Lawyers must not just downplay the government institutions while discussing legal issues, she says
Lawyers are obliged to uphold rule of law, but the institutions that share the power in Aotearoa New Zealand’s system of government according to law should not be downplayed, according to Una Jagose KC.
Having been a public servant for decades, she has observed the way the rule of law can have different meanings for people. For the former Solicitor-General and now Clifton Chambers barrister, understanding of the rule of law is vital to the commitment to uphold it.
Jagose worries about a future where citizens struggle to see the rule of law in effect and become cynical in the process.
“If the citizenry starts to get cynical, doesn’t think it should or it cannot participate in representative democracy processes then I worry for the future. I don't think we're there in New Zealand, but we don’t have to look far to see fracturing of society that comes with that cynicism”, she told NZ Lawyer. “The isolation that it might cause to different sectors of our society will just not be good for social cohesion as a whole.”
Jagose pointed out that adherence to the rule of law often depends on “one individual or body understanding their role”.
“It's quite a thin part of our constitutional conventions in this country. Without a written constitution, at times it falls to particular roleholders - such as Solicitor-General - understanding what the rule of law requires. That might be a shaky basis for the future”, she said. “I don't know what the future should look like, and I am fond of the agility in our constitutional settings. But I worry about how people can develop this real cynical attitude if they can't see the controls on government institutions working”.
The legal profession in particular possesses a professional obligation to uphold this rule of law; thus, Jagose believes that lawyers must not just downplay the government institutions while discussing legal issues.
“As lawyers, we've got to be careful about how we disagree with something that comes out of any of the parts of our government – the three branches: Parliament, executive Government or the courts”, she told NZ Lawyer. “Disagreement is fine, and actually necessary in a healthy democracy. As lawyers, I would say our obligation to uphold the rule of law also includes not lightly doubting the legitimacy of any of those three institutions”.
When asked what important lessons she has learned in her career so far that she will bring with her to the bar, Jagose called for lawyers to not focus only on legal issues, but remember the people involved in those issues.
“There's so many times and situations that I've been in where I've learned that it's too easy for lawyers to forget about all of that perspective and the people around them, and focus on what the legal issue is. We are always dealing with people, and often at very vulnerable points in their lives”, she told NZ Lawyer. “Having people’s lives in our hands as lawyers is a great privilege and brings great obligations. How we deal with not just our own clients but also opposing lawyers and their clients is an important part of our professional duties to the law”.
Jagose highlighted a key lesson she learned from a former chief justice.
“I remember hearing then-Chief Justice Dame Sian Elias saying at the end of a hearing that lawyers should shake hands and greet each other. And I've always done that because I think it's part of our professional courtesy”, she said. “Yes, our functions are often adversarial, but we don't need to fight”.
