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Minister must follow due process to withhold information on "national security" grounds, says FXI

(FXI/IFEX) - The following is a 22 November 2007 FXI media release:

FXI in Constitutional Court today as amicus in Masetlha case

Today, the 22 November 2007, the Freedom of Expression Institute (FXI) will intervene as a friend of the Constitutional Court in the case of the Independent Newspapers v Minister of Intelligence Services. The FXI will argue that Minister Ronnie Kasrils has not followed the proper procedural approach in his attempt to withhold certain documents from the public.

The documents in question concern certain undisclosed materials that form part of the Constitutional Court record in an earlier case between former NIA head Billy Masetlha and President Thabo Mbeki. The Minister of Intelligence has objected to the disclosure of the documents, saying that the materials are classified and should be withheld on grounds of national security.

All over the world, the work of intelligence agencies is shrouded in mystery. Minister Kasrils has an opportunity to show that the South African intelligence services are more committed to transparency and accountability. The Minister's argument in this case indicates that he believes that once documents have been classified, such classification is final even when they form part of court records. Our contention is that once such documents are part of court records, the Minister would have to apply to court to have those court records (or the contentious parts of them) declared classified. Court records, as a rule, should be unclassified in their totality.

Our legal system has as a basis the notion that justice should not only be done but should be seen to be done; this is part of the essence of transparency. If government ministers were able to decide what parts of court records should or should not be available to the public, that notion is undermined and could be construed as an abuse of the judicial process. This is the reason that the legislation and policy document relating to classification do not refer to the exclusion of classified documents from court records. If the Minister could decide that parts of court records are classified without having to apply to the court to do so, the public's right to know and the principle of open justice will also be eroded.

The Constitutional Court's media summary and the parties' submissions on this case, including the FXI's application and heads of argument, are available at

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