Despite not necessarily having any intention, nor indeed any mandate, to investigate weighty legal affairs, the Hefer commission has just bumped into an unanticipated obstacle in the form of a disputed area of the law.

The question is whether the decisions of the National Intelligence Agency (NIA) are subject to the purview of the judicial branch of government.

In a sense, it is a surprise the issue should even come up at all. The Hefer commission was set up by the executive branch of government to perform a specific service. To perform its function, it has sought the co-operation of another executive branch of government.

The commission does not necessarily seek to judge the actions of anyone in the intelligence agencies, so it is not really acting as a representative of the judicial branch of government in the strict sense.

However, last week, the NIA via its legal representative, George Bizos made an issue of the matter by laying down the law in no uncertain terms.

The position of the NIA is: it requires a set procedure before documents are released; they will be released solely at the discretion of the intelligence agency's director-generals; these decisions cannot be appealed against; and, by the way, just having documents you are not supposed to have could result in a criminal charge.

It is hard to imagine a more uncooperative stance.

Since then the commission has been forced to issue subpoenas to various heads of intelligence agencies to force them to come forward and testify before the commission, despite the fact that such testimony could be heard in secret.

In a sense, the attitude of the NIA is understandable. No intelligence agency would want to disclose what it knows or even what it does not know in any forum, no matter how theoretically secret it is supposed to be.

In addition, in this particular case, the NIA has been reportedly requested to supply "truck loads" of information by former transport minister Mac Maharaj. It is reluctant to comply, and has issued a rare statement reminding the public, including presumably Maharaj himself, that it is illegal to pass on secret documents, even those documents from spies of the previous government.

This puts Maharaj in a bit of an invidious position because he was among the group that made the allegations that form the basis for the commission's inquiry. The commission has been asked to decide whether Scorpions chief Bulelani Ngcuka was an apartheid spy. Maharaj in fact appeared on television holding documents he claimed laid the basis for that allegation.

If Maharaj now places these documents before the commission, as he has been asked to, will he immediately be arrested for disclosing documents subject to the Protection of Information Act?

The NIA's legal position in adopting this stance is also unclear, and the Freedom of Expression Institute, for example, has been quick to criticise its stance. The institute argues "it is clearly in the legitimate interests of all parties concerned, and certainly in the public interest, for relevant documents held by the intelligence services to be made available to the commission".

"Failure by the intelligence services to co-operate fully with the inquiry would frustrate the intentions of the president in appointing the commission and would make a mockery of our constitution's enshrining of freedom of information," the institute stated. Before 1994, the law was clear in the sense that the judicial system largely abdicated any oversight role in the decisions of the intelligence agencies. It had no legal basis to intervene, except in terms of limited oversight granted by administrative law.

However, SA's new constitutional dispensation is in theory predicated on the advent of a constitutional state in which all citizens, institutions and government itself are subject to the grand pronouncements and lofty ideals of the constitution.

The constitution is designed to protect human rights in general and the rights of individuals in relation to the state in particular. And this includes, in general, the right to information the state might hold.

By contrast, Bizos argued before the commission that "the fundamental principle which underpins those provisions (regarding the protection of information) is that matters affecting the security of the state are the responsibility of the executive, and they should not readily become justiciable before courts of law or other tribunals".

Bizos went on to quote Lord Diplock, a British law lord, who stated in a judgment that "national security is the responsibility of the executive government . It is par excellence a nonjusticiable question. Judicial process is totally inept to deal with the sorts of problems which it involves."

Of course, the UK has no constitution, and Bizos acknowledged the constitutional dispensation was different, but went on to say "that does not in itself diminish the significance of the principle articulated in those remarks".

The problem is that even in British law, Diplock's approach has not gone unqueried, even if it is still maybe the prevailing view. Diplock is known as a strong advocate of "state security", best known perhaps for his recommendation that juries be abolished for security trials in Northern Ireland.

British legal students still debate the Liversidge case, in which a man was detained without trial before the Second World War on suspicion that he was a German sympathiser. At issue was whether a legal process was required before the order was given, and whether the minister concerned had to make a subjective or objective decision.

The House of Lords decided it was an executive decision that need only be made subjectively. "Those who are responsible for the national security must be the sole judges of what the national security requires."

The dissenting voice at the time was that of Lord Atkin, who said that even in an emergency the executive could not exercise its power arbitrarily. Atkin deplored judges who "when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive".

Another judge commented later that "from being lions under the throne (the majority judgment has) reduced us to mice squeaking under a chair in the home office".

The difference is that the Hefer commission is not being asked to come to a decision on a question of law to but answer a few simple questions: was Ngcuka a spy, and has he been abusing his office?

It is hard to imagine Hefer being able to reach a decision without the cooperation of the NIA. So the new question is this: just why is the NIA so curiously loath to help?

With acknowledgements to Tim Cohen and the Business Day.