Mahvash Ikram
New Zealand is at risk of “sleepwalking” towards a society where the separation of powers – between the legislature, executive and judiciary – collapses and governing according to rule of law becomes a thing of the past, former Solicitor-General Una Jagose KC has warned.
And while lawyers can play a key role in preventing that from happening, they need to spread the word beyond the profession, Jagose told a breakfast meeting in Auckland, hosted by The Law Association, on Thursday.
“Speak to people in your running clubs, in your book clubs but make it interesting ….because it is the people who hold the democratic legitimacy for each of those three branches of constitutional government,” she said.
“We lawyers need to speak up more about the constitutional settings that our democratic system rests on. Because in our system of democratic government committed to the rule of law, understanding constitutional settings matters and it can’t just matter to us.”
Jagose recalled former Chief Justice Dame Sian Elias saying if it’s only lawyers and judges who believe the rule of law is a key element of our constitution, then we’re in trouble.
“I think we are in trouble as a society and a democracy, and I think it matters more than ever that we lawyers speak into that.”
To support her argument, Jagose pointed to statistics released late last year by The Helen Clark Foundation which indicated that only 30% of those surveyed trust that the government will do the right thing most of the time and 34% believe government leaders abused their power most of the time.
“We might already be on the road to a cynical citizenry,” Jagose said. “ If we don’t continue to promote and protect some of the important elements of [the constitution], we can lose that delicate fabric forever. And once it’s gone, it will be very hard to reinstate.”
Erosion of constitutional norms did not need to be a “sinister move by anybody” – rather, these norms would diminish over time because people assume the separation of powers will continue to exist without active participation.
Referring to a recent LawNews opinion piece by Roger Partridge Jagose said she agreed that lawyers must speak up about the constitutional settings our democratic system rests on.
“We need to speak outside the echo chamber of ourselves in our own professions.”
Clayton Kimpton, Dame Judith Potter, Joanna Pidgeon, Tony Herring
A supreme Parliament with limits
Parliament is supreme but this supremacy has substantive limits, Jagose said.
“[It] is a foundational principle, but it has its own rules and conventions [and] operating model [of] how it works that defines and confines its authority.”
Quoting a former Attorney-General, the late Sir Michael Cullen, she said Parliament’s supreme authority is not self-sustaining and depends on the government adhering to deep constitutional norms.
“Can Parliament conclusively define, without Māori, the meaning of that treaty that occupies the foundational place in our constitution… Do you see limits to constitutional legitimacy there? Because I do… These sorts of questions… illuminate the limits to our democracy and to parliamentary supremacy.”
The courts, she said, were not overreaching when they tested Parliament’s limits.
“Courts aren’t legislators and they regularly say so. Their task is not to govern, but to interpret and apply the law, to insist on lawfulness and to ensure public power remains within lawful bounds.”
Jagose rejected claims that the courts have been overstepping their role, particularly when they draw on New Zealand customs and values.
“I bridle at the suggestion that courts are seizing new authority and straining at their legitimate boundaries when they respond to New Zealand customs and values,” she said.
“It’s just the ordinary work of a common law legal system that we have, and Parliament understands that.”
Judicial independence does not threaten Parliament, she said. Rather, it keeps power within lawful bounds.
“We should all care deeply and talk about the separation of powers, the independence of the three branches, the legitimacy of all three of them and the connections between all three of them.”
Clayton Kimpton and Una Jagose KC
Parliamentary use of urgency
Jagose warned against the overuse of parliamentary urgency, which she believed sometimes bypassed the checks and balances that keep the separation of powers intact.
“If democratic habits start to weaken, if a government ceases to consult, relies on urgency or other procedural workarounds as a substitute for participation … then something really essential begins to erode.”
When citizens feel there is no point in objecting because they are not being heard, “the problem starts to become constitutional”.
“This is the road by which democracies start to drift towards authoritarian habits and people actually not even noticing along the way.”
But no administration had clean hands around urgency, she acknowledged. The power should be reserved for genuine emergencies, not used to sidestep scrutiny.
Tikanga ‘not a sudden innovation’
Tikanga Māori is a long-standing feature of the legal landscape, Jagose said.
“[It] has long been present in our UK-imported legal system, sometimes explicitly and sometimes hidden in plain sight,” she said, noting that the Privy Council ruled in 1901 that it was “rather late in the day” to argue there was no Māori customary law that courts could recognise.
The Supreme Court’s recent decision in R v Ellis, she said, simply continued the common law method of developing tikanga where it is relevant.
“I don’t think we’re seeing revolution or illegitimate action… We’re seeing a familiar common law method. Tikanga forms part of New Zealand law as a result of being incorporated into statutes and regulations, and it might be relevant in the exercise of discretions.”
Although I was unhappily unable to attend the event, the former SG makes a number of points made by others elsewhere. It may excite more substantive comments than I have time to formulate, but it strikes me:
1 Maori are not monolithic (nor are any ethnic group); there are differences among Maori about the meaning and place of the Treaty in New Zealand’s society and constitution- we generally only hear from those with the sharpest elbows and biggest mouths.
2 It is the role of Judges to interpret the Treaty, as a question of law, in keeping with their well established function in our system of justice. That is a reason I opposed Mr Seymour’s incoherent Treaty Principles Bill.
3 Ellis was not a case where tikanga was relevant- no question of customary law arose involving Maori – it was shoehorned into a criminal procedure question that was ill-fitting and resulted in the grand utterance of tikanga as first law, a dictum that has stirred unnecessary controversy.