STATE ADVOCATE ACT

CHAPTER 603

STATE ADVOCATE ACT

AN ACT to continue implementing reform in the Justice Sector (Attorney

General).

29th July, 2019 *

18th December, 2019 †

1st October, 2020 ‡

ACT XXV of 2019.

(1)

The short title of this Act is the State Advocate Act.

(2)

This Act shall come into force on such date as the Minister

responsible for justice may by notice in the Gazette establish, and

different dates may be so established for different provisions and

different purposes of this Act.

(3)

A notice under sub-article (2) may make such transitory

provisions, without limitation, as appear to the Minister to be

necessary or expedient in connection with the provisions thereby

brought or to be brought into force.

(1)

The State Advocate shall be the Chief Legal Advisor

to the Government and shall have the judicial representation of the

Government in judicial acts and actions where the law does not

provide that such representation shall vest in some other person or

authority.

(2)

In giving legal advice the State Advocate shall act in the

public interest and shall safeguard the legality of actions of the State.

(3) Where under any law the State Advocate is to act or exercise

any power in his individual judgment he shall not be subject to the

direction or control of any other person or authority.

(4)

The officers of the State Advocate when acting under his

direction in anything in which he is to act in his own individual

judgment, shall have the same protection at law as if the action done or

omitted to be done were an act done or omitted to be done by the State

Advocate.

When a vacancy occurs in the office of State Advocate the

procedure for the appointment of a State Advocate shall be the

following

(a)

The Minister responsible for justice shall

establish an Appointment Commission, consisting of a

*Legal Notice 174 of 2019.

†Legal Notice 329 of 2019.

‡Legal Notice 386 of 2020.

STATE ADVOCATE

Chairperson and not less than two (2) and not more than four

(4) members, to be composed of persons who in his opinion are

respected and trusted by the public and are technically qualified

to examine whether candidates for the office of State Advocate

have the appropriate qualifications and other merit and

suitability requirements to occupy the said office.

(b) The Appointment Commission shall issue a

public call for applications open to persons who have the

necessary qualifications and experience required to be

appointed to the office of State Advocate.

(c)

After examining the candidates the Appointment

Commission shall submit a report to the Prime Minister through

the Minister responsible for justice expressing its views on the

eligibility, suitability and merit of the candidates. In the said

report the Commission may either limit itself to giving an

opinion on the candidates or it may rank them in order of

preference.

(d)

In deciding upon his recommendation to the

President in terms of article 91A of the Constitution for the

appointment of the State Advocate the Prime Minister shall

give due consideration to the recommendations of the

Appointment Commission.

(1)

There shall also be a Deputy State Advocate and

other officers of the State Advocate, who shall exercise and perform

all such powers, functions and duties as may be delegated or assigned

to them by the State Advocate.

(2)

In the exercise and performance of the powers, functions

and duties delegated or assigned to them as aforesaid, the Deputy State

Advocate and other officers of the State Advocate shall, unless the

contrary intention appears, have the same obligations and enjoy the

same protection and privileges as are by law imposed on or given to

the State Advocate.

(3)

The Office of the State Advocate is hereby designated as a

Government agency and the provisions of sub-articles (5) to (9) shall

apply to the said agency.

(4) The State Advocate may also act through such contractors

as he may from time to time appoint

Provided that such contractors shall at all times act in

accordance with such instructions as may be given to them by the State

Advocate.

(5)

(a)

The Office of the State Advocate shall as a

Government agency be headed by the State Advocate and shall be the

medium through which the State Advocate carries out his functions

according to law.

(b)

The said agency shall be a body corporate having a

distinct legal personality and shall be capable of entering into

contracts, of employing personnel, of acquiring, holding and disposing

of any kind of property for the purposes of its operations and of suing

and of being sued.

(c)

The legal and judicial representation of the Office of

the State Advocate shall lie in the State Advocate or in any other

person who he may designate.

(d)

The said agency shall enter into an agency

performance agreement with the Government whereby the funding of

the agency as well as the tasks to be addressed and achieved by it are

determined

Provided that the Minister responsible for the agency shall,

subject to the provisions of any law to the contrary, be entitled to give

directions in writing to the agency and the agency and its head shall be

bound to observe such directives

Provided further that the provisions of the above proviso

shall not apply where the State Advocate is in accordance with any law

to act in accordance with his own individual judgement, in which case

the agency is to act according to the sole directions of the State

Advocate.

(6)

The State Advocate and the employees of the said agency

shall abide by any Code of Ethics applicable to public officers and

shall, subject to any law to the contrary, have the same obligations

thereunder

Provided that the State Advocate shall with the concurrence

of the Minister responsible for the agency draw up service values and

Codes of Ethics in respect of the agency to supplement any public

service Code of Ethics.

(7)

(a)

The State Advocate shall keep proper books of

account in such manner as the Minister responsible for finance may

from time to time direct. Such accounts shall be audited by an auditor

appointed for the purpose by the State Advocate with the concurrence

of the Minister responsible for finance and shall moreover be subject

to audit by the Auditor General.

(b)

The financial year of the Office of the State Advocate

shall commence on the 1st January and shall end on the 31st

December

Provided that the first financial year shall commence upon

STATE ADVOCATE

the coming into force of this sub-article and shall end on the 31st

December of the following year.

(c)

The State Advocate shall not later than six (6) weeks

after the end of each financial year present to the Minister responsible

for the agency the audited accounts together with a report on the

workings of the agency, which report shall state the manner in which

the agency has operated to fulfil its functions and its plans for the

future.

(d)

The accounts and report mentioned in paragraph (c)

shall be laid on the Table of the House by the Minister not later than

six (6) weeks after its receipt, or when the House is during the period

not in session not later than the second week after the House resumes

its sittings.

(8)

(a)

The Prime Minister may by direction detail a public

officer for duty with the said agency for such term and under such

conditions as may be established in relation to the officer so detailed.

(b)

The Prime Minister may at any time revoke any such

direction.

(c)

Where any officer is detailed for duty with the

agency such officer shall, during the time in which such direction is in

force, be under the administrative direction and control of the State

Advocate, but shall otherwise remain, and retain all rights and duties

as, a public officer, and for the purposes of any law relating to

government service pensions, service with the agency shall be deemed

to be service with the Government

Provided that no account shall be taken in assessing the

pensionable emoluments of such officer for the purposes of any law

relating to government service pensions of any allowances, bonuses or

gratuities paid to such officer by the agency in excess to what he is

entitled to as a public officer

Provided further that during the time in respect of which

such officer is so detailed to perform duties with the agency, the terms

and conditions of his service shall not be less favourable than those

which are attached to his appointment under the Government during

the period aforesaid. Such terms and conditions shall not be deemed to

be less favourable merely because they are not in all respects identical

with or superior to those enjoyed by the officer concerned at the date

of such direction, if such terms and conditions, taken as a whole, in the

opinion of the Prime Minister offer substantially equivalent or greater

benefits.

(9)

Any public officer serving exclusively in the Civil,

Constitutional and Administrative Law Unit or in the Legislation Unit

of the Office of the Attorney General on the date of the coming into

force of this sub-article shall, from such date, be deemed to have been

detailed for duty with the Office of the State Advocate as a

government agency under the provisions of sub-article (8), and

thereupon the provisions of the same sub-article shall apply to such

officer who shall continue to be detailed for duty as aforesaid until

such time as the Prime Minister may revoke such direction as provided

in sub-article (8)(b)

Provided that where the Prime Minister revokes any

direction as aforesaid the officer in whose respect the direction is

revoked shall retain such grade in the public service which he held

immediately before being detailed for duty with the Office of the State

Advocate as a government agency by virtue of this article or shall

occupy such other higher grade which he would have occupied had he

not been detailed as aforesaid.

(10) On such day as may be appointed by order of the Minister

responsible for justice, the Office of the State Advocate shall take over

all employees, rights, duties, undertakings, contracts, causes, orders,

judgements, documents and working arrangements which,

immediately prior to the appointed day, shall pertain to the Office of

the Attorney General Agency and relate to the Civil, Constitutional

and Administrative Law Unit, or with the Legislation Unit of the

Office of the Attorney General Agency, in such manner and according

to such time-scale as the Minister may designate.

(1)

The State Advocate and the Deputy State Advocate

and other advocates or legal procurators, performing duties as officers

of the State Advocate, shall have power to administer oaths.

(2)

Wherever a law provides that an oath is to be taken before

the State Advocate, that oath may also be taken before the Deputy

State Advocate or before another officer of the State Advocate as

delegated by the State Advocate.

No nullity or other legal defect shall ensue when a document

relating to court proceedings which is to serve as evidence of any

order, consent, approval or direction given by the State Advocate is

signed by the Deputy State Advocate, or by an officer of the State

Advocate on behalf of the State Advocate.

(1)

Where any law, other than a law of a criminal nature,

provides that any act may be done by the Attorney General, that act

may also be done by the State Advocate with the authorisation of the

Attorney General. Without prejudice to the validity of the said

authorisation as from the time when it is given, notice of the

authorisation shall be given in the Gazette.

(2)

The Minister responsible for justice may make regulations

providing for any matter relating to the better implementation of the

provisions of this Act and, without prejudice to the generality of the

STATE ADVOCATE

foregoing, may also by regulation amend any law, other than the

Constitution and any other law of a criminal nature or relating to

prosecution powers or a law which regulates the conditions of service

particular to the holders of the offices of Attorney General or of State

Advocate, for the purpose of substituting any reference to the Attorney

General with a reference to the State Advocate or of adding any

reference to the State Advocate to a reference to the Attorney General or

vice-versa.

The expression "Attorney General", wherever it occurs in

the Members of the Judiciary (Pensions) Act, shall for all intents and

purposes of law, be deemed to also include a reference to the person

holding the office of State Advocate appointed in terms of the

provisions of article 91A(1) of the Constitution and any reference to

the "Office of the Attorney General" shall also be deemed to include a

reference to the Office of the State Advocate.