Legal System - Question 2

Part 1: There are three aspects of unwritten constitutions: unspecified, inarticulate, un-entrenched. Being inarticulate means that they cannot be identified in a certain manner, the content of any particular constitutional laws. Many matters of serious significance pertaining to the everyday matters of a State which does not have a written constitution are left to ongoing customs, prevalent conventions, and “Standing Orders of the House of Representatives”.

Unwritten constitutions possess a unique construction since they do not recognize any ultimate legislation through which regular enactments can be annulled. Putting it otherwise, no sequence of primacy exists within the mechanism of an unwritten constitution. In such a case, “Constitutional Laws” are no more than a “rag-bag of statutes and judicial interpretations thereof, of conventions, of the Law and custom of Parliament, of common law principle, and jurisprudence”.

Lastly, the lack of an entrenched nature of constitutional laws in fellow unwritten constitution nations such as the United Kingdom have always been accused for its unspecified material and blurry construction. The provisions under the said constitution are of a regular stature and are available to be easily modified, removed, and changed similarly to any ordinary Act of Parliament. Inferring from the said description, it can be assumed that “a written constitution is an entrenched document containing a hierarchy of all the important laws pertaining to the configuration of the state it has jurisdiction over.”

Part 2: 1. If a unitary written constitution is enacted, the same would be followed up with a continuous, unavoidable stream of cases which seek to give meaning to, and frequently muddying the instrument.

2. The absence of a written constitution means that New Zealand lacks a single, written document that has a higher legal status over other laws and rules. In this backdrop, the constitution includes in it various sources which render its nature less manageable, more opaque and unintelligible.

3. The powers of the executive, legislative and judicial branches are not clearly defined either, which can lead to ambiguity, uncertainty and possible conflict between the

three pillars of government. The flexible nature of uncodified constitutions means that they could be subject to multiple interpretations. For example, the opposing interpretations taken by the executive and judiciary regarding the prerogative power to prorogue i.e. suspend Parliament.

Part 3: The constitution of Aoteaora is a “Constitutional Monarchy”. The Queen is the Head of State. & Governor-General is her representative. Additionally, the constitution is an “unwritten” one. This does not entail the meaning that one will be unable to discover words indicating towards what exactly is included within the Constitution of Aotearoa. It rather means that there is the absence of a unitary document, such as in the USA and in many other countries globally.

Part 4: Being an unwritten document entails the meaning that there is the absence of a unitary document, such as in the USA and in many other countries globally. It does not entail the meaning that one will be unable to discover words indicating towards what exactly is included within the Constitution of Aotearoa.

Part 5: Associate Professor Kelley Quince puts forth the argument that New Zealand is incredibly harsh on people at the bottom of the socio-economic ladder. She points out that fifty percent of the population which is locked up in prison in New Zealand is there for property and drug offending. A miniscule number of Western nations send people to prison for such kinds of offences.

Part 6: The New Zealand constitution is to be found in formal legal documents, in decisions of the courts, and in conventions. It reflects and establishes that New Zealand is a constitutional monarchy, that it has a parliamentary system of government, and that it is a democracy. It increasingly reflects the fact that the Treaty of Waitangi is regarded as a founding document of government in New Zealand. The constitution must also be seen in its international context, because New Zealand governmental institutions must increasingly have regard to international obligations and standards.

Part 7: The sources of the Constitution of New Zealand include the following:

1. Entitlement powers of the Queen- Under which the Queen appoints the Governor-General who exercises her prerogative powers. The Governor-General subsequently either appoints or dismisses members of the Executive Council and Ministers of the Crown. The said powers form part of English common law. They exist independent of statutes, although statutes have the ability to stop or overrule the powers.

2. Other relevant New Zealand statutes- Such as the State Sector Act 1988, the Electoral Act 993, the Senior Courts Act 2016, and the District Court Act 2016, relating in turn to the three branches of government, as well as the Ombudsmen Act 1975, the Official Information Act 1982, the Public Finance Act 1989 and the New Zealand Bill of Rights Act 1990.

3. Relevant English and United Kingdom statutes- Including Magna Carta 1297, the Bill of Rights 1688, and the Act of Settlement 1700 (regulating succession to the throne among other matters), all confirmed as part of the law of New Zealand by the Imperial Laws Application Act 1988. These statutes also regulate the relations between the state and the individual.

4. Judicial precedents, such as judgements perpetuating the rights of the individual against the powers of the state, and determining the extent of those powers.

5. The Treaty of Waitangi- This may indicate limits in our polity on majority decision-making. The law may sometimes accord a special recognition to Māori rights and interests such as those covered by Article 2 of the Treaty. And in many other cases the law and its processes should be determined by the general recognition in Article 3 of the Treaty that Māori belong, as citizens, to the whole community. In some situations, autonomous Māori institutions have a role within the wider constitutional and political system. In other circumstances, the model provided by the Treaty of Waitangi of two parties negotiating and agreeing with one another is appropriate. Policy and procedure in this area continues to evolve.

Part 8: The legal and constitutional status of the Bill of Rights Act is as under-

  • The rights in the Act are not entrenched. “Entrenched” rights are those which are not open to being manipulated or amended by a simple majority in the Parliament.
  • Section 4 of the Act lays down that the courts lack the ability to invalidate or deny the application of a specific law owing to its inconsistency with the Bill of Rights Act. Therefore, the Parliament, in its position as the ultimate legislator has the power to pass laws contrary to the Act.
  • Under Section 7 of the Act, the Attorney-General is required to report to the House of Representatives on whether a Bill before it is contrary to the Act.

Part 9: An entrenched clause or entrenchment clause of a basic law or constitution is a provision that makes certain amendments either more difficult or impossible to pass, making such amendments inadmissible. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party.

Part 10: New Zealand already has mechanisms for the preservation of human rights of its citizens. The entrenchment of their rights then remains to be arrived at only through the enactment of a unitary written constitution for the nation of New Zealand. Entrenchment makes it difficult to bring about changes to the existing laws, and therefore, any rights which are contained in the said instrument will not be harmed solely to fulfil the whims and fancies of a member of a lawmaker. Further, since the constitution stands for the supremacy of the rule of law, having a written instrument stand as its representative would further strengthen its stance.

Legal System - Question 3

Part 1: Judicial independence is a cornerstone of the New Zealand system of government and can be defined as the autonomy of the judicial organ of the government from its legislative and executive arms. It is vital for a two-fold purpose: the maintenance of the equilibrium sought to be achieved by the Constitution Act of 1986 and the protection of the privileges and liberties identified under the “New Zealand Bill of Rights Act” of 1990.

For arriving at impartial & rational decisions, a judge requires independence, as frequently represented through the allegory of “blind justice”. An adjudication must remain free from any form of sway by factors apart from the law and the evidences and contentions presented in court. That is to say, every individual appearing before the Court can have an impartial hearing before an unbiased judge, and consequently that the people of New Zealand have faith in their Courts.

Part 2: As per the “Universal Declaration of Human Rights”, the people who form part of the judiciary possess liberties, just as ordinary citizens, of speech, faith, and assembly. Their rights are, however, subject to the condition that during the exercise of such liberties, the judges who form part of the said fraternity must ensure that their conduct remains in line with a mannerism which safeguards the pride of their chair as well as the objectivity and liberation of the judiciary. Just like the rest of the citizens of a nation.

Part 3: It is important to remember that the advocacy role of the lawyer is not simply to be a mouthpiece to one’s client because although at certain times, it is essential and the natural course which an advocate might choose to take, to argue in favour of the client’s as forcefully and as eloquently as possible, the original motive behind the same would be the persuasion of the opposition as to what is being proposed is in their interests while simultaneously being in their client’s as well. Therefore, it is essential that an advocate does not end up being a mere mouthpiece of his client and instead has the mindfulness to look at the other side of the coin and prepare to rebut the claims of the opposition which might cause harm to the client’s claims.

Part 4: It is important to remember that the advocacy role of the lawyer is not to end up as a mere mouthpiece for the client. Sometimes, it is essential. Nonetheless, it is essential to see and engage with the opposition’s viewpoint. For effective advocacy, a lawyer requires the anticipation of the opposition’s arguments adverse to the client. The client, therefore, needs to be informed so that any arguments against the client’s claims can be rebutted. If you have no answer to a point from the other side, then your client may lose the negotiation.

It is for this reason, i.e. the necessity to forestall and rebut probable arguments adverse to client’s position, that a lawyer will play “devil’s advocate”, or argue the other side of the case. Since the strong arguments against a client’s position will be undesirable for the client, there is a need to look at both sides of the coin on their behalf, to extract from the judge, a decision in their favour.

Part 5: A profession can be said to be “A disciplined group of individuals who adhere to ethical standards.” The said group represents itself as one which has distinct information as to particular know-how in addition to fluency of craft in an extensive array of learning resulting from research, education and training at an advanced level. Being a “professional” means more than simply making your living by application of special knowledge and skills. It means more than being an expert at what one does. The difference, or the added value that a professional brings is adherence to ethical standards and a code of conduct set by their professional body. So, a professional is someone who is a member of a profession.

That professional will have a high level of education, training and skill. They will have high ethical standards of conduct and their training and education will be prescribed by the professional body. Their conduct will be monitored by the professional body. In the case of lawyers in Aotearoa, the education and training of lawyers is prescribed by the NZ Council for Legal Education. Professional standards are set and enforced by the NZ Law Society.

Part 6: Rule 5 of the Lawyers: Conduct and Client Care Rules 2008 provide that a lawyer is bound to guarantee the presence of certain circumstances to ensure that there are no hindrances or clashes in the carrying out of their responsibilities. These include the presence of a close personal relationship with a third party causing the compromise of the discharge of the duties towards a client, the directive to not act further where there lies “a conflict of interest” or an appearance of a conflict of interest, and if two lawyers are in a close personal relationship with each other they must not act for different parties in a matter unless the clients of both lawyers give their informed consent to their respective lawyers acting.

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Law Assignment Help

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