Siyabonga Cwele

THE Protection of Information Bill was unnecessary, unconstitutional and undesirable, the General Council of the Bar submitted to Parliament yesterday - adding its voice to the widely held view that the bill would not pass constitutional muster.

Parliament's ad-hoc committee on the bill has received and heard public submissions on it, but State Security Minister Siyabonga Cwele has yet to respond to them.

The Bar Council's submission said the bill had "a number of dangerous features, which are inimical to the very constitutional values and rights which the bill purports to be safeguarding".

It was also unnecessary because the information covered by the bill, and that "should genuinely be kept confidential", was protected from disclosure under the Promotion of Access to Information Act (PAIA).

"In light of the provisions of PAIA . it is accordingly difficult to discern a legitimate state reason for wanting to introduce a second protective layer," the Bar Council said.

It also argued that the bill would have a confusing effect on how the PAIA would be applied: what would happen in a situation where the PAIA gave discretion to an information officer to disclose information classified under the bill?

The Bar Council referred to the founding values of the constitution, which include "accountability, responsiveness and openness". Then there were the constitutional rights of freedom of expression (section 16) and access to information held by the state (section 32).

The PAIA was introduced to give effect to section 32. To the extent that the Protection of Information Bill would lead to more information being withheld than what could be withheld under the PAIA, the bill was "contrary to the constitutional scheme and therefore an unjustifiable limitation of section 32".

The Bar Council said the bill would also unjustifiably infringe on the right to freedom of expression because the restrictions on access to information and the "draconian custodial sentences" were "out of proportion to any purported benefit derived from the shielding of classified information".

The b ill could also prejudice litigants in court. Restricting litigants' access to state documents was "not only undesirable but could also be contrary to the right of access to courts".