country, and the country was ready. how LexisNexis could play a role in making the laws of Myanmar accessible I remember being pleasantly surprised and consumable to its citizens. as I arrived in Yangon. The city is beautiful with a healthy vibe of old The government of Myanmar has been versus new. It is experiencing a rebirth welcoming and supportive. The Union with every single native thrust into this Attorney General’s Office is a strong fast-paced, constantly evolving new partner in our efforts to support the world, adjusting to the change. That rule of law in the country. We work first visit showed me the people of with various Ministries and officers Myanmar seemed to be enjoying the within the government where I have adventure and they were thriving. always been treated with respect and my views sought and considered as I met with local lawyers who described relevant programs and initiatives for how overwhelmed they were with the the good of the country are planned.
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1 An Afternoon With The Lady – 19, August 2013 (http://www.loyarburok.com/2013/08/19/afternoon-lady/)
19 I am regularly asked to discuss ways in which the country can “I am not consciously improve the “Ease of Doing Business Index” and ways we can work painting a rosy portrait together to foster Public Private Partnerships in various plans the of the country. I am government is currently implementing. We organised a Constitutional Awareness Workshop for lawyers in painting a hopeful Yangon (in October 2013), and we facilitated open dialogue on the constitution, the need for reform and what the legal profession can one. Those who are do to support this. It was met with overwhelming success. We were there have the will to free to debate, discuss and inspire action. move forward. There We also organised the inaugural “Business for the Rule of Law” Consultative Workshop with the United Nations Global Compact is a seeming lack of in Yangon (in October 2014), inviting the business community to discuss challenges they face in the country and ways in which the bitterness in the hand business community can strengthen the rule of law in Myanmar. We they had been dealt. had overwhelming attendance to our event and a robust dialogue on “what can we do more to help?” from the participants. There is a conscious I am not consciously painting a rosy portrait of the country. I am decision to look to the painting a hopeful one. Those who are there have the will to move forward. There is a seeming lack of bitterness in the hand they had future, to plan ahead been dealt. There is a conscious decision to look to the future, to plan ahead so as not to dwell in the sorrow of the past. I am sure they so as not to dwell in the remember and they learn from it. I hope we are all inspired by this sorrow of the past.” outlook.
I have travelled to Myanmar regularly since that first visit in 2013. Every single visit has given me renewed excitement, inspiration and hope for what is ahead for Myanmar’s future. As is the case with every developing country, she faces a myriad of challenges and has a long journey ahead of her. LexisNexis is committed to supporting her journey toward a better future.
2 Constitutional Awareness in Myanmar – Creating Capacity to Build Competencies, Asia Law Portal 2014 (http://asialawportal.com/2014/05/15/constitutional-awareness-in- myanmar-creating-capacity-to-build-competencies/)
20 www.lexisnexis.co.nz/ruleoflaw History’s most important document Symposium summary
n Thursday, 7 May 2015, I attended the 800th Anniversary of the Magna Carta event at the NSW State Library. It was sponsored by the History OCouncil of NSW, the Magna Carta Committee, the Rule of Law Institute and the State Library of NSW. Leading academics discussed the history of the Magna Carta and how one of four original copies from 1215 resides in Parliament House, Canberra. The significance of the Magna Carta is not widely appreciated and it was great to learn about the important document that gave us the rule of law, principles of democracy, and access to justice. Below is an extract from each speaker:
By Ivana Uzelac, Professor Nicholas Cowdery - Content Developer Magna Carta: 800 years young (Reports) LexisNexis The story of the document (or documents) we call Magna Australia Carta is not as straightforward as many believe. Its creation, impact and legacy over 800 years and for the future are worthy of careful study and assessment. Australia is privileged to have its own original Magna Carta in Parliament House in Canberra – but it is one of the four originals from 1297 known to exist, not all of which are identical. The story of that piece of vellum, alone, is quite intriguing. Magna Carta has passed onto legend and has acquired a significance and value that its originators could never have foreseen. It created nothing new – it was essentially an affirmation of pre-existing “good old law” of England, the common or natural law on which our society is based even now – but it was a seminal document. We continue to take from it the rule of law, the separation of powers, the value of democracy, the presumption of innocence, the onus of proof, the independence of the judiciary, access to justice, no taxation without representation and much more. It has not faded in 800 years precisely because we continue to need the principles that lie behind it, even if some of the text itself is no longer relevant to our condition.
Emeritus Professor John Hirst - British rights and liberties in Australia The appeal to British rights and liberties was potent in Australia from the beginning of European settlement – and before then in the planning of Botany Bay. Magna Carta was a symbol of these in a general way; other invocations were more pointed: an Englishman’s home is his castle; I’ll have the law on you; innocent until proved guilty, it’s a free country. None of these related to voting or representative government. They were invoked before and after there were representative institutions. After the colonies and the Commonwealth had written constitutions, people continued to think they were living under British constitution. The strength of commitment to British rights and liberties has often been overlooked by historians.
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21 Dr Rosemary Laing, Clerk of the Senate - “The significance Australia’s Magna Carta of the Magna Magna Carta was first sealed and issued in 1215 but it was reissued on a number of occasions during the 13th Carta is not widely century, including in a somewhat revised form from 1225. From these issues, 23 or 24 copies made at the appreciated time of issue have survived and been identified. These are regarded as “original copies”. It is not widely known and it was great that one of them resides in Parliament House, Canberra, to learn about having been bought for the nation in 1952. Australia’s copy is one of only two located outside of the United Kingdom. The significance of what we have is the important not widely appreciated. The 800th anniversary commemorations provide an opportunity to reaffirm the value of what Magna Carta represents to us document that today: respect for the rule of law and the role of representative parliaments gave us the rule of in constraining power by control of the purse strings. law, principles of Dr Andrew Tink – democracy, and Magna Carta’s roundabout relevance to early NSW access to justice.” While the Magna Carta was sometimes referred to by those agitating for trial by jury and an elected legislature in NSW during the 1820s, more often the cry was for those constitutional liberties already enjoyed by the mother country. The agitators’ slogan ‘no taxation without representation’ was addressed, not to an all-powerful monarch, but rather to a ministry which was accountable to the House of Commons. Indeed as the 1788 case of Cable v Sinclair demonstrates, the law applied in the convict colony was sometimes even more enlightened than English law at that time. It was during the 1680s that the Magna Carta had last seriously been invoked – against Charles II, a king who claimed to rule by divine right. And the man who invoked it, Algernon Sidney, was as a consequence, executed for treason. Ironically it was Sidney’s martyrdom which inspired and enlightened his great-great- nephew Tommy Townshend (later Lord Sydney). And it was Sydney who insisted among other things that there would be a civil court in NSW where Cable v Sinclair, in which a convict successfully sued a convict transport captain for lost luggage, could be litigated.
22 www.lexisnexis.co.nz/ruleoflaw Rule of Law Updates and Perspectives advancing together Volume 4 • Issue 1 • June 2015
General Manager, Australia Joanne Beckett
Senior Manager th Antoaneta Dimitrova 800 Anniversary Managing Editor James Dawson of Magna Carta News & Information Manager James Dalley Anne Paton is President of the New Zealand Law Librarians’ Association and a member of the Content Specialist Magna Carta 800th Committee for New Zealand. Polina Madorsky
Campaign Specialist June 2015 marks the 800th Ann Helera anniversary of the Magna Carta, an occasion not only expected Design Production Specialist to be commemorated around Dhjoanna Bohol the globe, but also one to deepen understanding of the crucial LexisNexis® Capital Monitor’s editorial team role this document has played prepares the Advancing Together, Rule of Law in our development. It is a time Updates and Perspectives from the Asia- to commemorate the individual Pacific bulletin. The team is located in the rights we enjoy today, along with Press Gallery of Parliament House, Canberra. the foundation of liberty and democracy. It is also an opportunity LexisNexis Rule of Law to strengthen human rights around www.lexisnexis.co.nz/ruleoflaw the world.
LexisNexis Capital Monitor provides The milestone will be celebrated in many nations world-wide including parliamentary, political, legislative, regulatory Australia, New Zealand, Canada, the UK, and the US. In New Zealand and judicial news and information to its subscribers as soon as it happens. events taking place on the 15th of June and throughout the year include the Attorney General’s essay competition, lighting of Auckland LexisNexis provides no warranty in respect of War Memorial Museum, public lectures, library displays and more. the contents of this newsletter and accepts no liability for any loss or damage whatsoever and The Magna Carta 800 NZ Committee is actively promoting the however arising whether directly or indirectly theme of ‘Celebrating the past; reflecting on the present; imagining as a result of access to and use of this the future’ through its website. For information, news and resources newsletter without limitation acting or failing see https://magnacartanz.wordpress.com/ Please contact the to act in reliance on any information contained Committee through the ‘Get in Touch’ link with ideas and questions. herein.
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