Protection of State Information Bill: referral back by President

Ad Hoc Committee on Protection of State Information Bill (NA)

10 October 2013
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Chairperson summarised that on the previous day the Office of the Chief State Law Adviser (OCSLA) had tabled suggestions revision for clauses 42 and 45 of the Protection of State Information Bill. A later document, tabled at this meeting, provided the latest version of the proposals for clause 45. The Chief State Law Adviser added that when checking the Bill again, three typographical errors had been detected, and he proposed that it would be in the power of the Committee to change them now. They were correcting clause 1, where the word “constitutional” had been mis-spelt, clause 8, in lines 13, where the word “an” should be omitted, and in line 36, where “foe” should be substituted with “for”.

The DA felt that no grammatical corrections could be made, on a strict interpretation of the powers of the President in section 79 of the Constitution, and thus suggested that this should not be done. The concern was repeated that the DA took the position that the President should be asked to clarify what exactly the letter to the Speaker meant, and that the DA would be abstaining from voting as it did not believe correct procedures were being followed, although in principle the corrections to clause 45 were welcomed. ANC Members believed that it made sense for the Committee to correct patently incorrect technicalities that did not affect the meaning of the Bill, but did not agree with the IFP standpoint that the Constitution required a review of the whole Bill, not merely the points raised by the President, since the clauses were cited in an inclusive, not exclusive manner. After further debate, it was clear that the parties still maintained different positions.

A formal vote was taken on clause 45, which the majority of Members (all from the ANC) voted to amend, in line with the latest draft from OCSLA. In a formal vote on clause 42, the majority of Members agreed to substitute the reference to “section 15” with the correct reference to “section 13”. Finally, Members agreed to accept the grammatical corrections in respect of clauses 1 and 8, as proposed by OCSLA. The DA, IFP and COPE abstained from voting, with COPE repeating its views that the Committee should be allowed to consider clauses other than clauses 42 and 45.

The Chairperson ruled that the IFP representative, Dr Oriani-Ambrosini, would be regarded as entitled to speak at the Committee even if not formally noted as a Member of the Committee. Dr Oriani-Ambrosini made a formal proposal for correction of clause 20, by putting a comma, instead of a full-stop, at the end of clause 20(1)(c), deleting the number (2), and running the sentence that was formerly in subclause (2) on from clause (1)(c). There was no seconder for this proposal and it accordingly fell away.

Members then considered the draft Committee Report, which was fairly standard. The IFP raised a request that, in line with the NA Rules, the minority views of the Committee should be accommodated in the Report. ANC Members had a different interpretation and noted that the Report differed from the minutes of the Committee, and said it was only appropriate to note the views of a “Committee” and not of “parties”. The DA proposed a formal amendment that recorded its opposition to the Report and the reasons why it had abstained. That was not accepted. The majority of Members believed that the Committee report should be accepted as drafted, but were eventually persuaded by the Chairperson to include a simple statement that the DA, IFP and COPE recorded their objections, without stating why – this would be left to the parties to elaborate upon in the House. The business of the Committee was announced as having been concluded.

Meeting report

Protection of State Information Bill: referral by President
The Chairperson noted that the decision taken by the Committee on the previous day was that the Committee would consider the revised clauses prepared by the State Law Advisers (as handed out), in respect of both clause 42 and 45.

The amendment to clause 42 was fairly technical: the reference to ‘section 15’ was now replaced with a reference to ‘section 13’. This had been largely disposed of on the previous day.

Clause 45 was also corrected. Subclause (2) created penalties. Content and punctuation had been revised.

The Chairperson noted that there was one error in the document that the Office of the Chief State Law Adviser (OCSLA) had presented on the previous day but a new draft had been circulated (see document).

Mr Enver Daniels, Chief State Law Adviser, OCSLA, said that the new document set out the proposal for clause 45(1).

He added that on checking the Bill again, the OCSLA had picked up some typographic errors, and was proposing that these should also be corrected. They appeared in clause 1, where the word “constitutional” had been mis-spelt, clause 8, in lines 13, where the word “an” should be omitted, and in line 36, where “foe” should be substituted with “for”.

Ms M Smuts (DA) asked for a pointer as to what exactly differed in the versions of the OCSLA document tabled on the previous day, and earlier in the afternoon.

Mr Daniels said that certain words had been deleted under (2), and Ms Smuts thanked him for pointing them out.

Ms Smuts thought that this Committee could not make any grammatical corrections at this stage. The President had only a limited power to refer matters back – as set out in section 79 of the Constitution – when there were concerns of a constitutional nature.  She therefore believed that the Committee should not accede to Mr Daniel’s further suggestion to tidy up the mistakes. For this reason, the DA would be abstaining from voting on the matters, although she was pleased to note the corrections being made to clause 45, as proposed by herself and Mr S Swart (ACDP) in the past.

Mr Daniels responded that the corrections he was proposing in clauses 1 and 8 were technical and this was done frequently with Bills, where grammatical errors could still be corrected to ensure that bills made sense, and he was suggesting nothing radically different from this. The President had not specifically raised issues of language, grammar and punctuation, but he did believe that it was in the power of the Committee to deal with the matters nonetheless.

Dr M Oriani-Ambrosini (IFP) set out his position on the Bill. He believed that the Constitution required a review of the whole Bill, not merely to address the points raised by the President. The two sections that the President had referred to were cited in such a way that they were inclusive, not exclusive, as indicated by the words “in particular..” He had raised the question with Mr Daniels why the other poor drafting was not being addressed. His interpretation was that if the Committee was reviewing the Bill, then it should do an entire review and he believed that matters other than grammar could also be reviewed.

Ms Smuts said her view differed. She cited the comments of Judge Cameron, who had said that when President referred matters back to the NA, he had to be specific. This was the legislative arm of government, and if it started allowing this kind of vagueness that basically was authorising anything to be done, then it was no longer acting properly as the legislative authority. She still maintained that the instruction from the President had been unclear, which was why, in her view, it was not possible to deal properly with the matter in this Committee.

The Chairperson noted that Members were now simply repeating points that they had raised on the previous day.

Dr Oriani-Ambrosini said that the President had the power to refer back, but this was circumscribed by the duty that referrals must relate to specific grounds on which there were constitutional concerns. The second issue was whether, when a matter was referred back to Parliament in these terms, the power of Parliament would be limited. He was not questioning the grounds on which the President could exercise the powers. His argument, however, was that in terms of section 79 of the Constitution, this Committee would have to review the whole Bill. It had plenary power, and it was now again in charge of the Bill. The President had opened the door, in his reading of the Constitution and the process, and he firmly believed that this Committee had the power to go beyond the specific clauses mentioned by the President.

Mr M Sonto (ANC) maintained that section 79(1) of the Constitution was restrictive and that it confined Parliament to addressing only the clauses identified by the President. The Speaker had directed the attention of this Committee to section 79(1) of the Constitution, and the Committee had to act in accordance with that. He was of the view that the Committee had powers to correct what was clearly wrong and made no sense, in terms of the grammar or spelling, and said that it made absolutely no sense to retain the word “foe” when it was quite clear that it should read “for”, as the word “foe” put an entirely different construction on the clause. He concurred with Mr Daniels on the point of grammatical corrections, reiterating that it made no sense to keep a Bill that contained incorrect words that could change the whole complexion of the Bill.

Ms Smuts noted his point and said that they must then agree to disagree on this point.

The Chairperson made the point that the President may need to clarify.

Ms Smuts said that this was why she was abstaining; she firmly believed that this approach should have been adopted.

The Chairperson continued, saying that he thought that nothing much turned on whether the narrow or broader view was adopted. In his view, the President could not raise matters of punctuation or spelling errors unless they were of such a nature that they could render the Bill unconstitutional. The President was restricted to powers as set out section 79. He had the power to veto Bills, but he could not refuse to sign unless his reservation related to a constitutional point. The question then was whether the Committee and Parliament should interpret their own powers so narrowly that they could not correct an obvious spelling error that did not make a real difference in the reading of a Bill. The should have been corrected when the Bill went for printing, and he was not sure what had gone wrong in that process that they remained.

Ms Smuts interjected that the errors had been pointed out to the Committee when it had met previously.

The Chairperson said that he would adjourn the meeting if Members continued to interject while he was speaking.

He continued that the question was to  what extent the Committee wanted to be on “the wrong side of meticulous”. He believed that if this technical point were to be referred to a court, the judges would laugh at the Committee. He took the points of Dr Ambrosini, which went a little further than merely correcting spelling errors, but cautioned that if the Committee started to tamper with other clauses, it might be interfering with constitutionality. Dr Ambrosini had suggested that there were similar problems in other sections and they should also have been amended.

The Chairperson suggested that it was probably appropriate to recommend to the House that the punctuation and spelling corrections should be effected, as suggested in the latest OCSLA document, and the Bill altered to that extent. He believed it would be irresponsible not to make this recommendation.

Dr Oriani-Ambrosini wanted to refer the Committee to clauses 20(1) and (2). He stated that these clauses were not written in English, but in “moral-ese”.

The Chairperson asked if Members had any more comment on clauses 42 and 45. Having obtained confirmation from some Members that they were happy with the clauses, he called for a formal proposal.

Clause 45
Mr M Sonto (ANC) proposed that the proposals of the OCSLA as contained in the latest document be accepted in respect of clause 45. The proposal was seconded.

The Chairperson called for a vote and the majority of Members (all ANC) voted in favour of the changes to clause 45.

The Chairperson asked if there were votes against the clause.

Ms Smuts noted that the DA was abstaining from voting. She was pleased that the changes were being made, but would abstain from voting for the reasons already stated.

She commented that although the ACDP was not represented at the meeting, it had indicated that it would also have wished to abstain.

Dr Oriani-Ambrosini wanted the abstention of the IFP to be noted.

Mr D Kganare (COPE) believed that the instruction from the President allowed the Committee to consider more matters; in his view, clauses 42 and 45 were merely cited as examples. He did not want to open up the issue again, but wished this to be recorded to explain why he was not supporting the proposal.

The Chairperson noted that the majority of Members had therefore agreed to effect the amendment to clause 45.

Mr Sonto wanted to raise a point of order, as to whether the situation of the IFP representation had been confirmed, as raised on the previous day.

The Chairperson noted that the Committee had decided to proceed on the basis that Dr Oriani-Ambrosini should have been formally recognised as a Member of the Committee. If there was any irregularity in this, it should not be regarded as affecting the business and resolutions of the Committee. Nothing actually turned, in the end result, on whether Dr Oriani-Ambrosini was “officially” named on the system.

Clause 42
Ms Smuts asked that a formal decision be taken on clause 42.

Ms S Shope-Sithole made a proposal that clause 42 be amended, which was seconded by Mr Sonto.

The Chairperson noted that the majority of Members present (all from the ANC) voted in favour of the proposal to amend the reference to section 15 to section 13.

He noted the abstentions from voting by the DA, COPE and IFP.

Clause 20
Dr Oriani Ambrosini made a formal proposal that clauses 20 must be corrected. When asked to expand on this by the Chairperson, he noted that he was proposing:
- in subclause 20(1)(c), the replacement of the full stop after the word “appointment”, with a comma
- the deletion of the number (2)
- the substitution of the capitalized “The” with lower case “the”, and the running on, after I(c) of the content of the former subclause (2), so that it read: “….candidates for appointment, the Joint Standing Committee on Intelligence must table….”.

The Chairperson asked if there was any seconder for this proposal.

When no seconder came forward, the Chairperson noted that the proposal fell away for lack of support.

Grammatical corrections
Mr Sonto formally proposed the acceptance, by the Committee, of the correction of typographic errors as proposed by the OCSLA, in clauses 1 and 8.

The proposal was seconded by Mr J Maake (ANC).

Members voted, and the majority of Members accepted this formal proposal. The abstentions of DA, IFP and COPE were noted.

Committee Report
The Chairperson said that the Committee Secretary had prepared a draft Report, which was circulated to Members. He said that this was in line with the manner in which the matter would be reported back to Parliament.

Dr Oriani-Ambrosini raised a request that the minority views of the Committee must be accommodated in this Report. He referred to the NA Rules, and pointed out that they required that committees, when reporting on Bills, should report upon each minority view, if requested to do so.

Mr Sonto shook his head to indicate his disagreement with this.

Dr Oriani-Ambrosini said that he was concerned that what was set out in the Rules had not been recorded in the draft Report. He believed that the current Report fell short in that it did not mention that the Committee had not allowed for additional considerations of the constitutional prescripts to be considered by the Committee, and he wanted that recorded.

Mr Sonto said that the Report was one from the Committee, not from parties. The structure of the report should reflect the decision of the Committee as a whole, and he did not believe that it should accommodate other views. He did not agree with Dr Oriani-Ambrosini, and said that a distinction must be drawn between the Minutes and the Report.

Ms Smuts requested that the Report be amended with further inclusions reflecting views of the DA. She noted that she would like something to be added noting that the DA had taken the view that the Committee should have requested clarity from the President on the matters of concern on constitutionality, and for this reason it was abstaining from voting.

Mr Sonto said those wishing to abstain must abstain in the House. He repeated his view that the Report should be one of the Committee, and should not express individual views. For this reason, he suggested that it was not possible to accede to the request from the DA.

Dr Oriani-Ambrosini said that the Rules of the NA were very clear, and this should not be a matter for discussion.

The Chairperson said that the matter was closed.

Ms Smuts said that she was requesting that the Report incorporate the comment from the DA.

The Chairperson countered that he would not see any problem in recording that the opposition parties had voiced objections. It was, however, up to the parties to specify what their objections were, in the House. If the DA insisted on these words, he would merely suggest that the Report in its original form be adopted.

Dr Oriani-Ambrosini asked why the Committee was not being governed by the Rules.

The Chairperson asked what he meant by that.

Dr Oriani-Ambrosini responded that the Chairperson, particularly given his position, should read the Rules.

The Chairperson repeated that the DA had proposed an amendment, as read out by Ms Smuts. He said that the proposal before the Committee was that the draft Report be accepted, with the addition of the wording: “The DA takes the view that the Committee should have requested clarity from the President on the matters on which he had reservations as to the constitutionality, and accordingly abstains from voting”.

Mr Maake was opposed to that additional wording being added, and said that he wanted to propose a motion that the draft Report, as presented by the Committee Secretary and without the addition of any other wording, be accepted.

A formal motion having been moved to that effect, the Chairperson noted that the majority of Members were in favour of accepting the draft Report, not amended.

The Chairperson then asked if there were any seconders for the view of Ms Smuts that the Report should be amended by the addition of the note on the DA’s view.

Mr Kganare said that he would only second this if Ms Smuts permitted him to make a change to it.

The Chairperson wanted to ask Members if they would have any objections – and this was not a formal proposal – if it were to be noted that the DA had objected to the Report. That would be all that was said, without going into the details.

Dr Oriani-Ambrosini made the point that if this was to be noted, then it should also be noted that the IFP had objected.

Mr Kganare said that putting forward the majority view only was creating the impression that all parties had agreed. He amplified on his earlier comment that he would be prepared to second Ms Smut’s proposal for an amendment of the Report if it made reference also to the IFP and COPE.

Mr Maake recorded his objection against this addition as well. He noted that the matter had been put to the vote and the DA proposal was defeated so it must simply accept that. If wording had been negotiated, he might be inclined to agree, but in this case the decision was taken on a simple vote.

Dr Oriani-Ambrosini repeated his strong concern that the whole process was contrary to the NA Rules. He wanted to place on record that there had been no accommodation of the minority views, and the fact that this was not allowed made the Report contrary to the Rules of Parliament, and of the principles of democracy, and showed contempt of the basic rules of dialogue, when the Committee was not even prepared to entertain a motion to correct flagrant grammatical inconsistencies. In his view, this showed that there was an intention to be governed by rules and not by the will of the people.

The Chairperson clarified what he was suggesting to the Committee, that there be a simple statement that other parties had recorded objections.

Mr Sonto thought that this kind of statement should be in minutes, but not in the Committee Report.

The Chairperson reiterated that he took the point between the different functions of minutes and reports, but was simply proposing that the Committee record that the opposition parties had objected.

Mr Maake still maintained that once a vote had been taken, the matter was finished. If this was not done, people would be granted a power that they did not rightly have. He did not see any need for compromise. The matters had been debated on the previous day, and time had been wasted in debating the views of others. He thought it was a simple matter that those losing on a vote must accept that as they had no muscle to do anything more.

Ms Smuts said that what he was essentially saying was that “might is right”.

The Chairperson said that the Report, as it stood, was essentially much the same as the minutes. The minutes could record additional matters, such as who attended, times but would not necessarily record the views. He noted that the NA Rules did say that if there was a unanimous decision, then it was in order that minutes were not needed. However, if the decision was not unanimous, he felt that it was appropriate to record merely that the opposition parties had raised objections. The reasons for objection were not the issue here. He drew the distinction between what the DA had suggested, which had referred to reasons, and his own suggestion, which was merely to record that three parties had objected.

He urged Members to think on this point again. He made the point that people would be very surprised if the objections were not noted.

Mr Maake said that the Chairperson had persuaded him on the point, and he would not oppose the addition of an extra sentence to the Report.

The Chairperson said that the Report of the Committee was essentially worded exactly how the Committee had agreed earlier, but with the addition of the words “The DA, COPE and IFP objected”.

Members agreed to this revised Report.

The Chairperson noted that this concluded the business and the meeting was adjourned.



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