Bizos drills holes into 'secrecy bill'

Veteran human rights lawyer George Bizos argues in a submission to parliament that the Protection of State Information Bill is unconstitutional on several counts.

"The current draft of the bill, as it stands, runs contrary to and indeed threatens many of the fundamental values and principles enshrined in the constitution," he writes.

Bizos, of the Legal Resources Centre's constitutional litigation unit, prepared the submission on behalf of human rights organisation Passop.

It is one of 293 written presentations sent to the National Council of Provinces' ad hoc committee processing the bill after it was passed by the National Assembly amid a public outcry last year.

Bizos enumerates seven flaws in the bill, including the absence of a public-interest defence.

"We view a public-interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in the public interest."

He says the bill undermines the provisions of the Promotion of Access to Information Act and its status as the supreme law giving effect to section 32 of the constitution, in which citizens' rights to access to information held by the state is enshrined.

The act makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime or the existence of imminent public safety risk or environmental risk.

Section five of the act also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions.

Yet, the Protection of State Information Bill explicitly states that "despite" section five of the Promotion of Access to Information Act, it trumps any other law relating to classified information.

"Any proposed legislation that seeks to displace the clear provisions of PAIA also violates section 32 of the constitution and is thus unconstitutional ," Bizos writes.

He says those who defend the absence of a public-interest defence have argued that such a clause was unnecessary because the bill criminalises wrongful classification.