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Weather Service Bill unconstitutional - FWDKF

Foundation says offences clause irreconcilable with Section 16 of the Constitution

F W DE KLERK FOUNDATION CALLS FOR THE SCRAPPING OF CLAUSES IN THE WEATHER SERVICE AMENDMENT BILL THAT WOULD LIMIT FREEDOM OF EXPRESSION

The F W de Klerk Foundation has made a submission to the Parliamentary Portfolio Committee on Water and Environmental Affairs in which it has called for the scrapping of the proposed clause 30A that deals with penalties and offences (see here - PDF). 

In terms of the clause "no person may (a) issue a severe weather or air pollution-related warning without the necessary written permission from the Weather Service;  (b) supply false or misleading information about the Weather Service; or(c) unlawfully, intentionally or negligently commit any act or omission which detrimentally affects or is likely to detrimentally affect the  Weather Service."

The Foundation expressed the view that the clause is irreconcilable with Section 16 of the Constitution which gives everyone the right to freedom of expression, which includes "freedom of the press and other media; freedom to receive and impart information and ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research." The only limitations placed on freedom of expression are "propaganda for war; Incitement to imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm".

The Foundation pointed out that, quite clearly, communication regarding weather or pollution-related conditions does not fall under any of the areas of expression prohibited by the Constitution. The proposed clause would directly limit freedom of expression by preventing print, electronic and social media from expressing their legitimate views on severe weather and/or air-pollution conditions.  

It would also limit the freedom of people and organisations to receive and impart information and ideas on a topic of general and legitimate interest. One can imagine many circumstances - such as the approach of a tornado - when the media or ordinary citizens would have an over-riding need to warn others of an impending danger without the written permission of the Weather Service.

The proposed clause would also give the Weather Service a monopoly of communication on issues of general importance to the public and would thereby limit academic freedom and freedom to conduct research by other organisations or individuals.

In the Foundation's view it was equally unacceptable to try to prohibit "false or misleading information" about the Weather Service. It pointed out that Information is often "false or misleading" in the eye of the beholder - and there can be legitimate differences of opinion on virtually any question. The Foundation said that It was unacceptable to limit legitimate comment and debate - particularly on organs of state - even if such comment proved to be erroneous, false or misleading -  by interfering in any way with expression that complies with section 16 of the Constitution.

It was also unacceptable and unconstitutional to try to prohibit acts or omissions that might detrimentally affect the Weather Service - or any organ of state. Citizens in constitutional democracies are free to take action within the law that might well detrimentally affect organs of state - for example, by exposing incompetence and corruption; or criticising management or the activities of such an organ of state; or by exercising their right to strike or to demonstrate.

The Foundation also pointed out that, quite apart from the unconstitutionality of Clause 30A, the proposed penalties of fines between R 5 million and  R 10 million, or maximum imprisonment of between five and ten years were out of all proportion to the supposed offences.

The Foundation found it most disturbing that such fundamentally undemocratic and unconstitutional tendencies should manifest themselves in legislation on so supposedly innocuous a topic as the Weather Service.

Statement issued by the FW de Klerk Foundation, January 11 2012

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