William A Gardner

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10

March
2019

Politics

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The Magna Carta and Limits to Power

When Rulers Find the Law Inconvenient


When one takes an interest in genealogy it is hoped that there are not too many crooks, thieves and ne'er-do-wells whose genes may show up in your own DNA. At least one can hope that a few ancestors made a positive difference, even if inadvertently. This has some relevance in current Canadian politics as we face the question of whether the ruler is above the law.

King John I of England was not known as being a particularly bright individual. As the youngest son of King Henry II of England and Duchess Eleanor of Aquitaine he was not expected to inherit lands or become King. It was only due to the early death of his brothers including Richard the Lionheart that he assumed the throne of England. His father was a powerful and clever man who ruled as King of England, Duke of Normandy and Aquitaine (which included most of what is now France), Count of Anjou, Maine and Nantes, and Lord of Ireland. Evidently John did not take after his father for he lost the Duchy of Normandy and most of the other French lands, and ruled England badly and capriciously. Under his rule England became poorer and more divided with constant tax increases and brutal repression of any dissent. Most people remember him as the evil King John portrayed in the tale of Robin Hood.

Perhaps the greatest inadvertent benefit of his rule was that the Barons, due to longstanding grievances, revolted and with the help of the English Bishops (it was the Archbishop of Canterbury who wrote the first draft) forced King John to sign and seal a document ultimately known as the Magna Carta, or Great Charter of the Liberties, at Runnymede on the fifteenth of June, 1215.

The Magna Carta of England, among other issues and clauses, established two fundamental principles of law: that citizens had rights (liberties) under the law including freedom from unreasonable taxation, imprisonment and seizure of property, and that the ruling King was subject to the same laws as everyone else. Thus it established that a ruler cannot ignore the law at their convenience so as to benefit themselves or their friends.

Despite King John working hard to ignore the document, and at one point it being annulled by the Pope in Rome, plus being subject to various revisions and re-introductions to English jurisprudence over the centuries, it arguably became the basis for much of England’s statute law. The Magna Carta was specific to the feudal society of the time, but the principles within it survived. It included the famous clause, "to no one will we sell, to no one deny or delay the right or justice."

The principle that the ruler is not above the law has always been a thorn in the side of leaders over the centuries, leaders frustrated that their power is circumscribed by laws which were put in place specifically to control the power of the state and unethical leaders. These include laws to prevent the practice and spread of corruption. Today a key element of these laws is to limit the exercise of what is termed 'regulatory capture' which is the power of large organizations, or even wealthy individuals, to influence government policy and laws in such a manner as to increase their profit or shield them from liability arising from past or future actions.

Today in Canada we are experiencing our own egregious revolt against the 'ruler' with Jody Wilson-Rebould, the former Minister of Justice and Attorney General, supported later by Jane Philpott, former president of the Canadian Treasury Board, both resigning from the Liberal Cabinet in protest over the actions of the Prime Minister and members of the Prime Minister's Office (PMO) related to the apparent attempt to circumvent the very clear law related to corporate corruption, all in order to benefit SNC-Lavalin, a large Quebec-based company that provides engineering, procurement and construction services on a global basis. Specifically, the apparent attempt to influence the Attorney General (whose role as the highest-ranking prosecuting officer in Canada includes ensuring that the law is carried out without political or other undue interference) to direct or otherwise pressure the arms-length Director of Public Prosecutions to change their decision to prosecute SNC-Lavalin under the Corruption of Foreign Public Officials Act, and instead negotiate a deferred prosecution agreement, or DPA. One might liken a DPA to a get-out-of-jail-almost-free card.

For a Prime Minister who portrays himself as a feminist, a supporter of female power, and a believer in the 'rule of law', the key question here is whether he believes and acts on his espoused principles even when they conflict with his own self-interest. Additionally it is a Canadian test of the 'too big to fail' concept of corporate power and size. Will Canada pass the test? One wonders what was meant after the last election when people bragged that 'Canada was Back'. At a time when Canada is more divided and more economically stressed than it has been in many years, the outcome of the SNC-Lavalin story will resonate significantly within the national social culture.


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