Objections to info bill ‘hysterical’

2010-07-27 13:16

Chief state law advisor Enver Daniels has 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


“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.”

During public hearings last week, Print Media SA 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 furthermore makes publishing such information a crime that

can carry a jail sentence of up to 25 years.

The Freedom of Expression Institute said this made it plain that

the bill was an attempt to prevent the media from exposing wrong-doing and

thereby to silence criticism of the government.

Daniels told the committee he was not able to introduce the defence

of public interest into the bill, because he had no policy directive to do


“That is a policy issue,” he said, adding that it was up to the

committee or the executive to tell him to introduce the notion of disclosure in

the public interest to create a balance between transparency and secrecy in the

national interest or for the sake of national security.

He also warned that doing so would place an unnecessary onus on 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.

“It seemed it would negate that balance we are trying to achieve in


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 it were not applied by people of integrity.

“The implementation is going to be very important. We can get it

horribly wrong if it is not implemented by people who are properly


It was up to the minister of state security to draft regulations

that would remove potential confusion and spell out a policy position on how the

bill will be applied, he said.

“Hopefully the regulations will be clear and concise.”

Critics of the bill have argued that it undermines democratic

values by giving the minister 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.

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