An article published by the Hong Kong Free Press on 31st October 2015 forwarded by the Asian Human Rights Commission
by Basil Fernando
A two-day public display of one of the four remaining copies of the original Magna Carta was to be exhibited at Renmin University in Beijing, but at the last minute it was shelved and moved to the residence of the British Ambassador. However, it was successfully displayed at the United States Consulate General in Guangzhou, and a facsimile will also be displayed in Chongqing, China.
Meanwhile, the 800th anniversary of the Magna Carta was celebrated in St Petersburg, Russia, where a seminar was held under the title “From Feudal Rule to Rule of Law: 800thAnniversary of the Magna Carta”. At the seminar, the American Consul General referred to the Magna Carta as a foundation stone of British values of tolerance, democracy, and the rule of law. The public recognition that the Magna Carta is receiving, even in countries of the socialist bloc like in Russia and China, indicates the global influence that this 800-year-old document has gained.
The late Lord Tom Bingham, who held office successively as Master of Rolls, Lord Chief Justice of England and Wales, and Senior Law Lord of the United Kingdom, and who also authored the global bestseller publication “The Rule of Law”, stated that “the sealing of the Magna Carta was an event, that changed the constitutional landscape of this country [Britain] and, overtime, the world.”
One reflection of the Magna Carta’s global influence is the Basic Law of Hong Kong itself.
The Magna Carta was originally issued by King John of England, as a practical solution to the political crisis he faced in the year 1215, when the Barons who confronted him demanded guarantees for their security.
Among such guarantees, two articles of the Charter have gained global attention and have found themselves inscribed in many of the great constitutions of the world, including the Constitution of the United States and many of the constitutions in Asia, such as that of India. These two articles are often referred to as the golden rules. They are as follows:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send other to do so, except by the lawful judgment of his equals or by the law of the land.”
“To no one will we sell, to no one deny or delay right to justice.”
Later, the words “no free man” got extended to mean no man or woman, thus including all human beings.
It was these two articles of the Magna Carta that were gradually expanded to include all the rights enshrined in the Universal Declaration of Human Rights in 1948. All other human rights conventions today considered part and parcel of international law, can also be traced to these two articles.
In the 800 years that followed the creation of the Magna Carta, many who considered themselves oppressed utilised the two golden rules, in order to express and legitimise their rights. Many of the global protests, including the rights of many political movements struggling against authoritarian regimes, have found inspiration from these two articles.
In Hong Kong, there were massive demonstrations on 1st July 2003, when over 500,000 persons poured out onto the streets, demanding the withdrawal of the Government’s proposals relating to anti-subversion laws. The laws were subsequently shelved due to these protests.
Globally, protests against the purported anti-terrorism laws also centre on the perceived infringements of the freedoms guaranteed under these two historic articles. This contest can be summed up as a contest between state security and the personal security of all individuals. The Supreme Courts of many democratic countries have made strenuous efforts to keep the distinctions between these two concepts as clearly articulated as possible so as to prevent the infringement of basic freedoms under the pretext of preserving state security.
The one-country-two-system concept, as enshrined in the Basic Law of the Hong Kong Special Administrative Region, is understood slightly differently in Hong Kong and in China due to the differences in the way personal freedoms are understood.
To comprehend how it is perceived in Hong Kong, it is necessary to appreciate the core values of Hong Kong’s legal system which is deeply founded on these two articles of the Magna Carta. They are also the bedrock for the constitutional principles of Britain, and in fact all democracies.
China did embrace a period of legal reforms, with the view to transform “the rule of man into the rule of law”, and started a journey towards embracing the basic notions of illegal arrest, illegal detention, and guaranteeing of fair trials. However, due to historical contradictions, China has not yet graduated to a full-blown acceptance of individual freedoms.
Nevertheless, the tension between the old conception of rejecting personal freedoms altogether and the new conception is now very much a part of the Chinese legal system. It is in this context that the Hong Kong Special Administrative Region has something to offer to the mainland legal system – ways to resolve the tension, in favour of the primacy of the protection of individual freedoms.
Thus, the legacy of the Magna Carta is still one of great relevance, and in perhaps the next 100 years, when the 900th anniversary of the Magna Carta would be celebrated, there is reason to hope that the golden rules of this great charter will define the freedoms of everyone in all parts of the world.
