MINISTRY OF INTELLIGENCE SERVICES
COMMENTS ON THE ADMINISTRATIVE JUSTICE BILL
AD SECTION 4
Section 4 of the Bill, makes provision for a procedurally fair administrative action, which adversely affects rights, interests and legitimate expectation.
Where an administrative action adversely affects the rights or interest, it must be procedurally fair.
A fair procedure in terms of the Bill includes inter alia, adequate notice of the nature of the action, reasonable opportunity to make representations, a clear statement of administrative action and adequate notice of any right to appeal.
This may further include access to information subject to limitations laid down in the Open Democracy Bill, and legal representation in complex cases. There is no definition of ‘complex cases’ in the Bill.
However, where circumstances justify it an administrator may depart from the requirements of the Bill, this will also be applicable where an administrator is empowered by any other law to deviate from the above mentioned requirements.
Further, the Minister of Justice and Constitutional Development may by notice in a Government Gazette in exceptional circumstances, exempt an administrator from the above mentioned requirements.
From an intelligence and security perspective, the requirements of a fair administrative action including the criteria for exemption as stipulated in the Bill, may be problematic in so far as implementation is concerned.
In practical terms, the implementation of sub sections (2) and (3) mean that a person whose rights are going to be affected or are affected by an investigation has to be informed before hand and they must be given an opportunity to respond to such intention to conduct an investigation, or such investigation that is taking place or has taken place.
A good practical example of an investigation is a clandestine operation in terms of Section 2 of the Interception and Monitoring Prohibition Act, 1992 (Act 127 of 1992).
In terms of this Act, the security services are empowered to inter alia, with the permission of a Judge designated by the Minister of Justice and Constitutional Development, to monitor conversations, and to intercept communications without the knowledge of the dispatcher of such conversation or communication.
In terms of section 3(5) of the Act, a direction by the Judge authorizing such an operation will be issued without any notice to the person, body or organisation to which it applies and will be without a hearing by such person, body or organisation affected.
The rationale behind this is:
- to deal effectively with serious offences that have been or are being or will be committed, and where offences cannot be properly investigated in any other manner; and
- to deal with situations where the security of the Republic is threatened or where necessary, information concerning a threat to the security of the Republic, has to be gathered.
- Adhering to the provisions of sub sections (2) and (3) will be impractical and will therefore undermine the investigations.
- This Act applies to the intelligence and security services and will definitely be one of the main investigating tools for the ‘Scorpions’.
- A similar process may be found in Section 5 of the Intelligence Services Act, 1994 (Act 38 of 1994), where the Agency and the Service where necessary, and after having being given a direction by the same Judge referred to above, can inter alia enter and search premises with the purpose of obtaining information which will enable the Agency or the Service to perform their counter intelligence functions and any other function contemplated in Section 2 of the National Strategic Intelligence Act, 1994 (Act 39 of 1994).
- Although the Judge may be regarded as a ‘judicial officer’, the functions he performs are of an administrative nature.
- Of course there are provisions for exemptions of administrators from the application of section 4(2) to (3).
- What is meant by ‘if circumstances justify it"? Who is going to decide that circumstances justify it? What is going to be the process or criterion for justified circumstances?
- Section 4(3) of the Intelligence Services Act 1994 (Act 38 of 1994) provides that the Director-General (of the Agency or the Service) shall as far as reasonably practicable, take steps to ensure that "national security intelligence, intelligence collection methods, sources of information and the identity of members of the Agency or the Service, as the case may be, are protected from unauthorized disclosure."
- The Intelligence Services Control Amendment Act, 1999 (42 of 1999) (not yet in operation at the time of writing this presentation), gives the Inspector-General unlimited access to information inside or outside the premises of the intelligence services for purposes of performing his watchdog functions over the intelligence services. Information or intelligence obtained in this regard is protected from unauthorized disclosure. It may happen that such obtained information warrants a further investigation, which may affect rights of the public.
- Will the Inspector General give notice before each investigation that will warrant access to information or premises for purposes of performing his or her functions effectively.
- These above-mentioned Acts empower these administrators to withhold information where necessary. Are these provisions adequate to justify deviation from sub-sections (2) to (3).
- Does the obligation imposed on the Director-General in terms of Section 4 of the Intelligence Services Act, warrant withholding of information before or after an administrative action? Does this limitation empower the Director-General as envisaged in sub-section (5) of the Bill and to deviate from the provisions of sub-sections (2) to (3).
SECTION 4 (6)
- What are the exceptional circumstances envisaged by the legislature, which may warrant the Minister to exempt the administrators from the application of sub-sections 4(2) and (3).
- How is the Minister going to practically implement this section? Is there going to be individual notices in the Gazette for each impending administrative action, whereby the Minister will apply his or her mind and exercise a discretion on whether to exempt a particular administrator or not. Is the Minister going to particular consult with his or her security colleagues before he exercises his or her discretion. Is there going to be hearings before the Minister, in order to satisfy him or her of the exceptional circumstances?
- Suppose there is going to be individual notices for each impending administrative action- this is impractical in the context of transnational crime given its complexity and the sophistication of the participants thereof. It will be irresponsible for the security services to have their intentions and operations advertised for public knowledge, and to sit and wait to deal with these criminal acts as they occur, whilst waiting for the Minister to exercise his or her discretion which has to be published in the government Gazette. Even if exemptions are given at the end of the day, the bureaucracy will undermine the effectiveness and clandestine nature of these investigations. Criminals will get to know when and how the security services are carrying out their business.
- What is of concern about this power of the Minister is that it is discretionary, which may lead to abuse of the power to the advantage of the security services, but to the disadvantage of the public thereby undermining the rights of the public, or to the advantage of the public but to the disadvantage of the security services, thereby causing harm to the security of the Republic.
- There are emergency circumstances which warrant urgent applications of directions issued under the Interception and Monitoring Prohibition Act, will these then have to wait for the Minister’s discretion, or for the administrator to exempt himself or herself and face legal challenge.
- Suppose the Minister is going to consult with his or her colleagues- what obligation does he have under the Bill to do so before the regulations are taken to Parliament. Will this process follow the normal passage of legislation making?
- Will there be time to consult in a coup de tat situation. Will there be ample time to publish in the Gazette for public knowledge under these circumstances?
- Publication in the Gazette is by its nature a long bureaucratic and technical process, which has to be done after prior arrangements with the office concerned. Emergency publications are only allowed under exceptional cases. Is the Minister going to have a standing arrangement for emergencies in order to allow proper processing of such notices.
AD SECTION 5
- Section 5 of the Bill makes provision for public hearings where the rights of the public are adversely affected. ‘Public’ in this section means the public generally or any group or class of the public. Participants in organised crime syndicate may be described as a group or class of the public.
- If circumstances justify it, an administrator may depart from the requirements of this section. The arguments used above under section 4 discussions are still valid under this section. It is not clear what is going to be the criterion for justification for deviation from the application of the provisions of sub section (2) to (5).
AD SECTION 11-REGULATIONS
- The Minister is empowered by this section to exercise discretion to issue regulations on a number of issues. Amongst these is:
- ‘procedures to be followed by designated administrators or in relation to classes of administrative action in order to promote the right to procedural fairness;
- rules to regulate the procedure to be followed in connection with public inquiries.
- These regulations have to be submitted to Parliament before published in the Gazette.
- What is clear about this section is that the regulations made by the Minister will get the approval of Parliament. At what stage is the Minister going to seek consultation with the affected administrators.
- In my opinion, the Minister’s power to issue regulations and to exempt, administrators under exceptional circumstances may be viewed as an administrative function, which may be subject to legal challenge by those affected. Whereas if these exemptions are part of the Act / Bill they will be owned by the legislature such that if there is a constitutional challenge it can be addressed before the Act comes into operation.
- It is recommended that an exemption of the security services as provided for in the Open Democracy Bill should be introduced in the Bill. This express exemption passed by the legislature will deal with uncertainties, which will arise from time to time when there is a controversial administrative action taken by the security services. This is in view of the lack of clarity for the basis of the discretion by the Minister, and what will be contained in the regulations.
- The security services operate under the guidance of the need- to- know principle which dictates that persons including fellow employees can only have access to that which is necessary for the performance of their duties. Where the rights are adversely affected or are going to be adversely affected, security considerations may limit the rights of those affected or likely to be affected.
- It is common cause that too much secrecy leads to abuse of power, but for purposes of national security too much openness undermines the security of the state. There has to be a balance between secrecy and transparency. This will harmonize the rights of persons with the duty of the state to maintain law and order.
- The vague exceptions and exemptions provided for in sections 4 and 5 should be deleted and be replaced with a section or chapter on exemptions on certain categories of information as is in section 36 of the Open Democracy Bill.