So Many Questions about the quality of legal advice

31 July 2016 - 02:00 By Chris Barron

A recent report by the Public Service Commission raises questions about the quality of legal advice given to the government. Chris Barron asked chief state law adviser Enver Daniels...Why is poorly drafted legislation sent to parliament?The legislation isn't poorly drafted.A lot of it doesn't pass constitutional muster. Isn't that an indication of legislation that is poorly drafted?No, that is not correct. Since 1994 this office has drafted approximately 1400 laws, in excess of 300000 clauses. At the last count 21 clauses were set aside by the Constitutional Court.The report mentions 26 bills and acts of parliament being declared invalid and unconstitutional.They got it wrong. They got it completely wrong. There were two laws which were struck down in their entirety because of the process followed by parliament. And this week the Constitutional Court again struck down a law because of the public participation process, which it deemed was insufficient. We have no control over that.story_article_left1Should bills that do not pass constitutional muster go to parliament?Only the Constitutional Court can determine finally the constitutionality of any law passed by parliament.You have the knowledge to raise red flags about the constitutionality of draft legislation, don't you?That happens all the time in my office. Every bit of legislation is tested. Where we think it is not going to stand constitutional muster we refer it back to the executive.So why did the access to information bill go to parliament?What was wrong with it? There was one clause that the Constitutional Court deemed unconstitutional.Legal experts had submitted that the bill was unconstitutional.Every bill submitted to my office undergoes extensive peer review. It comes to me for final approval. I then look at it, interrogate it, discuss it with the team. If collectively we're satisfied, we'll certify it and send it to parliament.So why does legislation that has unconstitutional clauses go to parliament, as in the case of the access to information bill?Lawyers will have different views. Some will say that they think the bill is unconstitutional. Where that happens their views are often sent to me so that I can look at it, interrogate it and see whether I agree with it. In some instances we have accepted suggestions and recommended to parliament that they accept them. But that doesn't change the basic constitutionality of the bill.Why are there cases where experts warn that a bill is unconstitutional and yet it still goes ahead?Parliament makes its decision. We in our office have to certify the bill or tell parliament we can't certify it because it is unconstitutional.So why do you certify laws that are found to be unconstitutional?I've indicated to you that 21 clauses out of about 300,000 clauses were struck down as unconstitutional, and I don't think that's a bad record. We do our work independently of the executive and base our advice on research and our consideration of the matter ... We certainly don't do things to please the executive Some have been fairly major, haven't they?Some of them are, because they deal with constitutionality.Did you advise the government that legislation setting up the Hawks was unconstitutional?We in fact amended the legislation considerably from the first draft ...After it was taken to the Constitutional Court?Yes. It went to the Constitutional Court so that the constitutionality of the law could be tested.Wouldn't it save a lot of time and ... money if you advised ministers about problems before they are taken to the Constitutional Court?You're assuming that we don't advise the ministers.Are your opinions drafted to please them?We do our work independently of the executive and base our advice on research and our consideration of the matter ... We certainly don't do things to please the executive.story_article_right2Did you advise the government it could allow [Sudanese President Omar] al-Bashir into South Africa?Yes, I was one of the persons who advised on that.Isn't that an example of advice being tailored to please the government?Not at all. I don't want to discuss that matter because an application has been made to the Constitutional Court for leave to appeal the Supreme Court of Appeal's judgment. But the SCA did confirm one aspect of my advice: that in international customary law a head of state enjoys immunity from arrest.Even if there's an international warrant out for his arrest?Yes, generally. But I don't want to comment on it because it is the subject of a Constitutional Court application for leave to appeal.Did you advise the government that he could leave the country in breach of a court order?I was not involved in that, I wasn't even in the country at the time.Doubts have been raised about your independence. Are you independent?We have functional independence.So why did you try to stop the public protector's investigation of Nkandla?I didn't.She stated under oath that you did.She did, but I'm afraid she was mistaken.Were you present when she met ministers of the security cluster?I advise in my capacity as a lawyer, and I don't want to discuss matters in which I had advised the government.

This article is reserved for Sunday Times subscribers.

A subscription gives you full digital access to all Sunday Times content.

Already subscribed? Simply sign in below.

Registered on the BusinessLIVE, Business Day or Financial Mail websites? Sign in with the same details.

Questions or problems? Email or call 0860 52 52 00.