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Academic bets salary on info bill

2010-08-17 22:40

Cape Town - A University of Cape Town academic has offered to hand over a year of his salary to the chief state law adviser if the Protection of Information Bill passes scrutiny by the Constitutional Court.

Constitutional law expert Professor Pierre de Vos proposed the wager during a Harold Wolpe Trust seminar at the university on Thursday evening.

He said the court would find that the controversial bill, which seeks to set new rules for classifying information as secret, was simply too broad.

"Even if you can say that the purpose for the bill is an important one, which I think is arguable, they will say there are far less restrictive and limiting manners to achieve the same purpose, and for that reason it is not reasonable and justifiable in an open, democratic society," De Vos said.

"If the bill is found in its present form to be constitutional, I will give one month or one year of my salary to the person who drafted this bill, or maybe the chief state law adviser - on the condition that he will give one month or one year of his salary to me if the Constitutional Court finds otherwise."

De Vos said that if the court tested the bill in its present form and ruled that it was constitutional, the judges would lose all credibility in his eyes and those of any credible constitutional lawyer "by which I might not include the state law adviser".

The state law adviser is required to certify a bill as constitutional before it goes to Parliament.

De Vos said the bill’s criteria for classifying documents assumed that the official doing the classification had impeccable ethical standards and no incentive to hide corruption.

This was an invitation to abuse.

'Paints a bleak picture'

The law adviser had said it had to be assumed that officials would act diligently, honestly and ethically in applying the law.

De Vos said he would really like to believe that, but he had read the African National Congress’s document on leadership renewal, discipline and organisational culture that the party had posted on the internet ahead of its coming general council meeting.

"This document talks about the problems that the ANC is facing, and the sins of incumbency, including of course patronage, bureaucratic indifference and arrogance of power," De Vos said.

"If you read that document it paints a rather bleak picture of ANC members in government who have forsaken their revolutionary roots and have embraced a culture of corruption and dishonesty.

"But it would be exactly these very people that the ANC document says are not honest, are corrupt. They will have to make the decision about whether a document should be classified or not classified because it is in the national interest or not in the national interest."

Dr Laurie Nathan, a member of the former ministerial review committee on intelligence, said the reason the bill would not survive Constitutional Court scrutiny was that there was a strong constitutional presumption against secrecy.

Any legislation that sought to restrict access to information had to do so only in a way that led only to minimal secrecy. The bill fell far short of this.

Throughout the constitution there was an emphasis on an open and democratic society, and the terms "open" and "openness" appeared in it as many as 12 times.

The chair of the parliamentary committee dealing with the bill, ANC MP Cecil Burgess, claimed that critics of the bill were obsessed with openness and availability of information.

"It seems to have escaped his attention that the founders of our democratic dispensation and the drafters of our constitution were likewise obsessed with openness," Nathan said.

He guaranteed that De Vos would not lose his money if the law adviser took him up on his bet.