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Veteran human rights lawyer George Bizos argues in a submission to Parliament that the Protection of State Information Bill is unconstitutional on several counts.
“The current draft of the bill, as it stands, runs contrary to and indeed threatens many of the fundamental values and principles enshrined in the Constitution,” he writes.
Bizos, from the Legal Resources Centre's constitutional litigation unit, prepared the submission on behalf of human rights organisation Passop.
It is one of 293 written presentations sent to the National Council of Provinces' ad hoc committee processing the bill after it was passed by the National Assembly last year amid a public outcry.
Nelson Mandela's former defence lawyer enumerates seven flaws in the bill, starting with the absence of a public interest defence.
“We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in public interest.”
In Bizos's view, the bill would undermine the provisions of the Promotion of Access to Information Act (PAIA) of 2000 and its status as the supreme law giving effect to section 32 of the Constitution, in which citizens' right to access to information held by the state is enshrined.
PAIA makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime, or the existence of imminent public safety risk or environmental risk.
Section five of PAIA also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions.
Yet, the Protection of State Information Bill in section 1(4) explicitly states that “despite” section five of PAIA, it trumps any other law relating to classified information.
Writes Bizos: “Any proposed legislation that seeks to displace the clear provisions of PAIA also violates section 32 of the Constitution and is thus unconstitutional.
“The bill's attempt to trump PAIA, a constitutionally-mandated statute, is a further indication of the bill's overall unconstitutionality.”
He notes that those who defend the absence of a public interest defence have argued that such a clause was unnecessary because the bill criminalises wrongful classification.
The argument is wrong, Bizos says, because the draft law does not allow those prosecuted for disclosing state information to argue in defence that it was wrongly classified to begin with.
“This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistleblowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms.”
Constitutional law expert Pierre de Vos said he agreed with Bizos because the bill was drafted in such a manner as to criminalise disclosure of classified information, regardless of whether the classification was lawful.
Bizos also faults the bill for allowing the minister of state security to confer the power to classify information on other ministers.
This usurps the principle of accountability enshrined in section one of the Constitution because it removes the oversight of a particular function from Parliament, and places it with the delegating minister.
He goes on to say that the legislation runs counter to criminal law by basing liability not on the accused's intention, but on the far lower standard of proof that he or she “ought to have known” they were disclosing a secret.
Bizos also says that imposing prison sentences of up to 25 years for the offences in the bill is excessive and that the Classification Review Panel it seeks to establish will not be seen as independent or impartial.
This was because a member of the panel could be removed by a majority vote in the National Assembly, raising a reasonable suspicion of political bias.
Finally, he says the bill flouts the constitutionally-mandated Promotion of Just Administration Act by potentially ousting the jurisdiction of the high court to review classification - which is an administrative act.
The submissions include a 20-page letter from Public Protector Thuli Madonsela, who warns that it jeopardises freedom of expression and her ability to do her job by preventing journalists and whistleblowers from reporting abuses.
The Congress of SA Trade Unions (Cosatu), in its contribution, calls for the inclusion of a public interest defence and foresees that the bill will “worryingly” have the effect of “entrenching authority through a security state”.
Cosatu has, along with rights groups, media houses and opposition parties, threatened to challenge the bill in the Constitutional Court if it is signed into law in its current form.
The ad hoc committee will meet on Wednesday to schedule further hearings on the bill. - Sapa