The draft Protection of Information Bill does not pass constitutional muster, the General Council of the Bar of South Africa (GCB) said on Friday.

As is customary, the bill was provided to the GCB for its comment, and the council has submitted its report to the relevant Parliamentary committee.

In its report, the GCB raised several concerns about the content of the bill.

While the bill contained certain useful provisions, it also contained a number of provisions that were plainly inconsistent with, and indeed contrary to, the foundational values of the Constitution, the GCB said.

These included those of openness and transparency in government and the accountability of government to the electorate.

The Constitution provided that the Republic was a democratic State founded on the values of, among others, accountability, responsiveness and openness.

The Constitutional Court had recently remarked that "[the] systemic requirements of openness in our society flows from the very founding values of our Constitution, which enjoin our society to establish democratic government under the sway of constitutional supremacy and the rule of law in order, among other things, to ensure transparency, accountability and responsiveness in the way courts and all organs of State function".

"The GCB is of the view that several of the provisions of the bill are inimical to these foundational values of our Constitution," it said.

Among other things, information genuinely requiring protection from disclosure, and which in terms of the Constitution could legitimately be withheld from a person desiring access to it, could already be kept out of the public eye in terms of the Promotion of Access to Information Act (PAIA).

Section 32 of the Bill of Rights provided that "everyone has the right of access to any information held by the State", and provided further that national legislation be enacted to give effect to this right.

This provision was subject to section 36, which provided that all rights, including the right of access to information in terms of section 32, could be limited only in terms of law of general application to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, but that no law could otherwise limit any right entrenched in the Bill of Rights.

The preamble to the PAIA made clear the Act was promulgated to give effect to section 32 of the Constitution, but with due regard to the limitation provision in section 36, and contained provisions detailing the grounds on which access to information could be refused.

These included circumstances where disclosure of information could reasonably be expected to cause prejudice to the defence or security of the country, or certain information that might harm international relations or the economic interests and financial welfare of the country and public bodies in circumscribed circumstances.

It was therefore difficult to discern why further protection of that sort of information was required, or what legitimate state purpose was served by the additional classifications of information envisaged by the bill, the GCB said.

To the extent that the bill envisaged withholding information that would require disclosure under the PAIA, the GCB considered it contrary to the Constitution and an unjustifiable limitation of section 32.

There were other provisions in the bill that also involved an unconstitutional infringement of the Constitution, which provided that "everyone has the right to freedom of expression, which includes freedom to receive or impart information or ideas which includes (a) freedom of the press and other media; [and] (b) freedom to receive or impart information... ".

The Draconian custodial sentences, without the option of a fine, contained in the bill, were markedly out of proportion to any purported benefit derived from shielding classified information.

By means of classification, government departments and officials could prevent the public gaining access to any documentation unless the information were first declassified, and could through this classification process effectively shield themselves from scrutiny.

The bill would inevitably make it considerably more difficult for the media, independent watchdogs and any other interested persons to obtain information about irregular or dishonest conduct by state officials, or to expose wasteful spending and maladministration.

The classification system, coupled with the Draconian punishments for non-adherence to the bill's provisions, made it far less likely that any concerned government employee who was or became aware of corruption or ineptitude would bring this to the attention of any outside party.

The vagueness of the concept of "national interest" also made it easy for government officials reluctant to expose themselves to scrutiny to preclude the public from examining their actions and decisions.

The classification system of information envisaged in the bill might also prejudice litigants in court, and would certainly make it considerably more cumbersome and protracted to tackle an organ of state on improper or corrupt practices, the GCB said.