Fica bill is constitutional say top lawyers

The controversial Fica Bill‚ which was sent back to Parliament by the President citing constitutional concerns‚ would pass Constitutional muster‚ the Finance committee has heard.

The Financial Intelligence Centre Amendment Bill‚ written to combat corruption‚ white collar crime and money laundering by placing greater scrutiny on the financial affairs of prominent individuals‚ was sent back to Parliament last year because President Jacob Zuma believes that a clause allowing for warrant-less searches of premises‚ is unconstitutional because it limits the right to privacy.

Public hearings are currently under way in Parliament to deal with the president's concerns.

The bill has been vehemently opposed by the Black Business Council (BBC)‚ and Progressive Professionals Forum president Mzwanele Manyi.

The BBC claims that there are other constitutional issues around the bill and wants these opened up too. It will be making submissions to Parliament later on Wednesday.

Parliament's legal advisor‚ Frank Jenkins‚ told the committee that the hearings could‚ according to the rules of Parliament‚ only focus on the exact issues for which the president sent it back.

The BBC‚ however‚ wrote to Parliament in December‚ stating that it believed all aspects of the bill's constitutionality should be opened up for discussion.

However‚ in a written response‚ chairman of the finance committee Yunus Carrim said the bill was gazetted for public comment‚ but Treasury had indicated that it received no submissions from the BBC. He also pointed out that the BBC had not participated in the parliamentary public hearings into the bill held in 2015 and 2016.

“I understand that your organisation believes other provisions of the bill are unconstitutional. Unfortunately‚ the committee cannot in terms of this process focus on the constitutionality of other provisions of the Fica Bill” he wrote.

Advocate Ishmael Semenya‚ providing legal opinion for the speaker of the National Assembly‚ said he believed that the bill‚ as it currently stands‚ would survive “constitutional scrutiny and pass muster”.

Semenya told the committee that the Constitutional Court‚ in five cases‚ had not ruled that searches could not be conducted without a warrant‚ but that these had to be the “exception to the rule” and there had to be justification for such a search to be conducted.

Advocate Jeremy Gauntlett‚ presenting legal opinion on behalf of the National Treasury‚ said all the legal views were independent but showed some “commonality”.

He said his advice was much the same as that presented by Semenya although “a little more conservative”.

He suggested that “minor adjustments” be specifically built in to the bill to limit the harm caused by such a search‚ to avoid “legal combustion”.

– TMG Digital/Parliament