At the request of the Law Society of the Cape of Good Hope, the CLS Constitutional Affairs and Human Rights Committee met to consider the Anti-Terrorism Bill, 2003.
The Committee noted that the objects of the Bill, set out in Government Gazette No B12-2003, are to -
provide for the international and regional obligations of the Republic as part of South African domestic law;
provide for extended jurisdiction of the courts in relation to acts of terrorism and to give effect to the principle of ‘extradite or prosecute’ as required by relevant international instruments;
introduce measures to enable the Republic to act effectively against the financing of terrorism, including mechanisms for reporting of suspected incidents of financial and other support for terrorist organisations, as well as provisions on the seizure and forfeiture of terrorist property and the declaration of organizations as terrorist organizations;
facilitate the investigation of terrorist acts by providing for investigative hearings and powers of search and seizure and to provide for matters connected therewith.
The Committee offers the following comment -
The committee is of the view the Bill stands parallel to old security legislation and that the biggest concern for attorneys is the wide definition of a ‘terrorist act’. It noted that the European Union is finding its legislation difficult to implement because the definition of a ‘terrorist act’ is too wide. The committee is concerned that vague definitions of this kind can serve to undermine the commitment to and the uplifting of our Bill of Rights.
The committee is concerned that the Bill may cause the focus of any investigation into terrorist activities to shift from the commission of an offence to a mere suspicion, which is open to abuse.
By way of example, the Bill could conceivably be used to subpoena a priest to attend investigative hearings to disclose information heard during confessions. The question is whether a priest is entitled to rely on ‘just excuse’, as provided in section 189 of the Criminal Procedure Act, to refuse to disclose the information. Can the above inroad be declared as ‘justifiable’, given the need to address terrorism. The difficulty lies in the potential abuse of such provisions.
While Parliament is overtly responding to international pressure to curb terrorism, it is potentially slipping into spying and turning members of communities against each other. The committee agreed that Parliament should take special relationships into account, to protect attorney-client, priest-parishioner and community relationships. It vividly recalls how apartheid security legislation forced people to testify against on another on the pain of imprisonment.
The Committee believes that Parliament’s attention should be drawn to past bad experiences with similar legislation. Even if it is accepted that government is addressing its international obligations and that the Bill is not tabled in response to the South African right wing, the Committee believes that, prior to promulgating anti-terrorism legislation, it should be determined whether existing legislation is adequate to deal with these threats.
It seems that Parliament is moving to create catch-all legislation to deal with every conceivable act of terrorism. The Committee recommended that current laws and policing structures be tested first to determine whether there is sufficient machinery to investigate acts of terrorism; whether the ambit of existing legal provisions is sufficient to deal with such unlawful acts.
In summary, the committee believes that Parliament should avoid being pressured to adopt legislation, particularly because the memories of apartheid legislation are alive. The committee suggests that an effort be made to consolidate existing legislation. When this is done, the committee would be prepared to assist. The committee suggests also that the Bill be withdrawn, alternatively, that proper steps be taken to ensure that the legislation is constitutional.
The committee believes that the Bill, in its present form, may be unconstitutional. It is likely that the Bill will fail the constitutional test as it makes no reference to constitutional imperatives.
Failing withdrawal of the Bill on the basis that it does not address constitutional imperatives, the committee agreed that it might be useful for it to make suggestions as to how it might be improved.
The Committee believes that –
‘terrorist’ should be more narrowly defined;
the judiciary should not be involved in the investigative process, as an ostensible safeguard. In this respect, history will show that the involvement of the judiciary in the investigation of terrorism leads to the degradation of the judiciary and a low public image of it;
the committee noted a ‘drafting vacuum’ in the Bill as there is no link between the body of the Bill and the schedule of offences.
Other issues that need to be addressed include the use of information acquired through questioning – assuming it cannot be used against the person from whom acquired, can it be used against accomplices?
These are just some of the particular issues with regard to the proposed Bill. Should it be necessary, the Society will address its concerns with regard to a number of other provisions.
The Committee cautions Parliament against incorporating a negotiated international convention directly into domestic legislation. The usual and tested process is to ratify a convention and then to consider the extent to which it might be imported into domestic legislation. It is a lengthy process to negotiate a convention and to draft legislation. Parliament and the public should be afforded a proper opportunity to consider the treaties without fast-tracking the process. A proper link should also be provided between the international convention and proposed domestic legislation.
In closing, the Committee wishes to express its appreciation for this additional opportunity to make submissions. In need, the Committee is willing to formulate supplementary oral submissions.