THERE has been much media hype about the “controversy” surrounding the government’s new “secrecy bill”.
The trend seems to be to treat the proposed law as an unconstitutional attack on the rights of access to information, freedom of expression and freedom of the press. It has been accused of advancing the interests of state enterprises and of exempting them from the requirements of the laws relating to the free flow of information.
It is represented as a potential rot in the very core of our constitutional democracy.
This is a distortion of the facts — a typical case of considered analysis giving way to sensationalism, and the following should explain why.
First, it would be well to point out that no right is absolute. Even in our rainbow nation , rights may be limited and even withheld in instances where legitimate state interests are served.
An extreme example of this is the constitution’s section 37, relating to states of emergency, in which case, rights, such as those to life and freedom of movement, may be severely limited. The point is that rights have never had free rein. Public interest and the state interest are sometimes at loggerheads and we need to acknowledge that an appropriate balance has to be established between the two.
Thus the right question to ask about the bill is whether it promotes state interests further than it should.
Critics and the media have honed in on clauses that they suggest indicate a move towards a government (and related institutions) that will be able to operate without accountability, hidden behind a veil of secrecy. The flaw in these suggestions is that their validity rests on “quote mining” (quoting out of context), or that the bill has not been read as a whole. A limited picture of the bill has been presented and some relevant clauses have been conveniently omitted.
These omitted clauses can provide much-needed context and may even convince the reader that panic is not yet warranted. This opinion is necessarily limited in length and examples. Thus, readers are encouraged to read the bill for themselves.
First , the reader should realise that our constitution is supreme. Even if the bill was an attack on it, the constitution would always emerge the winner. This is the default position and operates despite what legislation might purport to do. Having said that, the bill acknowledges this throughout its pages.
Of course, the right with which we are currently concerned is section 32’s “access to information”. Does the bill seek to impose limits on this right? Well, to a certain extent, yes. But is the extent to which it does so excessive? This is where the balancing of interests comes into play. Section 32 is given substance by the Promotion of Access to Information Act (“Information Act”).
To what extent will this still apply? Well, section 2(j) of the bill lists, as an objective, to “harmonise the implementation of this act with the (Information Act)”. Thus, we see acknowledgment of the need for balance. Parliament’s heart is in the right place, despite potential criticism as to practicality.
Turning to criticism about the practical implementation of the bill, the main points seem to be: that corrupt government officials might abuse the bill to cover their tracks; enterprises associated with government might withhold information, so as to gain unfair competitive advantages; tender processes might be veiled in secrecy; and people will be imprisoned for possessing and/or exposing confidential information.
Corrupt officials may well “abuse” (differentiable from “use”) the bill to conceal their wrongdoing. What has largely escaped media attention is that guidelines have been incorporated into the bill about what information may be classified. There are also consequences for improper classification. Section 42 states: “Any person who knowingly classifies information in order to achieve any purpose ulterior to this act, including (thus, not a finite list) the classification of information in order to: (a) conceal breaches of the law; (b) promote or further an unlawful act, inefficiency or administrative error; (c) prevent embarrassment to a person, organisation or agency; or (d) give an undue advantage to anyone in a competitive bidding process, is guilty of an offence…”
Those who would argue that abusers of the bill are unlikely to get caught should consider that those corrupt persons inclined to cover their tracks could simply feed the relevant documents through the office paper shredder, at far less of a risk of getting caught than if they classified the relevant documents.
Thus, the bill does not create a means of paper trail destruction. Rather, it provides, at best, a far riskier alternative to an existing option.
Part of the “journalists might go to jail” criticism revolves around the argument that the bill should contain a “public interest” defence — that is, that one should escape criminal liability if one can prove that the public benefit of disclosure outweighed the “state interest” need for classification. The bill, as it stands, does contain an implied “public interest” defence. Section 17(i) states: “classification decisions ought to be assessed and weighed against the benefits of secrecy, taking into account the following factors: … (vi) the public benefit to be derived from the release of the information”.
Thus, if a person were faced with a criminal charge for disclosure, it would follow that, if he/she could prove “public benefit” above “national interest”, then the information should never have been classified.
No judge would convict a person for disclosure of information that should never have been classified. It would run contrary to the purpose of the bill and would be unconstitutional to the extent that depriving such person of their freedom did not serve a legitimate state interest.
“All well and good,” I can hear some people saying, “but what of the fact that these guidelines are overly broad and capable of different interpretations — that is, inconsistency and misapplication?” One has to remember that these “guidelines” are the skeleton of what is to become an intricate body.
As per section 7, “the minister must, within 12 months … prescribe” those regulations that will guide the interpretation and application of these “overly broad” and “idealistic” guidelines. The point is that if and when the minister makes regulations that obviously enable corruption etc, that will be the time to panic, object and approach the Constitutional Court. As it stands, the skeletal framework of the bill remains solid. There is not yet cause for panic.
As to what information is left for the state to protect, after the application of the numerous guidelines, is yet to be seen. Presuming that there will be very little, then the worst criticism that can be levelled against the bill is that it is a dud (again, hardly worth the panic).
We should be wary of quote- mining in order to argue a specific agenda. Yes, there are foreseeable abuses of the bill, but, if the bill is read in its entirety, it is clear that these abuses have been anticipated and guarded against. Certain pieces of information require protection, others not. The guidelines have set out which information cannot be classified and, as it turns out, it is exactly the kind over which everyone is making such a fuss.
Perhaps we should be banning matches and paper shredders from state departments.
- Keichel is a candidate attorney with Schindlers Attorneys