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Court ruling on disclosure of classified documents encourages and disappoints at the same time, says FXI

(FXI/IFEX) - The following is a 5 June 2008 FXI press release:

Constitutional Court's recent decision in the case of Independent Newspapers and the Minister of Intelligence encourages and disappoints at the same time

The Freedom of Expression Institute (FXI) has noted the judgment handed down by the Constitutional Court on 22 May 2008 in the application brought by Independent Newspapers (Pty) Ltd against Mr. Ronnie Kasrils, the Minister of Intelligence Services. The application sought the disclosure of the certain parts of the record of proceedings, in the matter of Masetlha vs. the President of the Republic of South Africa, that were deemed classified.

In that case, Mr. Masetlha, the National Intelligence Agency (NIA) Director-General, sought to have his suspension and dismissal by the President set aside as unconstitutional. The disclosure of certain documents, which were part of Mr. Masetlha's in camera deposition, was central to the debate surrounding secrecy vs. openness and the powers of the Court to declassify restricted information, even where the Minister alleges that such information affects national security.

The FXI was admitted as amicus curiae in the proceedings and submitted argument to assist the court in addressing the question of a proper procedural approach to be adopted when documents which form part of court records are sought to be withheld from the public.

We are disappointed to see that the majority of the Court has seen fit not to adopt the approach advanced by FXI, the objectives of which were to protect the adversarial nature of judicial proceedings, to facilitate the public's interest in opposing an order to restrict access, and to lay down the requirement that any order restricting access be made public and be accompanied by reasons and to ensure that the public are informed of any order granted which restricts access to records. Deputy Chief Justice Moseneke stated that he "was most reluctant to seek to impose a fixed and prior set of principles which are to apply in every case in which disclosure of a court record is an issue". He did however acknowledge that the principles advanced by the FXI were acceptable.

The FXI was deeply concerned by the Minister's argument that, once a document has been classified, not even a Court can lift that classification. The Minister's attitude towards the judicial review of the classification of documents brings into question the purpose behind the new Protection of Information Bill that has been introduced into Parliament recently, which, according the Minister, seeks to align the information protection regime with the values, rights and freedoms enshrined in the Constitution. It is important to note that the new Bill still contains certain problematic elements which the FXI and other groups will shortly be addressing in their submissions to the public hearings.

We welcome the sentiments espoused by the Justice Moseneke in this regard, whose majority view was supported by Justice Yacoob, Justice Sachs and Justice van der Westhuizen, making it clear that "the mere fact that documents in a court record carry a classification does not oust the jurisdiction of the court to decide whether they should be protected from disclosure to the media and public".

We hope that, having had sight of this judgment, the Ministerial team will look favourably on the submissions that are to be made on the Bill, given the fact that the court has firmly endorsed the principle of judicial oversight. FXI would like to see the perpetuation of this line of argument in the new Bill.

This affirmation of judicial oversight is heartening but the FXI still believes that practical problems exist in the struggle to ensure that the public are allowed to receive proper and timely information.

The problem remains a practical one, in that the applicant is at a considerable disadvantage in attempting to draw papers, while the Government can easily suppress and censor information that is in the public interest and should rightfully be in the public domain. To this end, the FXI will continue to plead the case for guidelines in the belief that this will create more certainty about the circumstances in which documents can rightfully be classified. If these guidelines are based on the principles of openness and transparency, they should help to ensure that "national security" is not used as a blanket excuse to shroud intelligence documents in secrecy.

This conflict between national security and the public's right to know creates a tightrope which the court must walk in determining the extent of the limitation which may be imposed on the right to freedom of expression. These competing interests are significant but it is our view that where there is uncertainty the court should always err on the side of openness.

Updates the Independent Newspapers Ltd. case: http://www.ifex.org/en/content/view/full/87869

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