Information Bill unconstitutional - lawyer
23 July 2010, 00:16
Lawmakers were warned again on Thursday that the Protection of Information Bill would not survive Constitutional Court scrutiny because it rode roughshod over media freedom and the democratic values of transparency and accountability.
"The ones (clauses) I have highlighted are clearly unconstitutional and the Constitutional Court would strike them down," said Dario Milo, a partner at Webber Wentzel law firm making a representation on behalf of Print Media SA.
He was addressing the ad hoc parliamentary committee on the bill during a second day of marathon hearings that saw it described as a "sledgehammer" by reporters.
Milo noted that the bill - meant to replace an apartheid-era law dating from 1982 - could see investigative journalists face up to 25 years in jail for publishing information of public interest.
It also denied those accused of contravening it the right to raise the defence of having acted in the public interest.
Like others who have objected to the bill, Milo argued that it sought to create a climate of secrecy by defining national interest and national security so widely that information could arbitrarily be classified.
"The bill permits classification of documents that ought not to be classified at all in a constitutional democracy. This results in excessive secrecy and censorship of political expression," he said.
"The bill endorses this secrecy by creating over-broad definitions of concepts such as 'national interest', 'security', 'state security' and 'national security' and then allowing classification based on speculative harm to these nebulous concepts."
Those who drafted the bill had also erred by placing the onus on journalists to justify why they should be granted access to information, rather than requiring the state to show why it should remain classified.
The Freedom of Expression Institute (FXI) agreed that the bill fell foul of the Constitution and termed it an attempt to entrench the state's power and shield it from criticism by preventing the media from investigating corruption.
It singled out section 23(6) as the most worrying part of the bill.
This permits the head of an organ of state to refuse to confirm or deny that information existed where the existence of such information was itself classified as top secret.
"All of this smacks of an attempt to eliminate genuine criticism and to entrench the powers of the executive," FXI said in a statement.
Raymond Louw, chairperson of the South African National Editors' Forum, told the parliamentary committee that the bill had worryingly been stripped of safeguards contained in earlier versions.
He said an earlier incarnation of the bill, which has been on the drawing board since 2008, contained the cautionary clause that if there were doubt on whether something should be classified, it should not be.
But this has been replaced with a clause saying that in such cases the decision should be left up to the minister of state security.
"This introduces political decision-making to what should be a decision based on factual criteria," Louw said.
The Congress of South African Trade Unions (Cosatu) cautioned that the scope of the bill was "over-wide" and that it was likely to keep relevant economic information, such as details of Eskom's preferential pricing deals, out of the public domain.
While backing the bill, the South African Communist Party also voiced concern that it could be used by state entities to conceal how they spend taxpayers' money.
However MPs, including committee chairman Cecil Burgess, repeatedly argued that the bill was essential to ensure the smooth functioning of South Africa as a democracy and questioned the media's motives for demanding access to sensitive information.
Burgess used the discredited Browse Mole report compiled by the Scorpions as a supporting argument for restrictive legislation on protecting information.
The report, which was leaked first to Cosatu and then to the media, was a prime example of information that should have been investigated, but not published because of its disruptive effect on public life, Burgess said.
This was contested by investigative journalist Stefaans Brummer, who recalled that the leaking of the report forced former president Thabo Mbeki to order an investigation into its origins.
"Public interest was certainly served. The Scorpions' illegal information gathering activities were exposed," Brummer said.
Earlier this week, security expert Laurie Nathan said sections of the bill were reminiscent of apartheid-era secrecy laws and displayed a lack of understanding of the Constitution.
"Some risk of harm has to be tolerated in a democracy because the dangers posed by secrecy - lack of accountability, abuse of power, infringements of human rights and a culture of impunity - can imperil the democratic order itself." - Sapa
"The ones (clauses) I have highlighted are clearly unconstitutional and the Constitutional Court would strike them down," said Dario Milo, a partner at Webber Wentzel law firm making a representation on behalf of Print Media SA.
He was addressing the ad hoc parliamentary committee on the bill during a second day of marathon hearings that saw it described as a "sledgehammer" by reporters.
Milo noted that the bill - meant to replace an apartheid-era law dating from 1982 - could see investigative journalists face up to 25 years in jail for publishing information of public interest.
It also denied those accused of contravening it the right to raise the defence of having acted in the public interest.
Like others who have objected to the bill, Milo argued that it sought to create a climate of secrecy by defining national interest and national security so widely that information could arbitrarily be classified.
"The bill permits classification of documents that ought not to be classified at all in a constitutional democracy. This results in excessive secrecy and censorship of political expression," he said.
"The bill endorses this secrecy by creating over-broad definitions of concepts such as 'national interest', 'security', 'state security' and 'national security' and then allowing classification based on speculative harm to these nebulous concepts."
Those who drafted the bill had also erred by placing the onus on journalists to justify why they should be granted access to information, rather than requiring the state to show why it should remain classified.
The Freedom of Expression Institute (FXI) agreed that the bill fell foul of the Constitution and termed it an attempt to entrench the state's power and shield it from criticism by preventing the media from investigating corruption.
It singled out section 23(6) as the most worrying part of the bill.
This permits the head of an organ of state to refuse to confirm or deny that information existed where the existence of such information was itself classified as top secret.
"All of this smacks of an attempt to eliminate genuine criticism and to entrench the powers of the executive," FXI said in a statement.
Raymond Louw, chairperson of the South African National Editors' Forum, told the parliamentary committee that the bill had worryingly been stripped of safeguards contained in earlier versions.
He said an earlier incarnation of the bill, which has been on the drawing board since 2008, contained the cautionary clause that if there were doubt on whether something should be classified, it should not be.
But this has been replaced with a clause saying that in such cases the decision should be left up to the minister of state security.
"This introduces political decision-making to what should be a decision based on factual criteria," Louw said.
The Congress of South African Trade Unions (Cosatu) cautioned that the scope of the bill was "over-wide" and that it was likely to keep relevant economic information, such as details of Eskom's preferential pricing deals, out of the public domain.
While backing the bill, the South African Communist Party also voiced concern that it could be used by state entities to conceal how they spend taxpayers' money.
However MPs, including committee chairman Cecil Burgess, repeatedly argued that the bill was essential to ensure the smooth functioning of South Africa as a democracy and questioned the media's motives for demanding access to sensitive information.
Burgess used the discredited Browse Mole report compiled by the Scorpions as a supporting argument for restrictive legislation on protecting information.
The report, which was leaked first to Cosatu and then to the media, was a prime example of information that should have been investigated, but not published because of its disruptive effect on public life, Burgess said.
This was contested by investigative journalist Stefaans Brummer, who recalled that the leaking of the report forced former president Thabo Mbeki to order an investigation into its origins.
"Public interest was certainly served. The Scorpions' illegal information gathering activities were exposed," Brummer said.
Earlier this week, security expert Laurie Nathan said sections of the bill were reminiscent of apartheid-era secrecy laws and displayed a lack of understanding of the Constitution.
"Some risk of harm has to be tolerated in a democracy because the dangers posed by secrecy - lack of accountability, abuse of power, infringements of human rights and a culture of impunity - can imperil the democratic order itself." - Sapa
Pretoria
