Kishali Pinto -Jayawardene
It takes a Government wholly insensible to public opinion to be audacious enough to gazette two Bills grievously impacting on constitutional liberties of citizens literally within a few days apace.
Doom for Sri Lanks’s constitutional governance
Or maybe this was precisely the intent, deadly and clear in its message. First, the so-called Anti-Terrorism Bill is presented purportedly in revised form but with unacceptably overbroad and vague definitions of what constitutes an ‘act of terrorism’ left undisturbed. The second is a grievously mistitled ‘Online Safety Bill’ which should read rather as, the ‘Safety of Government’ Bill.
The third in this abysmal trilogy is the Broadcasting Regulatory Commission bill hurriedly withdrawn by a mumbling Justice Minister after public protests.
These three Bills spell doom for civil governance and democratic space. One important preliminary observation is called for. Overall, the Government seems to have abandoned even paying lip service to the concept of ‘independent oversight’ as these Bills ruthlessly demonstrate.
There is an immediate paradox here. President Ranil Wickremesinghe’s oft heard boast is that he reversed the ravages of the 20th and 18th constitutional amendments effected under the Presidencies of the Rajapaksa brothers by bringing in the 21st constitutional amendment. If so, why is his administration bringing Bill after Bill that does away with independent oversight bodies, substituting ‘the President’s bodies’ instead? Let us take specific examples to establish this point.
Adhering to judicial guidance
The Broadcasting Bill was mercilessly dissected for the reason that, among many other untenable clauses, it proposed to establish a ‘Commission’ lacking the requisite independent elements, to regulate the broadcasting industry. Its membership comprised two ex officio appointments and three ‘outsiders’ who were subject to ‘approval’ by the Constitutional Council. It was manifest that this was insufficient for a regulatory body that the Supreme Court had determined in 1994, should function in the public interest.
Hot on the heels of that fiasco, the Online Safety Bill seeks to estab-lish an Online Safety Commission tasked with monitoring and inquir-ing into those who commit offences of ‘prohibited statements’ and ‘false statements.’
Unapologetically, this particular Commission consists of members ‘appointed by the President.’ These worthies may also be removed from office by the President for ‘reasons assigned.’ What these ‘reasons’ may be is anybody’s guess.
Effectively the Online Safety Commission is conceived as a subservient creature of the executive, its members will hold office at the ‘pleasure’ of the President if we may revert to long discarded language. This is perhaps even more so than the proposed broadcasting regulatory commission. There a member may be removed on specified grounds, inter alia, misbehaviour, physical or mental ill health, unable to discharge functions, other stated grounds of disqualification, upon the President ‘informing’ the Constitutional Council.
Causing ‘alarm’ and ‘distress’
That was bad enough. But the Online Safety Bill regresses even fur-ther. Not even a pretence has been made at bringing in security of tenure, other than providing a fixed term of three years. The purpose of this Bill is stated as protecting ‘persons against damage caused by communication of false statements or threatening, alarming or distressing statements.’
But if ever a sentence was calculated to cause ‘alarm’ and ‘distress’ on the part of those unfortunate enough to be reading it, this atrociously drafted clause would be it.
What exactly is (legally) meant by causing ‘alarm’ or ‘distress,’ pray? Whose ‘alarm’ are we talking of here? A timorous soul’s ‘alarm’ may well be a bolder spirit’s ‘nonchalant shrug when faced with online chatter or social media meanderings.
As much as the quaintly Victorian notion of ‘distress’, (read, a ‘damsel’s distress’), these are not terms that comfortably lend themselves to precise legal meaning in the modern legal world Without this precision, a law can used in whatever manner that its abusers want, as we know all too well.
The Bill states further that its aim is to ensure protection from statements that are in contempt of court or prejudicial to the maintenance of the authority and impartiality of the judiciary.
But is this not the preserve of the judiciary regarding which a law codifying principles of contempt is also currently in the public domain? Is this a function that should be tasked to a Commission of this nature, even if that is limited to ‘referring’ such alleged statements to a court as Clause 11 (e) states?
Laws weaponised to terrorise
The Commission is meanwhile tasked with a host of functions that, I may say with tongue firmly in the cheek, tend to arouse ‘alarm’ and ‘distress’ in the contemplation of any sensible citizen. It is empowered to ‘issue directives’ to persons, service providers or internet in-termediaries whose services have been ‘used’ to communicate any ‘prohibited statement’ including to ‘disable’ that service. The prohibi-tion of statements/false statements has been defined as that which ‘poses a threat to national security or promotes feelings of ill will and hostility between different classes of people.’
This closely follows definitions in the much abused International Covenant on Civil and Political Rights Act (2007) which have been weaponised with might and main against poets, journalists, activists and dissenters who clash with the prevailing political regime. It does not need much imagination to envisage as to how the clauses of the Online Safety Bill will be used if passed into law or as to what uproar this will cause with service providers. Much more needs to be said regarding the contents of this Bill which needs to be left for a future date.
Suffice it to be said that these draft laws have been brought by the Wickremesinghe Cabinet not on a mistaken understanding of their impact but with unambiguous and targeted purpose. Soothing exercises of ‘revision’ and ‘consultation’ are pure shadow boxing attempts.
The aim is to strategically withdraw at a given time and then, to attack again when it is more politically conducive. Ironically, the Bills have emerged at the very time that President Wickremesinghe tours global capitals with Ministers in tow.
An anti-liberties net over Sri Lanka
This is not to forget a callow son tagging along for ‘support’ which the Foreign Affairs Minister found to his cost, is a tad bit difficult to justify in the face of relentless social media mockery. But let us leave aside that little episode of Ministerial buffoonery or the fact that a bankrupt country can ill afford the costs of the President’s entourage. The point is that while President Wickremesinghe talks the sweetly reasonable language of debt equity, climate change and what not to the world, his regime is busy drawing an anti-liberties net over Sri Lankans.
This is scarcely conducive to the Rule of Law without which any debt restructuring process in any country is fated to miserably fail. Sri Lanka’s experience has historically been that (with few exceptions), ‘good’ laws (such as the Convention Against Torture Act, 1994) are deliberately allowed to fail.
However, ‘bad’ laws such as the ICCPR Act are taken forward with extraordinary effort by the State. And the problem with bad laws is that, unlike bad Governments, they cannot be easily removed from our statute books once the hurrahs in Parliament subside.
We may keep that warning in mind as this Government surges ahead with legal experimentation that will drag the country decades back in ‘good governance,’ once the appealing mantra of the Wickremesinghe leadership.