The Protection of Information Bill is now in its 11th draft but chief state law adviser Enver Daniels remains adamant that the original version would have passed muster constitutionally.
Speaking from his office in the Cape Town CBD this week, Daniels defended the performance of his division, which is tasked with advising the state on legal matters and drafting legislation.
Parliament’s ad hoc committee considering the Protection of State Information Bill, as it is now known, is still slogging away at the proposed legislation, which is now a vastly different document from the one Daniels’s office had produced initially. “We had certified that in our view the Bill was constitutional,” Daniels told the Mail & Guardian. “My opinion on the original hasn’t changed.”
His office subjected all its work to rigorous peer review, Daniels said, and this Bill was drafted by two senior state law advisers working under the supervision and guidance of a principal.
A deputy chief state law adviser then reviewed it and Daniels gave it the final okay. He pointed to the half-metre-high stack of folders on his desk as evidence of the work he and his team had put into this thorny piece of draft legislation.
“We had considered that two clauses were problematic — [those relating to] commercial interest and the national interest. We considered them to be problematic because they were wide. But we didn’t think that they were overboard in the constitutional sense,” he said.
Before draft legislation is submitted to Parliament, the office of the chief state law adviser is required to certify that it is constitutional. Daniels said his office believed the Bill had, from the outset, sufficient safeguards to counter any charge of unconstitutionality.
Despite his assertions, numerous public interest groups, legal experts and opposition parties have argued that the Bill requires serious reworking and even the ANC has conceded numerous points contained in the original draft.
Daniels disagreed with the criticism that the serial redrafting of this Bill, as well as others, reflected poorly on the work of his office. Rather, he argued, it was part of the democratic process that allows various stakeholders to engage with legislation through the parliamentary process.
“Lawyers don’t necessarily come to the same conclusions,” he said. “If lawyers agreed on everything we wouldn’t have these battles that take place in the courts every day.”
He said that 601 pieces of legislation had passed through his office in the past decade, in addition to its work on consulting with the state about a range of other legal matters and giving advice, when required, on subordinate legislation such as regulations.
It was only a handful of Bills dealing with particularly controversial matters that had drawn critics’ ire, he said. “Complaints relate to many Bills that are transformative in nature and will be highly contested.”
These include the Expropriation Bill of 2008, which was shelved by Parliament midway through deliberations because of doubts about its constitutionality. “Expropriation is going to be highly emotional and contentious,” Daniels said.
His office can refuse to certify legislation but must provide its reasons to Parliament. It can also make recommendations it believes will ensure that a Bill meets constitutional requirements.
Daniels said his office had, in the past, given the state advice it did not like. “I am of the view that [my] position is independent.”