intelligence in a constitutional democracy final report to the ... - Mg

Chapter 2: Key Principles and Perspectives on Security and Intelligence
The main functions of intelligence services are to predict, detect and analyse
internal and external threats to security and to inform and advise the
Executive about the nature and causes of these threats. The services are
thereby expected to contribute to preventing, containing and overcoming
serious threats to the country and its people.
In order to fulfil their vital functions, intelligence services throughout the world
are able to operate secretly and have special powers to acquire confidential
information through surveillance, infiltration of organisations, interception of
communication and other methods that infringe the rights to privacy and
dignity.
Politicians and intelligence officers can abuse these powers to infringe rights
without good cause, interfere in lawful politics and favour or prejudice a
political party or leader, thereby subverting democracy. They can intimidate
the government’s opponents, create a climate of fear and manipulate
intelligence in order to influence state decision-making and public opinion.
Given these dangers, democratic societies are confronted by the challenge of
constructing rules, controls and other safeguards that prevent misconduct by
the intelligence services without restricting the services to such an extent that
they are unable to fulfil their duties. In short, the challenge is to ensure that
the intelligence agencies pursue a legitimate mandate in a legitimate manner.
This challenge lies at the heart of our terms of reference. We have addressed
the challenge and conducted the review through the lens of the Constitution.
The Constitution is our legal and ethical framework because it is the supreme
law and lays “the foundation for a democratic and open society in which
government is based on the will of the people and every citizen is equally
protected by law”.
Notwithstanding their grave responsibilities and the perils they might have to
face, the intelligence agencies and other security services are at all times and
in all respects bound by the Constitution. The Constitution states that the
security services must act, and must teach and require their members to act,
in accordance with the Constitution and the law; that national security must be
pursued in compliance with the law, including international law; and that no
member of any security service may obey a manifestly illegal order.
The Bill of Rights enshrines the rights of all people in our country and affirms
the democratic values of human dignity, equality and freedom. It binds the
legislature, the Executive, the judiciary and organs of state. The intelligence
services are obliged to respect constitutional rights and may not infringe these
rights other than as permitted by the Constitution and legislation.
The Constitution insists that the security services may not prejudice a political
party interest that is legitimate in terms of the Constitution or further, in a
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