/ 26 August 2011

Nothing secure about vagueness

When the minister of state security released the Protection of Information Bill it was met by fierce protest from organisations and activists seeking to uphold the constitutional principle of openness and the right of access to information. The big concerns included the Bill’s definitions of “national interest” and “national security” as criteria for classifying information. The definitions were so broad and vague that they would have led — inevitably and unconstitutionally — to excessive and unjustified secrecy.

Minister Siyabonga Cwele responded to the criticism by deleting the Bill’s references to “national interest” as a basis for secrecy. But the problems with “national security” remain. The ANC members of the parliamentary committee dealing with the draft legislation have now proposed a completely inappropriate solution. They say the law should avoid defining national security and simply leave its interpretation to the courts and intelligence officers.

The motivation, according to ANC MP Luwellyn Landers, is as follows: “Virtually nowhere in democratic dispensations such as ours have governments defined national security. It defies clear definition. It has malleable and very elastic meanings.” The malleability of the concept of national security is exactly the concern that the Bill’s critics have been raising since 2008. The obvious solution would be to drop the concept from the legislation.

If the ANC’s proposal is to be accepted, Parliament would abrogate its responsibility to draft clear laws that delineate as precisely as possible the extent to which the state can infringe constitutional rights and principles. Instead, Parliament would allow intelligence officers to classify information and thereby limit our rights on the basis of a pliable concept that they are free to interpret as they see fit. This would not be constitutional.

In addition, the Constitution states that national security is subject to the authority of Parliament and it would be very strange if parliamentarians suddenly decided that they could not define this term.

Landers has forgotten that the government has in fact defined national security, in broad and progressive terms, in the 1994 White Paper on Intelligence.

The Constitution also contains an elegant formulation of what national security means in our democratic society: “National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.”

In light of this formulation, national security clearly encompasses the security of the country, its system of government, its values and all its people. Consequently, national security is not something that has to be weighed against fundamental rights and freedoms. It embraces rights and freedoms.

Minister Cwele misconstrued national security when he argued that the Bill “must ensure the balancing of [the] competing rights of openness and national security”. National security and openness are complementary and not competing imperatives.

This perspective is critical because the right of access to information is a prerequisite for the protection and exercise of other constitutional rights, for democratic accountability and thus for the security of people.

‘Public scrutiny’
The danger of putting government action beyond public scrutiny on the grounds of national security has been raised in other countries. In Independent Newspapers vs Minister for Intelligence Services, our Constitutional Court quoted the concerns of the United States Supreme Court in this regard:

“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment [on freedom of speech]. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our republic.”

ANC MPs have finally conceded that “national security” is very broad and vague and for this reason, want to avoid defining the concept in the Bill. The former minister for intelligence, Ronnie Kasrils, believes that this is a cop-out and that a narrow definition should be found. But since 2008, when Kasrils introduced the first draft of the Bill, neither the executive nor Parliament have been able to do this. Why would we expect them to succeed in the future?

The best solution is for the parliamentary committee working on the Bill to ditch the concept of national security altogether and to craft a more simple, concrete and stringent test: the classification of information should be based on specific, significant and demonstrable harm that might arise from disclosure.

The Bill already has many provisions that meet this test. For example, it allows classification where disclosure of information would cause life-threatening or other physical harm to a person; would clearly and demonstrably impair the government’s ability to protect officials for whom protection services are authorised; or would seriously and substantially impair defence or intelligence systems, plans and activities.

These and similar provisions in the Bill are sound and adequate. They constitute justifiable reasons for confidentiality in a democracy and do not give intelligence officers inappropriately wide discretion when wielding the secrecy stamp. There is no need to bedevil matters with the malleable idea of national security.

It must be stressed, however, that government cannot avoid all possible harm that might arise from the disclosure of sensitive information. Some risk of harm has to be tolerated in a democracy because the dangers posed by secrecy — lack of accountability, abuse of power, infringements of human rights and a culture of impunity — imperil the democratic order itself.

In the Independent Newspapers case, Judge Albie Sachs expressed his opinion: “It is important not to deal with hypothetical damage that could be caused to national security if certain types of information were to be revealed, but rather to verify whether on the facts a real risk exists that non-trivial harm could result. More particularly, it has to be asked whether more harm could well result from disclosure than from nondisclosure”.

At the very least, the Bill should contain a public-interest defence clause that would allow whistle-blowers, journalists and others to avoid criminal sanction if they expose classified information that reveals wrongdoing by state officials.

Laurie Nathan is extraordinary professor at the University of Pretoria and served on the ministerial review commission on intelligence from 2006 to 2008