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Veteran human rights lawyer George Bizos has expressed incredulity at the government's plans to review the rulings of the Constitutional Court and Supreme Court of Appeal.
“I am concerned that there are attempts to assess the decisions of the courts,” Bizos said on Thursday in an aside from his submission on the Protection of State Information Bill during public hearings in Parliament.
“Who is going to assess them? I don't know the qualifications of the people that are expected to do that. How are they going to assess the judgments of the courts?”
Bizos recalled how apartheid era prime minister John Vorster conceded that his government had tried to appoint subservient judges, but complained that these too proved troublesomely independent at times.
“We don't want that sort of judiciary. We have a strong judiciary. Let us have confidence in that and let us solve this problem,” he said referring to the bill.
“It is really dividing the country.”
The respected senior counsel, who famously defended Nelson Mandela on treason charges half a century ago, strayed from his presentation on the legislation another time to admonish the government for increasingly questioning the decisions of the courts.
“And I would appeal to parliamentarians and others that in relation to matters of justice, the courts are our final arbiters. Please believe it, accept it and don't make irresponsible statements in relation to the courts not knowing what they are doing.
“We have an international reputation, we have a national reputation, we know that people who lose cases don't like it, but that does not mean that they don't have to follow Nelson Mandela's statement when the government lost the first case in the Constitutional Court.”
He was referring to the then president's public acceptance of a 1995 court ruling overturning a law that gave him the power to amend legislation by proclamation.
“In order to avoid public disquiet... he rushed to the SABC and said we are very disappointed that we have lost this case, nevertheless we are a democratic government and we will obey the order and I expect everybody else to do so.”
In November, Cabinet announced plans for a review of the Constitutional Court.
This week, it revealed that the terms of reference include the supremacy of the Constitution and the rule of law, judicial independence and the separation of powers, “as embodied in the constitution and defined by our courts”.
It also announced that the review would include the Supreme Court of Appeal, which found against President Jacob Zuma last week, for the second time in three months.
Bizos, appearing for the Legal Resources Centre, said the so-called secrecy bill also risked usurping the powers of the courts by making a proposed review panel the final authority on the correctness of a decision to classify information.
“Appointing a committee as the final, apparently, arbiter of whether classification was good or bad may be an exclusion of the courts' jurisdiction.”
Bizos said it was one of seven fundamental flaws in the bill that would almost certainly see it struck down by the Constitutional Court if passed in its current form.
He pleaded for the inclusion of a public interest defence to balance provisions introducing prison sentences of up to 25 years for revealing state secrets.
“It will take a pretty brave man or woman to make something public in the public interest when there is uncertainty whether he or she is going to serve a long term in prison.
“To expose corruption and have to serve this sort of term in prison is undemocratic, it is unreasonable and the courts will not give effect to it.”
He appealed to ANC MPs to use the same majority that allowed the ruling party to drive the bill through the National Assembly last year, to refer it to the Constitutional Court for review.
“You have the necessary majority... Let us refer it to the Constitutional Court, the decision will be binding on everybody,” he said.
Thursday was the penultimate day of public hearings on the bill held by the ad hoc committee processing it in the National Council of Provinces.
Congress of SA Trade Unions (Cosatu) general secretary Zwelinzima Vavi told MPs the trade union federation would rush to the Constitutional Court to challenge the bill if passed in its present form.
Cosatu, Bizos and Verne Harris from the Nelson Mandela Foundation all objected to clause 1 (4) of the bill that states that it would trump the Promotion of Access to Information Act where the two pieces of legislation clashed.
Harris argued that this attempt to have the so-called “secrecy bill” to interfere with the provisions of the prior, constitutionally-mandated act, would be successfully challenged in the Constitutional Court. - Sapa