Secrecy Bill – you can approach Constitutional Court

2011-11-23 07:47

South Africans have the right to bring the Protection of State Information Bill before the Constitutional Court if they feel it is impinging on their rights, former Constitutional Court judge Kate O’Regan said yesterday.

“If people feel the bill is inconsistent with the Constitution, then they have a constitutional right to challenge those provisions before the court,” she said.

O’Regan was speaking at the yearly Helen Suzman memorial lecture in Johannesburg.

She said the Constitution Court was unique in that it provided a system whereby it could check the constitutional validity of legislation, while still being held accountable.

“The court does not define policy... but different legal tools can be used to implement policy,” she said.

Currently all policy must comply with three constitutional restraints: compliance with legality, rationality and the Bill of Rights.

“The function of the court when determining challenges to legislation based on the Bill of Rights is two-fold,” O’Regan said.

“Most obviously, it serves as the guardian of fundamental rights, and less obviously and as importantly, it serves to create a forum for public debate about the reasons for the state’s exercise of public power.”

O’Regan said she would not comment on whether the information bill could be regarded as unconstitutional, as she had not read it.

The National Assembly approved the bill yesterday despite widespread opposition and questions around its constitutionality.

The Helen Suzman Foundation said the bill would undermine the constitutional democracy of the country.

“The bill cannot credibly be described as in South Africa’s best interests,” it said in a statement on Monday.

“Instead it is a case of political expediency triumphing over constitutional rights. It marks the beginning of policy being driven by a secretive and self-serving security cluster.”

The University of the Witwatersrand said on Monday that the bill attacked key principles that underpin a democracy, such as access to information and freedom of speech, and would threaten the country’s widely admired constitutional order.

“The university expresses its deep concern at the implications of these measures for civil liberties and the pursuit of intellectual enquiry, and insists that, in their current form, they be abandoned,” it said in a statement.

With the bill passed, media would not be able to claim it acted in the pubic interest if it violated or was party to the violation of a law, or published classified information to substantiate a report on, for example, malpractice or corruption in government.

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