Chairperson, on 25 April this year, when we debated this Bill following the National Council of Provinces' welcome amendments, I, on behalf of the ACDP, said that we believe that the all important clause 45 relating to the purported offence of improper classification does not disclose an offence, as currently formulated, and I suggested that the words "is guilty of an offence" should be inserted into clause 45 after the word "process".
I indicated that the ACDP would be petitioning the President on this and other issues. The hon Dene Smuts and I then drafted a petition, including these concerns as well as tagging concerns, and the incorrect reference number in clause 42. As you know, President Zuma referred the Bill back to Parliament on these very two issues that we raised with him.
The effect of the amendment to clause 45 is that journalists and whistleblowers who possess or disclose improperly classified information, where such possession or disclosure shows criminal activity, including improperly classified documents to hide corrupt activities, will no longer be guilty of an offence. The ACDP, when we proposed the amendment, made certain that it was inserted, and we support this correction as it speaks to the very important improper classification that hon Dene Smuts and I had requested.
We were concerned, and many people in the public are concerned, that the Bill will be used to hide corrupt activities. Without this amendment, it would have gone to the heart of the Bill and that is the reason why we supported this proposal when it came back to the committee.
However, the reason why we as the ACDP abstained from voting is the larger issue of the referral under section 79 of the Constitution. The Constitutional Court made it very clear in the Liquor Bill matter that section 79 clearly envisages that the President's reservations must be specified when he refers the Bill back to Parliament. The court also said that this requirement negatives the notion that the court's function is to determine, once and for all, whether a Bill accords in its entirety with the Constitution.
This makes eminent sense and the President's section 79 referral must be specific. This was the case with previous referrals, where exact arguments were given and the exact clause references were given. However, in this case, it is very clear that it was a vague referral. As Parliament, we cannot act on vague referrals without the risk, as hon Smuts said, of creating a precedent where, when the President does not like a Bill, he refers it back with vague specifications. He has to assent to a Bill, except where he has specific constitutional reservations.
All that we in the committee asked for was clarity from the President as it was unclear. This was refused by the committee, placing us in the ACDP in a dilemma. What we had requested was approved to a certain degree, but our concerns related to the process. Whilst we welcome the amendments, we still believe that the matter should be referred to the Constitutional Court for its final approval. It is for that reason that, regrettably, we are unable to support this Bill today. Thank you. [Applause.]