Secrecy Bill misunderstood: Opinion
- By Mdududzi Skhosana (LLB 2007)
The Protection of State Information Bill is a bad piece of legislation, so we hear from members of the media and those opposed to the Bill. What these commentators have failed to do is tell us how and which parts of the Bill they oppose.
By its very nature, the protection of sensitive information in the possession of the state envisaged in the Bill entails the curtailment of the right to freedom of expression while promoting the constitutional obligation of the state to pursue national security. This is neither prohibited nor uncommon, for no state can fulfil its constitutional obligations without protecting some of its secrets. This is a process that brings to the fore competing constitutional claims that should be properly balanced. The Bill does this very well.
Central to its objects is the regulation of classes of state information that may be classified. The Bill clearly states that classification of state information is an exceptional measure only to be exercised in respect of ‘valuable information’. This is information that, if disclosed, could reasonably be expected to cause demonstrable harm to national security. To avoid abuse, a prohibition on the classification of information for the purposes of concealing unlawful acts, incompetency, and administrative error, or to limit scrutiny, is imposed.
The bulk of the criticism by those opposed to the Bill has been from the public interest defence brigade. Obviously advocates of this argument have not considered the fact that some information causes irreparable damage once published. Such an approach is untenable. The Wikileaks saga is the latest lesson to all of us.
While the Bill limits the right to publish information, it strikes the right balance between the right to freedom of the press and state security interests, in that organs of state under whose control classified information is held may be requested to declassify certain information. Once approached, an organ of state is obliged to review the classification.
If the information reveals evidence of a substantial contravention of the law, an imminent and serious public safety risk and the disclosure outweighs the harm that will arise from disclosure, the organ of state concerned is obliged to declassify the information. Where this request is declined, the high court may also be approached for urgent relief where continued classification will have to be justified. In addition to this, an independent Classification Review Panel is established to review and oversee the classification process. It also has the power to set aside the classification decisions taken by organs of state.
From this it is clear that claims that the Bill, once passed into law, will be used to conceal corruption or government scrutiny are unfounded and misinformed. It is also inescapable that, as the Constitutional Court held previously, where information is classified which limits the right to freedom of expression, the state has a duty to place before the courts material that justifies such classification. In this case, demonstrable harm to national security will have to be proved and hiding corruption does not do this; the converse holds true.