It is also clear that the protection given, under the Constitution, to freedom from
interference with correspondence is not an absolute right but may be restricted, as
with freedom of expression, in certain circumscribed circumstances:-
(a) the interference with the right must be in accordance with a law;
(b) it must be, inter alia, in the interest of defence, public safety, public order, the economic interests of the State,
public morality or public health;
(c) the interference must be reasonably justifiable in a democratic society.
The impugned sections 98(2) and 103 of the Act confers on the President unfettered powers to intercept
correspondence and communications. The only limitation to the exercise of that power is that the President has to
hold the
opinion
that it is necessary in the interests of national security or necessary for the maintenance of law
and order. It is not a legal requirement that the holding of the opinion be based on reasonable grounds or good cause.
In terms of s 103 of the Act the only restriction on the President before he gives certain directives is that he should
consult the Minister, an appointee of the President, who is accountable to him.
Sections 98(2) and 103 of the Act have no built-in mechanism restricting or limiting:-
(a) who the President may authorise to make the interception;
(b) what is to become of the mail or other communication once it has been intercepted;
(c) who has access to the contents in the intercepted communication;
(d) what steps are to be taken to ensure that any lawyer-client privilege is not unduly interfered with.
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