Why is the Protection of Information Bill being rushed through Parliament?
The Afrikaans writer, N P Van Wyk Louw, aptly describes the importance of freedom of expression to a democracy when he equates it with the lifeblood of the body politic. He writes that without the free flow of information and ideas, citizens would not be able to participate in public life. Similarly, our Courts have on numerous occasions emphasised that the right to freedom of expression, which includes the freedom to receive and impart information, lies at the core of our democracy.
This is so because the exercise of the right facilitates the search for truth, which in turn enables accountability and responsiveness of both the government and civil society. When freedom of expression and the right to access to information are undermined, the foundational values of an open, transparent and accountable democracy are thus compromised.
Labeled as the most draconian attack on freedom of expression and the right to have access to information since the dawn of our new democracy, it is not surprising that there has been such overwhelming opposition to the Protection of Information Bill (the Bill). What is surprising however, is the apparent haste with which the Bill is being rushed through Parliament. Despite this apparent new-found urgency, there are encouraging indications that some of the objections have been seriously considered by the Ad Hoc Committee charged with considering the Bill. The lurking question is, however, whether the Government will make sufficient concessions to render the Bill constitutionally compliant.
When the Bill was originally introduced in 2008, it attracted equally widespread opposition. It too was deemed to be unconstitutional in that it offended the right to freedom of expression and accordingly undermined the foundational values of openness, accountability and transparency.
Despite the strong and uniform objections, and despite the findings of the ministerial review commission established by the Minister that the Bill did not pass constitutional muster, no account was taken of any of the recommendations. Instead, the version of the Bill that was introduced this year was even more restrictive , resulting in even greater mass-based, widespread criticism from civil society, religious leaders, foreign embassies, foreign opposition parties, trade unions, academics, business and even former government Ministers.
One would hope that it is as a result of these criticisms that the Government has proposed certain amendments to the Bill. These amendments are contained in a third version of the Bill, now to be entitled "Protection of State Information Bill". Before determining whether this latest version will pass constitutional muster, it may be informative to examine the criticisms of the earlier 2010 version of the Bill.
The main objections to the earlier 2010 version revolved around the extent of its application (the Bill covered all organs of State and the power to classify could be delegated without constraint), the overly broad definition of the categories of documents which could be classified (it included information concerning matters that were in the national interest and commercial information), the draconian custodial sentences (with no the option of a fine or a public interest defence) for persons publishing or in possession of classified information and the absence of an independent review mechanism on classification decisions. The concern was that the Bill would have a chilling effect on investigative journalism, whistle blowing and public discourse.
The most important amendments which are now being proposed by the government include the deletion of both the overbroad and unconstitutional definition of "national interest" and "commercial information" from the Bill. A crisper, clearer and more focused definition of "national security" is also proposed. In addition, it is proposed that no one holding office lower than that of Deputy-Director General may classify information. Lastly, protection is afforded to whistle blowers through the extending the protection that is accorded by the Protection of Disclosures Act.
These concessions are to be applauded and the Ad Hoc Committee congratulated for considering the various public inputs. Despite these proposals, three serious constitutional concerns nonetheless remain. The first is the continued criminalization of the legitimate disclosure of classified information, even where it is in the public interest. In the absence of a public interest defence, investigative journalism will be completely dampened and the public's constitutional right to hold its government accountable will consequently be gravely compromised.
The right to freedom of expression would also be severely curtailed. The second is the application of the Bill to all organs of state. This means that all public institutions, including national, provincial and municipal departments and agencies that are not concerned with national security matters, would fall within the ambit of the Bill. Given the increasing allegations of endemic Government corruption, we simply cannot afford to allow our leaders to hide behind over-classified information that has no bearing on national security.
The third concern is the absence of an independent review mechanism. Although there is talk of establishing mechanisms to assist the Minister with both the review and appeals processes, for there to be a truly independent arbitrator, the members would have to be independent of both the Minister and the officials who made the original classification. Failing this, the right to the review of administrative action by a court or, where applicable, an independent and impartial tribunal as guaranteed in the constitution will be unjustifiably limited.
In terms of the latest Parliamentary calendar, final deliberations of the Ad Hoc Committee are scheduled for the 12th of November and it is planned to have the National Assembly debate and vote on the Bill before Parliament goes into recess on the 18th of November. Unless the remaining three areas of concern are dealt with, the widespread criticism of unconstitutionality will remain and will inevitably lead to the Bill being challenged in the Constitutional Court. The Ad Hoc Committee would thus be well advised not to rush the Bill with such haste.
Issued by the Centre of Constitutional Rights of the FW de Klerk Foundation, November 11 2010
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