The National Prosecuting Authority (NPA) denied yesterday that it infringed the constitutional rights of Durban businessman Schabir Shaik by summoning him to answer questions on the arms deal, knowing that he would be charged and the information would be used against him.

The problem facing the Constitutional Court, which is hearing an application by Shaik for leave to appeal a judgment by the Durban High Court, is how to protect a suspect's right to silence without undermining the National Prosecuting Authority Act, which serves a crucial role in the fight against crime and corruption.

The act was drafted because of the difficulty faced by state in bringing criminals to book. Section 28 (6) and (7) of the act holds that the prosecuting authority can summon people to answer questions relating to an investigation, providing the person is not an accused, and has not been detained or arrested, to prevent them from incriminating themselves.

Shaik's counsel argued that greater immunity should be afforded a suspect if there was any prospect the state could use the information to advance its case against that person.

Constitutional Court judges expressed concern about the lack of protection provided by the act for a person who had not yet been charged, with Chief Justice Arthur Chaskalson saying "a suspect was worse off than an accused".

"In fact he may only become a suspect as a result of what is said in interrogation," said Chaskalson.

A person could face a 15-year sentence for refusing to answer questions posed by the authority .

The Durban High Court held that while the act violated a person's constitutional right to silence, it provided sufficient protection by ensuring that evidence given at an inquiry could not be used in criminal proceedings against such a person.

The Constitutional Court was concerned, however, that it could form the basis of charges against someone, and would give the state an advantage in preparing its case.

Adv Marumo Moerane, for the state, admitted that there was nothing to prevent the NPA from delaying a person's arrest until they had been questioned, except for "the assumption in the Act that the national prosecuting authorities' power would be exercised lawfully".

Moerane said it had already beensaid in court papers that there was no intention to charge Shaik when he was summoned for questioning.

"If we had already taken the decision to charge him, and then called him to answer the questions, it would have been improper use of the section," he said.

Justice Kate O' Regan said, while she was aware of the seriousness of the crimes contemplated by the act, she had misgivings about a situation where interrogation of a person by the investigating director took place behind closed doors and without an independent arbiter and that the director rules on objections by the suspect on the line of questioning.

The case was postponed pending a decision on appeal.

With acknowledgement to the Business Day.