Concerns raised about state law adviser
THE Public Service Commission (PSC) is calling for legislation to entrench the independence of the offices of the chief state law adviser and the state attorney.
This comes after a commission study found there were perceptions that legal opinions were not always impartial, and were drafted to please the government.
The quality of the legal advice given to government has been questioned in recent years, most recently when SA — on the advice of the chief state law adviser’s office — allowed Sudanese President Omar al-Bashir to enter SA to attend an African Union summit.
The Pretoria High Court’s ruling that Bashir — wanted by prosecutors at the International Criminal Court for crimes against humanity — should not be allowed to leave SA put government on a collision course with the judiciary, after Bashir was allowed to leave, in an apparent breach of a court order.
The Office of the chief state law adviser falls under the justice ministry. Its functions include scrutinising draft legislation for constitutionality, giving legal opinions to government and Parliament, and scrutinising all international agreements.
In the first external evaluation of the office’s efficiency, the commission found that overall the assessments of the quality of its work was good. From April 1994 to April 2014, only 26 bills or acts of Parliament had been declared invalid and unconstitutional — out of a total of 1,232 passed.
However, the report said "isolated concerns" from stakeholders had come in about the constitutionality of some legislation to which the office had given the green light, and on the quality of its advice on certain matters — prompting its study.
Some of the "respondents" to its study — departments, employees and Parliament’s parliamentary services — believed the legal opinions provided by the Chief State Law Adviser’s Office were not "always genuine and impartial".
They were drafted so as to please the leadership of whoever they were advising, said some respondents. Advice on legislation was "at times pro-executive or executive minded".
The report quotes one respondent saying: "The (chief state law adviser) … gives opinions that the members of the executive want to hear, which results in embarrassment for the president and the government".
Chief state law adviser Enver Daniels emphasised that his office performed its functions independently, according to the report.
But the commission recommended a feasibility study into establishing an, independent chief state law advisers office similar to the National Prosecuting Authority. This should include the office of the state attorney, said the report.