Magna Carta and Checks and Balances

Overview

How do you prevent a democratically elected person becoming a dictator?

Lessons from the Magna Carta

In 1215, England was ruled by the tyrannical King John. He ruled with absolute authority by reason of his position as King. He believed a King could act as he wanted and could not be constrained by anyone or any law. He thought the laws were there to serve him, and he therefore saw himself as above the law.

During King John’s reign, the people needed a way to limit the King’s power and to restrain him and any other Kings that followed him, without having a civil war to remove him. It was in 1215, in a field in Runnymede between Windsor Castle and London, that a peace treaty was agreed to between the Barons and King John. This treaty is the Magna Carta. 

The Magna Carta was a written agreement from the King that he would now follow the law and grant certain liberties to the ‘free men’ of England.

The genius of the Magna Carta is it contained a detailed system of checks and balances that put limits on the King’s power.

In Australia today we are not ruled by a King, but a democratically elected political party headed by the leader of their party. However, like King John, it is possible for those in power to manipulate the system to do what they want. It is through the lessons of the Magna Carta that Australian society today can prevent a democratically elected person from becoming a dictator.  

The Magna Carta contained Checks and Balances

As Winston Churchill wrote:

In place of the King’s arbitrary despotism they [the barons] proposed, not the withering anarchy of feudal separatism, but a system of checks and balances which would accord the monarchy its necessary strength, but would prevent its perversion by a tyrant or a fool.

The leaders of the barons in 1215 groped in the dim light towards a fundamental principle. Government must henceforth mean something more than the arbitrary rule of any man, and custom and the law must stand even above the King. It was this idea, perhaps only half understood, that gave unity and force to the barons’ opposition and made the Charter which they now demanded imperishable.

Checks and balances are mechanisms put in place to ensure the King follows the law and does not exceed his power.  They ensure the people are ruled by the law and not the whims of the King.

In the Magna Carta, some of the restraints that the King agreed to were:

• No‑one is above the law. King John agreed to follow the law of the land
  Clause 1: To all the free men of our kingdom we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs

• Punishment could only be in accordance with the law of the land through due process and not the whims of the King
  Clause 39: 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 others to do so, except by the lawful judgment of his equals or by the law of the land.

• The law is applied equally and fairly
  Clause 40: To no one will we sell, to no one will we refuse or delay, right or justice

• A Qualified and Independent Judiciary, without improper influence or corruption
  Clause 45: We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well
  Clause 17: Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place.

The power of the Rule of Law to stop Dictators and Tyrants

Importantly, the story of the Magna Carta does not end there. Subsequent checks and balances were easily overridden and ignored and King John annulled the Magna Carta just three months later. The Magna Carta was reissued six times by subsequent English Kings, then reaffirmed in England over and over again in the Petition of Right, Habeaus Corpus Act and the Bill of Rights. This highlights that just having the mechanisms in place does not guarantee the King or whoever is in power will rule lawfully.

If you want to stop a democratically elected person becoming a dictator, you need to ensure the Rule of Law is upheld and protected.

For the Rule of Law to have a meaningful operation, it needs two things. Firstly,  the mechanisms in place to ensure the power is restrained and secondly, active citizens who hold those in power accountable for their actions. 

In Australia, we have adopted many of the checks and balances and legacies of the Magna Carta. Importantly, we are governed by the Rule of Law, where no one is above the law and laws are applied equally and fairly. This is facilitated by an independent and impartial judiciary, freedom of the press, freedom of speech, and the Westminster system of Government.  As in the times of Magna Carta, those in power must act lawfully with checks and balances on their power.  Where new laws are introduced that give more power, especially during times of an emergency, there must be sufficient checks and balances to place limits on their power. Furthermore when those in power act outside of the law, an independent and impartial arbiter must administer justice according to the law.  These mechanisms are crucial in ensuring the power of our democratically elected leaders is restrained.

These mechanisms do not operate by themselves but require active and engaged citizens. There also needs to be a general acceptance in favour of the Rule of Law, and therefore an agreement that there will be times when it is necessary to fight for it. It is through promoting, upholding, and protecting the Rule of Law that you can stop a democratically elected person from becoming a dictator. However, in the last 25 years, governments have generally neglected to teach their communities about the Rule of Law’s importance. You cannot expect anyone to fight for something which they do not understand nor believe in.