[Justice] Scalia tends to lampoon his enemies. A “ ‘living-Constitution’ judge,” he explained, is a “happy fellow who comes home at night to his wife and says, ‘The Constitution means exactly what I think it ought to mean!’ ” By contrast, Scalia said, he was sometimes forced by the rigors of originalist methodology to make decisions that lead to consequences he finds repugnant.
The Mail & Guardian must be spending quite a handy sum of money on lawyer’s fees. But this money is largely well spent. The newspaper has been involved in several groundbreaking court cases, which have clarified important aspects of media freedom (as well as an important case dealing with the obligations of the Public Protector to investigate maladministration and corruption).
In Mail & Guardian Media Ltd and Others v Chipu N.O. and Others, the seemingly mundane question of whether a provision of the Refugee Act, which imposes absolute confidentiality in the handling of applications for refugee status and the information contained therein, allowed the newspaper to raise important questions about how secrecy can work against the public interest.
In finding that this absolute secrecy imposed on the refugee granting process by the Refugee Act constituted an unjustifiable limitation of the right to freedom of expression, the Constitutional Court in a unanimous judgment authored by justice Raymond Zondo, reaffirmed the important purposes served by the right to freedom of expression.
The Court recalled that the infringement of the right to freedom of expression was used in the Apartheid era “to achieve the degree of thought control conducive to preserve Apartheid and to impose a value system fashioned by a minority on all South Africans”. It thus re-affirmed that this right must be zealously guarded because it was integral to “democracy, to human development and to human life itself”. One of the many differences between the Apartheid era and our current dispensation was exactly that freedom of expression is now constitutionally protected.
A key purpose of this right is to enable the public to form and express opinions on a wide range of matters. The purpose of the right therefore goes far beyond the protection of journalists to write what they like. Quoting from a previous judgment, the Court stated that freedom of expression“lies at the heart of democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.
As is the case with many other rights in the Constitution – including the social and economic rights – the right to freedom of expression is of fundamental importance to safeguard the human dignity of everyone. Where the right is not vigorously protected, ordinary people will be robbed of the ability to make important life choices. Their ability to exercise many of their other rights guaranteed in the Constitution would also negatively affected.
For example, freedom of expression empowers members of communities to expose maladministration and corruption, and to demand better service delivery from those elected to serve the people. When the right to freedom of expression is not protected, it becomes very difficult to be an active and responsible citizen, as you cannot hold elected servants of the people accountable for fear of being muzzled, intimidated, censored or harassed.
Although the protection of this right is of fundamental importance to safeguard the dignity of ordinary citizens, the media plays a key role in society, and is therefore not only protected by the right to freedom of expression but is also a key facilitator and guarantor of the right.
As the Constitutional Court once again affirmed, members of “the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.” The media therefore have an “obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility.”
This means that when the right is limited – as is clearly also the case with the Secrecy Bill – a court will ask hard questions about whether the limitation is overbroad. This is because the limitation is not only imposed on the media, but on citizens who depend on the media to become informed about what goes right and what goes wrong in the country.
Put differently, the court will ask whether there are not less restrictive means of achieving the stated purpose of a piece of legislation that limits the right to freedom of expression (and by extension, the media).
In this case, the provision that imposed absolute secrecy on the asylum process obviously served several important purposes. Secrecy protected the integrity of the asylum process; it encouraged applicants for asylum to disclose information truthfully; and it protected asylum applicants and their families and friends in their countries of origin from possible dangers or threats to their lives and safety that could arise if the fact of the application for asylum and the information contained therein were disclosed.
But the imposition of absolute secrecy was not justifiable as it was clearly overbroad and imposed secrecy where the purposes set out above would not be served or would be trumped by the public interest.
As the Court pointed out, no purpose was being served by an absolute imposition of secrecy on the asylum process in the case of a person who, after arriving in South Africa, discloses publicly, maybe in a press conference, the reasons why he fled his country of origin and other information that is relevant to the asylum application. In such a case no purpose would be served by the absolute secrecy imposed by the provision of the Refugee Act.
Similarly where the asylum applicant has committed a crime against humanity or a crime against peace in his or her country of origin, refugee status would not be granted. There was no logical reason why the Refugee Act should impose absolute secrecy on the application for refugee status or for asylum. In such a case, the public interest in knowing that a person who has committed a crime against humanity is applying for refugee status would trump the interest of the applicant to have the process kept secret. What was required in each case was to ask whether the imposition of absolute secrecy was essential to achieve the important purpose of protecting innocent asylum applicants.
This line of reasoning, which invokes the public interest as an important factor to justify the waiving of rules which otherwise would have imposed absolute secrecy, might well become relevant when the Constitutional Court considers the constitutionality of the Secrecy Bill. Previous drafts of the (now drastically improved) Secrecy Bill would almost certainly have failed this test, as it made no provision for overriding secrecy in the public interest. Now, section 41 provides a partial public interest defence, amongst other in cases where classified documents reveal criminal activity.
What the Constitutional Court will have to ask is whether this partial public interest defence sufficiently narrows down the scope of the Secrecy Bill to justify the limitation. I am sure the argument will be made that it does not as it does not cover other disclosures of classified information in the public interest that do not rise to the level of criminality but “merely” deals with abuse of power, maladministration or covering up nepotism and other forms of non-criminal abuse.
However, I suspect the aspect of Secrecy Bill most vulnerable to attack is the definition of national security, which is defined in an open-ended manner, allowing the classifier to decide for him or herself whether specific documents would affect the national security or not. This kind of open-ended discretion allowing classifiers a wide discretion on how to define “national security” will almost certainly be abused and will hence be very vulnerable to attack.
In the Mail & Guardian judgment the Constitutional Court referred the impugned provision back to Parliament to be fixed. However, in the interim it provided a closed list of criteria binding on the Refugee Appeal Board whenever it had to decide whether secrecy was warranted or not. This interim remedy suggests that the Court is alert to problems that might arise when officials are granted a broad discretion that could be exercised in a manner that infringes on the fundamental right top freedom of expression.
This bodes well for the success of any future constitutional challenge to certain sections of the Secrecy Bill.BACK TO TOP