ANDISIWE MAKINANA

In changing its tune on the Protection of Information Bill on Friday, the ANC brought into question the advice the committee has been getting from the state’s law advisers on the proposed legislation.

In not so many words, the party implied it might have been misled on the constitutionality of the bill.

Presenting the party’s change of heart, ANC chief negotiator on the bill, MP Luwellyn Landers said: “We have a responsibility as members of Parliament. I take the point that advocate Enver Daniels, head of the office of state law advisers, declared the bill to be constitutional – but the responsibility to ensure that constitutionality is ours. It is not enough for Enver Daniels to sit before the committee and say: ‘I believe it is constitutional’.

“In every single clause in this bill we have to ensure that it meets that requirement.”

Saying they wanted to change the culture of secrecy, Landers said they were concerned about the possible abuse of the provisions of the bill for purposes of hiding corrupt activities. “So we must do everything possible to ensure we put in the bill not only provisions that will penalise stringently any such attempt but methods that could be used to prevent that.”

The new ANC proposals include:

l Narrowing the scope of the bill to apply only to security and intelligence services. Other organs of state could apply for inclusion.

l Allowing for a retired judge to review disputed classification of information.

l Removing the current minimum jail sentences that apply without the option of a fine for the disclosure of classified information, except if espionage is concerned.

But the ruling party has failed to move on the calls for the inclusion of a public interest defence clause that will protect journalists and whistle-blowers for publishing or releasing classified state information that is in the public interest.

Last month, the ANC rejected the this clause, with Cecil Burgess (ANC), who chairs the committee processing the bill, saying there was no international best practice for it.

Opposition parties, Cosatu, law experts and civil society have charged that the bill wouldn’t pass constitutional muster.

After Friday’s developments, at least one law expert said the committee had received bad legal advice. Constitutional law expert Professor Pierre de Vos said that while Daniels’s job was to give advice, be non-partisan and remain in the background, some of his actions painted him otherwise.

De Vos cited the newspaper article Daniels wrote last year in which he defended the bill.

“He gave up his independence to defend a bill propounded by a political party. At the time I bet a year of my salary, saying it would not stand a constitutionality test.

“His duty is to give honest and informed advice; it seems to me his advice at the very least was not informed,” said De Vos.

Professor Raylene Keightley, of Wits University’s Centre for Applied Legal Studies, said: “We don’t know on what basis the state advisers said the bill was constitutional.

“But with the amount of criticism in the public arena, by very learned people… MPs had an obligation to not simply accept the state lawyers’ advice,” she said.

In August, Daniels wrote in a newspaper article in defence of the bill: “The law advisers are required to provide the cabinet with a legal opinion on legislation to be considered by it. After cabinet approval for the legislation’s tabling in Parliament, the law advisers must either certify the legislation as being constitutionally compliant in their opinion, or provide Parliament with a legal opinion which explains why the bill cannot be certified.

“This procedure was followed by the law advisers before the consideration of the Protection of Information Bill by the cabinet and prior to it being tabled in Parliament.”

Many who opposed the bill, during the public hearings, claimed that “it is unconstitutional and draconian and worse than any legislation passed under apartheid”, Daniels wrote. “The submissions made to Parliament have been carefully considered by the law advisers, who have not been persuaded that their view that the bill would withstand constitutional scrutiny is incorrect. The bill and what it aims to achieve can be best understood through a careful consideration of all of its clauses within the context of the bill itself. It is easy to misconstrue the bill when such an approach is not followed.”

He also defended the definition of “national interest”, criticised for being too broad. “The definition is tempered by the qualification that any consideration in the national interest must be tested against the values of dignity, the supremacy of the constitution, the rule of law and accountability, responsiveness and openness and other values set out in Section 1 of the constitution and by the fact that the classification decision maker has discretion whether or not to classify information.”

The definition has since been replaced by the committee by the yet to be defined national security.

Daniels had not responded to attempts to obtain his comment by the time of going to press.