Rule of law Committee fulfils watchdog function
Upholding the rule of law is a fundamental obligation of all lawyers in New Zealand, according to Austin Forbes QC, convenor of the New Zealand Law Society’s Rule of Law Committee. This message was delivered in a paper “The Relevance and Significance of the Rule of Law to New Zealand Lawyers” presented to participants at the Rule of Law Conference held in Wellington on 18 and 19 November.
This obligation upon lawyers to act as watchdogs is being fulfilled by the Rule of Law Committee. The Committee recognises that the rule of law is not a matter of everyday experience or routine contemplation for the “average jobbing lawyer”, Mr Forbes said.
“The Committee has acted as the principal proxy for lawyers in New Zealand in fulfilling their fundamental statutory obligation to uphold the rule of law.”
This express statutory obligation is found in section 4 of the Lawyers and Conveyancers Act 2006 which provides:
“Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:
(a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand.”
Mr Forbes told participants that after the Act came into force, the then chair of the International Bar Association Rule of Law Action group, Francis Neate said in a letter to the NZLS that he would be surprised if New Zealand was not the first country to impose a statutory obligation upon the legal profession to uphold the rule of law.
It is often thought that attacks on the rule of law are limited to overseas jurisdictions with autocratic governments, Mr Forbes said, warning that such confidence in our own Government may lead to the risk of “creeping” breaches of the rule of law.
“The rule of law is most likely to come under threat in times of war and other emergency, when the executive is most likely to seek, and people are most likely to be willing to grant it, exceptional powers,” Mr Forbes said.
Mr Forbes used the Canterbury Earthquake Response and Recovery Act 2010 as an example of the tensions that arose when legislation was considered to breach rule of law principles in an emergency situation.
“Criticisms from lawyers can be, and indeed were, seen as ‘nitpicking’ and ‘theoretical criticism by latte drinkers’ unaffected by the real crisis that the Act was designed to deal with.”
However Mr Forbes warned that lawyers could not afford the luxury of avoiding public criticism by not taking a stand when this hazard arose, especially having regard to the duty expressly imposed by the Lawyers and Conveyancers Act.
The Rule of Law Committee was required to be politically neutral, and liase with other bodies concerned with the rule of law in New Zealand and international bodies.
Its work consisted of making submissions, media releases and communications with the Government,in collaboration with the NZLS Law Reform Committee and the Society’s President.
Since being set up in December 2007, the Committee had commented on overseas rule of law situations in Zimbabwe, Pakistan, Myanmar, Guantanamo Bay and in particular Fiji. Closer to home it had worked on the Electoral Finance Act 2007, the Overseas investment Amendment Regulations 2008, the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 and the Canterbury Earthquake Response and Recovery Act 2010, among others.
The conference was held by LexisNexis in association with the Committee, the American Bar Association Section of International Law, and the World Justice Project.