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27 Jul 2010 15:52
Chief state law adviser Enver Daniels on Tuesday dismissed an avalanche of criticism of the Protection of Information Bill as largely “emotional and hysterical”, and insisted the draft Act was constitutional.
“In looking at these submissions, some of them are quite emotional and hysterical,” he told Parliament’s ad hoc committee scrutinising the Bill, adding that very few of the objections aired have swayed the legislature’s legal advisers.
“None of the submissions have convinced us that the provisions of this Bill are unconstitutional. We don’t think the provisions are too wide.
We think this makes it easier to access information, though I know that is not a widely held view.”
He said the legislation would probably be challenged in the Constitutional Court, but though individual clauses might appear objectionable, he believed that, read in its entirety, the Bill would withstand scrutiny.
Critics have argued that the legislation undermines democratic values by giving the minister of state security the discretion to classify any information, to the point of refusing to acknowledge that it exists, in order to protect the nebulous concepts of national interest and security.
Last week, Print Media South Africa told the committee the Bill posed a serious threat to media freedom by barring journalists from arguing that they published classified information in the public interest.
The Bill, intended to repeal and replace an Act dating from 1982, makes being in possession of, publishing, or leaking such information a crime punishable—in the case of top-secret information—with up to 25 years in jail.
‘The threat is naive, but dangerous’
The Freedom of Expression Institute said this made it plain that the Bill was an attempt to prevent the media from exposing wrongdoing and thereby to silence criticism of the government.
Respected former editors Harvey Tyson, Rex Gibson, and Richard Steyn concurred and warned the Bill could spell the end of media freedom in South Africa less than two decades after it was won.
“There are signs now that all media may be under dire threat once more. The threat is naive, but dangerous. It appears to come in an uninformed attack by a few legislators who don’t like criticism,” they said.
Daniels told the committee he was not able to introduce the defence of public interest into the Bill, because he had no policy directive from the committee or the executive to do so.
He added that such a clause would unfairly oblige the state to prove information was not in the public interest.
“If you put it in it means that anybody can publish anything without taking the consequences into consideration. You may find that things are published and then there is an onus on the state to prove that it must not be published with the damage already done,” he said.
The Open Democracy Advice Centre said Daniels showed a flawed understanding of how such a clause would be applied, as in fact the onus would be on the media to prove the information should be in the public domain.
“It is of great concern that the committee is being given incorrect information by the most senior law adviser we have,” the centre’s Allison Tilley said.
‘More difficult for the media to obtain information’
Daniels, who certified the controversial Bill, eventually conceded that it would make it “more difficult for the media to obtain information”, but said they could get around this by invoking the Promotion of Access to Information Act.
He also admitted that the legislation was vague in parts, notably in its failure to define what national interest means, and could have dire consequences if not applied by capable people.
“The implementation is going to be very important. We can get it horribly wrong if it is not implemented by people who are properly trained. I hope people of integrity are going to perform these functions.”
It was up to the minister of state security to draft regulations that would remove potential confusion and spell out how the Bill will be applied, he said. “Hopefully the regulations will be clear and concise.”
Democratic Alliance MP David Maynier asked that the Bill be withdrawn and redrafted. The suggestion was dismissed by committee chairperson Cecil Burgess, who described Daniels as “very informed” and said scrapping the Bill would be “disrespectful” to his office.
The Black Sash also urged government to withdraw the Bill and redraft it in such a way that it provided for the real national interest, which was “to promote the free flow of information within an open and democratic society”.
Black Sash trustee Mary Burton said if the Bill became law, officials would have the power to classify much more information than simply that which covered “the survival or security of the state”.
“The penalties for disclosing such information are too severe, posing a major obstacle for individuals and publications seeking to discover and expose any failures or wrongdoing on the part of the state,” Burton said.
‘Government-regulated tribunal will amount to media censorship’
Meanwhile, the National Press Club on Tuesday “strongly” condemned the media tribunal proposed by the ruling African National Congress.
“A government-regulated tribunal will amount to media censorship and hinder the media’s right to report without restraint,” said National Press Club chairperson Yusuf Abramjee in a statement.
“Such a tribunal relates to apartheid-style tactics where the media was told what to write and say.”
He said the club would oppose any move for a tribunal.
“The media plays a vital part of any democracy and should regulate itself.
“We are therefore opposed to the proposed media tribunal as this will violate the rights of journalists to do their work,” he said.
He called on President Jacob Zuma and the ANC to decline the proposed tribunal at the party’s conference in September.
“We will keep a close eye on developments, and if such a tribunal becomes a reality, we will, together with other role-players, decide on the way forward.”—Sapa
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