SUBJECT: Comments on the draft Rules of the Joint Standing Committee on Intelligence (JSCI) submitted in terms of the Intelligence Services Oversight Act
1. Your request for comments on the draft Rules of the JSCI submitted in terms of section 2(6)(b) of the Intelligence Services Oversight Act, 1994 (the Act) refers.
2. I made some suggestions on the text of the Rules for ease of reference. Most of these relate to style and grammar. However, I would like to offer the following notes in regard to suggestions relating to substantial matters:
3. Clause 1: Definitions
3.1 The definition of "Agency" in rule 1 (2) follows the wording of the Act, as amended by the Intelligence Services Control Amendment Act No. 66 of 2002, insofar as it refers to section 3 of the Intelligence Services Act No 38 of 1994. However, the Intelligence Services Act No 65 of 2002 repealed the whole of the Intelligence Services Act No 38 of 1994. In my opinion it follows that the definition of "Agency" in the draft Rules should refer to the Intelligence Services Act No 65 of 2002.
3.2 Rule 1 (5) seems to contain an inherent contradiction. Furthermore, I found no reference to "Assembly Rules on discipline" in the Joint Rules and hence I suggest that this definition be removed.
3.3 The way in which the Constitution is cited in the definition of "President" in rule 1(17) should be consistent with the citation as provided for in the Citation of Constitutional Laws Act, 2005; in other words, no Act number should be associated with the Constitution.
4. It is not clear whether rule 19(3) must apply to the Secretary of the Committee. If it must apply, I suggest that the following phrase be inserted after the word "Chairperson" at the end of the sentence
"with the administrative assistance of the Secretary."
5. In my opinion rule 21 (2) should apply to any person and not just to members of the Committee. In this regard section 5(2) of the Act refers to "person". My concern is that members of staff are not covered by this rule. I therefore suggest that the rule be drafted as follows:
"No person shall disclose any intelligence, information or document the publication of which is restricted by law and which is obtained by that person in the performance of his or her functions in terms of the Act, except - ... "
6. In my opinion rule 22( 1) does not follow logically from section 4( 1 )(b) of the Act as is intended. I suggest that the rule be formulated as follows:
"Intelligence information and documents must be handled in accordance with the written security guidelines and measures of, or the conditions prescribed or determined by, the chairperson with the concurrence of the Heads of the Services."
7. Rule 26: Discipline
7.1 As the purpose of rule 26(7) is to facilitate the disciplinary proceedings, I suggest that section 17(c) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004, which has a similar purpose, be followed. The rule can be drafted as follows:
"The respondent is presumed innocent, but must answer all questions lawfully put to him or her and produce any document in his or her possession or custody or under his or her control which he or she is required to produce, unless there is sufficient cause not to answer the question or produce the said document."
7.2 Rule 26(9) provides that the Committee may impose a sentence on the respondent, including a reprimand, suspension or expel the respondent, in which the case the sentence shall be imposed by the persons referred to in section 2(3)(b) of the Act. I am of the view that this rule should take cognisance of the purpose for the establishment of a multi-party committee as envisaged by the Act, as well as the provisions in section 2(5) of the Act. The Act envisages that the composition of the Committee remain constant. Therefore, the Act refers to replacing a member (see section 2(5)(b)). Therefore, I am of the view that suspending a member and so effectively altering the composition of the Committee, even for a limited period, is inconsistent with the purpose of the Act. I suggest that the rule be drafted as follows:
"27(9)(a) The disciplinary committee may, after hearing all the evidence, acquit the respondent or find that the respondent has conducted himself or herself in a manner which constitutes a threat to national security.
(b) If the disciplinary committee finds that the respondent conducted himself or herself in a manner which constitutes a threat to national security, the Committee must refer the matter to the Speaker or the Chairperson of the National Council of Provinces, as the case may be.
(c) If the Speaker or the Chairperson of the National Council of Provinces, as the case may be, with the concurrence of the President, acting after consultation with the leader of the party concerned, is of the opinion that the respondent conducted himself or herself in a manner which constitutes a threat to national security, the respondent must be replaced with a member of his or her party in accordance with section 2(3) of the Act; or, if the respondent is the chairperson, in accordance with section 2(4) of the Act."
7.3 Rule 26(10)
7.3.1 The rule provides that the Committee may institute criminal proceedings against the respondent. In terms of section 179(2) of the Constitution as well as section 20 of the National Prosecuting Authority Act, 1998, the National Prosecuting Authority has the power to institute criminal proceedings. Furthermore, in terms of sections 41 (1)( e) and (f) all spheres of government and all organs of state must respect the constitutional powers and functions of other spheres and organs and not assume any power or function except those conferred on them in terms of the Constitution. I am therefore of the view that this rule, as it is currently worded, is inconsistent with the Constitution.
7.3.2Furthermore, rule 26(10) should also take cognisance of the fact that the disciplinary proceedings is directly related to section 5(2) of the Act, which relates to a criminal offence. There is thus no discretion insofar as the matter should be referred for criminal investigation.
7.3.3Lastly, insofar as the evidence related to the disciplinary proceedings are covered by parliamentary privilege (see section 45(2) of the Constitution) it is not in my view necessary to state that proceedings of the Disciplinary Committee may not be admitted in a court of law.
7.3.41 suggest that this subrule be replaced with the following:
"If the evidence indicates that a criminal offence has been committed, the disciplinary committee must, in addition to any finding it may make, refer the matter to the National Director of Public Prosecutions."