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Issue #1699      August 26, 2015

Long established liberties under threat

We have recently been confronted in Australia with an attempt to get Cabinet to agree to the Minister for Immigration and Border Protection being given the authority to remove the citizenship from Australians with dual nationality, if they are guilty of terrorism, supporting terrorism or are suspected of terrorism. It is also being discussed whether sole nationals, who may have the right to citizenship of another country, can also have their citizenship removed. This is to be done based on security reports. The law courts are to be kept out of the matter except there can be a review of the process of citizenship removal by a judge.

British Library reunites Magna Carta copies for 800th anniversary.
British Library reunites Magna Carta copies for 800th anniversary.

“Potentially hundreds of Australians could be stripped of their citizenship and then deported, without recourse to the courts as to the merits of their defence, once the Australian Parliament passes tough new counter-terrorism laws with the support of the opposition.

“On the same day that the opposition confirmed it backed extending citizenship cancellation to terrorist fighters, Immigration Minister Peter Dutton revealed security agencies were combing through the case files of Australian dual citizens at home and abroad regarded as sympathetic to terrorist organisations, involved in fighting with them, recruiting for them, and/or financing such organisations and their activities.”

[canberratimes.com.au 04-06-2015]

This appears to be aimed at the Muslim community, which is now being subjected to a level of harassment not experienced before in this country. The strongly maintained silence of the government regarding the Reclaim Australia rallies was noted, as was the clumsy attempt to hide the intent of [Liberal Senator Cory] Bernardi’s halal food enquiry by including kosher and organic certification. No one was fooled.

Religious toleration and the rule of law have had a rocky history in the British and Australian past, but there are major features of our legal and constitutional system worthy of respect and protection. The evolution of a civilisation which involved the rule of law, the exercise of restraint upon the power of the ruler, and acceptance that people have basic rights, took many years to achieve. Varieties of Roman and feudal law, rooted in the pagan past, still dominated Europe, including England, for more than 1,000 years.

Royal attempts to prevent change

From within this difficult internal climate, two great achievements were realised. These were the Magna Carta of 1215 and the Glorious Revolution of 1688.

In the 1200s, King John, successor to Richard the Lionheart of crusader fame, was struggling for control with his rebellious barons. Calling on papal authority for support against them, he made England a tribute-paying vassal of the Pope, but still he was not satisfied. Not enough support was forthcoming.

This led to a little-known incident in English history that could have potentially created an upheaval that would have changed the course of history. Gabriel Ronay in The Tartar Khan’s Englishman gives an account of the secret mission that King John sent to Mohammed al-Nasir, the Emir of Morocco. According to the mediaeval historian Matthew Paris, “The envoys were instructed by John to tell the great king of Africa, Morocco and Spain that he would voluntarily give up to him himself and his kingdom, and if he pleased he would hold it as tributary from him; and that he would abandon the Christian faith ...”. He also offered to help the Emir in his struggle against the King of Aragon in the contest for Spain.

The Emir was not impressed. After closely questioning the delegation, he had a strong response. “Your king,” he told the ambassadors, “was a petty monarch senseless and growing old. He was a man of no consequence quite unworthy of any alliance with a Muslim ruler like himself.” He understood that John was a tyrant and totally rejected him.

The rise of the rule of law

Foiled in his last attempt to get external aid, King John was forced by his barons to sign the Magna Carta on June 15, 1215 at Runnymede. It included protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown. John immediately tried to back out of it and it was annulled by Pope Innocent III two months later, leading to the First Barons’ War. Re-issued several times, the definitive version is from 1225.

Magna Carta has survived down the centuries because it asserted one fundamental principle, that of the rule of law. The sovereign was constrained by law, and the whole community came under its framework. This is exemplified by its provisions.

“The thirty-ninth by sequence ... declares that ‘[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 other way ... except by the lawful judgement of his equals or by the law of the land’; the fortieth, ‘To no one will we sell, to no one deny or delay right or justice ...’ ”

[Inside Story, 05-06-2015]

The leading early 17th century jurist and Member of the House of Commons, Edward Coke, put forward the Petition of Right in 1628 which expounded the subjects’ rights with respect to the monarchy, including protection against arbitrary imprisonment, freedom from taxation without parliamentary representation, and Due Process of Law.

Divine right

The divine right of kings claimant, Charles I insisted he had “sovereign power” to rule the country but Coke reminded the members of Magna Carta which protected subjects from arbitrary royal decrees. The Civil Wars of the 1640-50s and the beheading of Charles I, the republic and then the struggle against the divine right claimant James II, were all informed by these ideas. The 1688 Glorious Revolution, which established the system of constitutional monarchy which still prevails, came from these foundations.

The 1689 Bill of Rights which recognised the significance of the Magna Carta, “proclaimed fundamental liberties, including freedom of elections, freedom of debate in Parliament, and freedom from excessive bail and from cruel and unusual punishments.”

It also barred Roman Catholics from the throne, as the threat of a restoration of divine right monarchy, as almost occurred under James II, was a danger to peace.

Threat to our way of life

The suggestion that a Minister of the Crown, namely Dutton, should be able to impose the punishment of exile upon free citizens of Australia and presumably if they cannot be deported, their incarceration in detention camps like those used for asylum seekers is an assault upon traditional liberties. It is an attempt to remove the basic provisions of the Magna Carta, and by exceeding executive power, the 1689 Bill of Rights.

This has shocked some members of the government itself. One former Howard-era minister made her opposition very plain: The former Howard government immigration minister Amanda Vanstone has said she despaired to learn that people on her side of politics thought it was acceptable for a minister to revoke an Australian citizen’s rights “in the blink of an eye”. In a strongly worded intervention in the debate on forthcoming counterterrorism laws, Vanstone accused her former colleague, Prime Minister Tony Abbott, of throwing the Westminster system of cabinet government out the window. She also warned that “cutting down our democratic protections to get at the enemy is profoundly dumb”.

The muted response of the opposition on these matters, so basic to our way of life, suggests there is indeed a profound threat to liberty in Abbott’s Australia.

The Beacon

Next article – A tale of two histories

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