Thursday, June 20, 2019

Guy Steward: Hong Kong, NZ, and the Common Law

The people of Hong Kong have an understandable concern for the future of their state, and especially of the tradition of English common law which forms most of their legal system. The young people there seem to highly value it.

So, it’s timely to discuss the implications of changes to that law wherever it has been found. That discussion could also focus on what appears at times to be a lack of awareness of and appreciation of common law and its history in New Zealand.

In fact, we’re connected to it through the Third Article of the Treaty of Waitangi.
For this agreed arrangement therefore concerning the government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England. (translation of the Maori version)
The great statesman, Sir Apirana Ngata,—who as a lawyer would have understood this well - reminded New Zealand how that because the Queen had been “desirous to establish a Government with a view to avert the evil consequences to the Maori people and to the Europeans living under no laws”, she stated in the second part of the third article that she “extends to the Natives of New Zealand her Royal Protection, and imparts to them all the rights and privileges of British subjects” (the word “privileges” being translated “duties of citizenship” in the Maori version).

Ngata said that “the second part of the article…is the most important part of the Treaty of Waitangi.…This article states that the Maori and Pakeha are equal before the Law….There is one law for Maori and for Pakeha, the Treaty of Waitangi ordained it so.”

The third article of the Treaty in its reference to “rights” indicated clearly a direct link to such other eminent documents as Magna Carta, the Petition of Right, Habeus Corpus, and the 1689 Bill of Rights, which the American Constitution also drew much inspiration from.

A bit of background reading reveals that these documents and agreements emerged from centuries of development and conflicts and helped form a suite of legal principles which was then handed down to citizens, their descendants, and anyone else who took on or retained those principles, including Hong Kong and New Zealand. The tradition is one of freedom of speech, freedom of religion, freedom of movement, and due process including habeas corpus and jury trials. Long before some of its ideas were borrowed by the UN and the EU or inserted into various constitutions around the world (often sadly just as window-dressing), it had developed into something unique. From when various early groups in England gathered around their shire moots to sort out their affairs from at least the seventh century on to the point where it was accepted that no one - including the monarch - could assume rights above the law of the land, this tradition was guided and moderated by simple common sense. “The common law is nothing else than common reason, and common reason demands that one can put one’s trust in others….”. (Montague, as footnote in Plucknett, A Concise History of the Common Law, 1956, p 579 n2)

And this common law or lex non scripta (unwritten law) plus much of the lex scripta (written law) was considered by many to be based on something called the “eternal law” or Lex Aeterna. The English jurist, judge, and politician Sir Edward Coke further referred to “the moral law…the Law of Nature.” Others spoke similarly. Where we are at now with this idea is perhaps something for the experts to debate. But to us amateurs, the phrase “common sense” just about sums it up. And it takes a long view of history to see that common sense works better than tyranny.

Though the common law has sometimes morphed with the passing of time, especially over the last century, taking various turns, and not necessarily always being perfect - and though it’s a fair challenge to understand it in detail, it would be a big mistake to disregard it. And it could do us all good to have at least a basic working knowledge of it and of some of its history.

“The achievement of the Common Law…was slowly to elaborate a social system based on the dignity of the human personality and the intellectual and moral autonomy of Everyman.” (Current Legal Problems, p.57, 1948, cited in Keeton, 1966, p. 219).

“The theory of the Common Law was that judges…. discovered and elucidated principles, founded upon reason, which had always been there.” (Keeton)

Those principles, arguably, are still applicable.

Guy Steward is a teacher, musician, and writer.

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