[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.
For a constitutional law nerd like myself, bad legal advice provided to members of the Executive at national and provincial level (as well as the bad faith shenanigans of politicians more generally) provide exciting opportunities to discuss complicated constitutional law questions with fellow nerds. That is why I have spent the weekend engaged in several email discussions with my fellow constitutional law nerds about the president’s referral of the Secrecy Bill back to Parliament.
What all agree on is that President Jacob Zuma is indeed empowered by section 79(1) of the Constitution to refer the Secrecy Bill back to Parliament when he has genuine reservations about the constitutionality of the Bill. We also agree that it is clear from the referral letter that the president has not given Parliament a blank cheque to fix the unconstitutional sections of the Bill and that – as I pointed out before – celebrations about the referral were premature.
In a letter to the Speaker, Max Sisulu, President Zuma stated that the referral was for “reconsideration insofar as sections of the Bill, in particular sections 42 and 45, lack meaning and coherence, consequently are irrational and accordingly are unconstitutional.”
This can mean one of two things. It can mean only section 42 and 45 lack meaning and coherence and that the perceived lack of meaning and coherence is of such a nature that it renders the Bill unconstitutional. Or it can mean that these sections, along with other unnamed sections, lack meaning and coherence in such a way that these unnamed sections are, or the Bill as a whole is, unconstitutional.
If we go with the second, more generous option, it would mean that apart from sections 42 and 45, Parliament could only reconsider those sections of the Bill that actually lack meaning and coherence to the extent that they are unconstitutional. The many other perfectly rational and coherent sections (which might well be unconstitutional on grounds unrelated to their meaning and coherence) cannot be touched. Parliament therefore does not have the power to fix the Secrecy Bill to ensure its constitutionality.
But in the absence of more detailed and comprehensive reasons from the president on why the named (and, possibly, the unnamed) sections of the Bill lack meaning and coherence to the extent that they are perceived by the president to render the Bill unconstitutional, it is difficult – if not impossible – for Parliament to fulfil its constitutional duty to consider the concerns of the president. The president has a constitutional duty to provide clear and detailed reasons for his referral to Parliament to ensure that Parliament can do its job. The fact that he has not provided such reasons is worrying.
Our system of separation of powers is often described as establishing a structured dialogue between the three branches of government. Each branch has the power to check up on the exercise of power by the other two branches. Where the president sends back legislation because of its perceived unconstitutionality, he engages in such a structured dialogue with the legislature. But for a dialogue to be meaningful, the president needs to provide detailed reasons for his referral (in the same way that the Constitutional Court needs to provide detailed reasons for a decision to declare provisions of an Act unconstitutional).
In the absence of such reasons, Parliament may not be capable of attending to the reservations the president has formed about the constitutionality of the Bill because members of Parliament would not know exactly what these reservations are. Cryptic letters like the one sent by President Zuma to the Speaker therefore have implications for the proper functioning of the separation of powers doctrine. And as I will explain later, it also has potential implications for the constitutionality of the amended Bill.
This is so particularly because badly drafted legislation – even legislation that lacks meaning and coherence – is not automatically unconstitutional. A badly drafted Bill, one riddled with grammar and spelling mistakes, or one that fails to give effect to the actual intention of the legislature, will not necessarily be unconstitutional. There would only be a basis for the president to form reservations about the constitutionality of a Bill (a legal prerequisite for a referral back to Parliament) where the lack of meaning and coherence of sections of a Bill could conceivably lead to the Bill infringing on the constitutional rights of people or where a properly constructed provision could conceivably have rendered an otherwise unconstitutional Bill constitutionally valid.
If the Bill were referred back to Parliament only because of a “litany of spelling errors and bad grammar” (as a source in government told the Sunday Times) the referral would be improper and invalid as it would have been based on a misreading of the president’s powers. The president has no power to refer a Bill back to Parliament merely because he dislikes sections of the Bill, because Parliament drafted it badly, or because Parliament failed to criminalise actions the president thinks need to be criminalised.
I am told the president referred section 42 back because Parliament “accidentally” linked it to a breach of section 15 (and thus rendered a failure to comply with the requirements of section 15 as a criminal offence) instead of section 13 of the Bill. Section 13 requires anyone in possession of classified documents knowing that they were unlawfully communicated to hand such records back. At the moment failure to do so is not criminalised (but it will be criminalised if section 42 is amended to refer to section 13 instead of section 15). Such an amendment will amplify the infringement on freedom of expression as it will criminalise those who fail to hand back classified documents. It would make it more difficult to hold on to information leaked to you by other sources with the aim of exposing corruption or maladministration.
It may be that Parliament intended to refer to section 13 and not section 15 when it drafted section 42 of the Bill, but it is unclear how this failure of Parliament to create a criminal offence in cases where people are in possession of classified documents could have led the president to form reservations about the constitutionality of the Bill. Quite the opposite is true: the failure of Parliament to ensure section 42 referred to section 13 (instead of section 15) renders the Bill less constitutionally problematic because it is less invasive of the right to freedom of expression. I am therefore not so sure the referral of section 42 could rationally be said to fall within the powers afforded to President Zuma by section 79(1).
I have also been told that section 45 was referred back to Parliament because it is thought to have failed to create criminal offenses in cases where an official or Minister wrongly classified documents to hide corruption or to try and protect the government from embarrassment. If the section had indeed failed to criminalise the corrupt classification of documents it would have made the Bill even more unconstitutional than it currently is. A referral by the president would then have been more than competent.
But although section 45 has peculiar grammar and punctuation it is clearly not an unconstitutional provision as it is reasonably capable of being interpreted to create criminal offenses. Our courts have said that where a section is reasonably capable of being interpreted in a manner that would render it (or the piece of legislation) constitutionally valid, it should be interpreted in this way. This is usually referred to as “reading down”. If you use the “reading down” technique as required by the Constitutional Court and you read section 45(1) together with section 45(2) it is clearly reasonably capable of the meaning below:
“Any person who intentionally classifies state information as top secret, secret or confidential in order to conceal corruption; promote or further an unlawful act, inefficiency, or administrative error; prevent embarrassment to a person, organisation or the Agency; or give undue advantage to anyone within a competitive bidding process is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15, 10 or 5 years respectively.”
I therefore cannot understand why anyone could say section 45 is unconstitutional because of its lack of meaning and coherence. Yes, section 45(1) seems to end mid-sentence. But read with section 45(2) nothing important turns on this (except if you happen to be a grammar Nazi) as it does create criminal offenses as intended.
Of course, it might be that the president’s lawyers are not aware of the Constitutional Court jurisprudence on “reading down” and that they advised the president wrongly. The president would then have formed reservations about the Bill because he was wrongly advised about the constitutionality of section 45. (I am assuming – in a less sceptical mood than Friday and to give the president the benefit of the doubt – that section 45 was not referred back to Parliament because the president wants to stop the criminalisation of classification aimed at hiding corruption.)
An interesting legal question is whether such an error would render the president’s referral to Parliament invalid and would thus render the newly amended Bill invalid in its entirety. Section 79 is formulated in wide terms. If the president refers a Bill back to Parliament because he has rationally formed reservations about its constitutionality, the referral would be competent.
But what happens if the president formed these reservations based on clearly wrong legal advice of lawyers unaware of the “reading down” principle or on advice of lawyers who did not realise that section 79 does not grant the president a general veto power over badly drafted legislation? What if the president’s lawyers actually wrongly believed that all badly drafted legislation is not only irrational but also unconstitutional?
And what happens if the president’s reservations were not in fact with the unconstitutionality of the Bill, but merely with the incoherence not related to the constitutionality of the Bill or with the grammatical and spelling errors in the Bill? Would this mean the president misconstrued his powers and that the referral was incompetent? What happens if Parliament fixes the spelling and grammatical errors in the Bill that could not conceivably have rendered the Bill unconstitutional? Would it then have overstepped its mandate by fixing bad drafting and not fixing unconstitutional aspects of the Bill as they are empowered to do by section 79(2)?
And if the referral was incompetent (or if Parliament wrongly changed aspects of the Bill that could not conceivably relate to its unconstitutionality) would that render the Act eventually passed by Parliament and signed by the President unconstitutional because of the procedural defects in the adoption of the Act?
I am sure these questions will eventually be aired before the Constitutional Court. But it does leave me with a glimmer of hope. What it means is that the inept and badly motivated referral of sections of the Secrecy Bill (sections that are not in the least constitutionally problematic) potentially opens the door for lawyers eventually to argue that the final product in its entirety is unconstitutional because an unconstitutional procedure was followed to pass the Bill. When the constitutionality of the Secrecy Bill is finally considered by the Constitutional Court lawyers will thus be able to go beyond specific provisions to try and torpedo the Bill as a whole.
These arguments would be complicated to make and it is not clear whether the Constitutional Court will agree that an incompetent referral of a Bill to Parliament in terms of section 79(1) (where the incompetence is not based on bad faith) or an incompetent fixing of grammar and spelling in a Bill by Parliament (not done in bad faith) will render the final Act eventually passed by Parliament unconstitutional because of procedural defects. But surely it will at least be worth trying to convince the court that it does.BACK TO TOP