Kishali Pinto – Jayawardene
The Supreme Court’s pronouncement while examining Sri Lanka’s Online Safety Bill in the determination communicated to the Speaker earlier this month that, ‘Parliament need not wait till a crime is committed to enact laws’ invites a measure of critical scrutiny in good conscience.
What or who does the Bill protect?
It is self-evident that the legislature need not ‘wait’ till crimes are committed to enact laws. Nor has any legislature, including this country’s rambunctious House, exercised such extraordinary patience. But the point in issue is a different one altogether. In short, this is whether, as petitioners contended in challenging the Bill, a real and not fanciful fear existed that certain clauses of the Bill may, by virtue of their overbroad nature, lead to (unconstitutional) restrictions of basic liberties.
The Court engaged in a descriptive account of the rise of online sexual abuse of children and adults, the need for regulation of the internet, oneline financial scams and ‘interference with the administration of justice particularly when important matters of public discourse are taken up for hearing.’ In those circumstances, it was remarked that the State has a responsibility to enact legislation to prevent such crimes.
These sentiments may be laudable. The judicial litany of rising online abuse may also be conceded without much quarrel. In principle, there is no doubt that sensible and fair regulation is needed. The question remains however as to whether the Government’s Online Safety Bill is a fit and proper legislative vehicle for the purpose? That is so even with the profoundly astonishing number of amendments proposed by the Attorney General (thirty in number) before Court.
Equality under law?
That clearly goes to show that the proper process of pre-enactment constitutional review had not been adhered to by the Ministry concerned. But to return to the core issue, the Court stressed that such legislation was needed“… to ‘secure the equal protection of the law enshrined in Article 12(1) of the Constitution.’ In that regard, the Bench opined that judicial cautions expressed close to three decades earlier in Athukorala and Others the Attorney General (the Broadcasting Authority Bill Determination, 05/05/1997) was not ‘applicable’ to its consideration of whether the Online Safety Bill passed the constitutional test.
Even so, the question in issue is whether these laws are brought to enforce ‘equal protection’ of citizens? On the face of it, a sadly different reality confronts us. Let alone vague and overbroad clauses, even perfectly properly phrased statutory provisions such as Section 3 (1) of the International Covenant on Civil and Political Rights (ICCPR) Act have been used to totally contrary effect.
That vexed Section has been used against activists, poets and dissenters, maliciously and with mala fide intent. They have been locked up for months on end on inadequate legal grounds to be freed later but with no redress for reputations lost, professions destroyed and families hounded. This is what is meant by the ‘chilling effect.’
Our history of abuse of laws
Law enforcement officers persist in ignoring that part of the offence which mandates that there should be ‘incitement’ to discrimination, hostility or violence even overriding judicial warnings in that regard. Meanwhile and merrily free of all such prohibitions, monks engage in gross communal disparagement of minorities which, in fact and in law, constitute ‘incitement’ within the meaning of Section 3 (1) of the ICCPR Act.
Yet these worthies who disgrace the very robes that they wear, escape scot free. So the issue here is the danger of (particularly overbroad) laws being used not for the purposes for which they are intended. This is not an abstract concern, let us be clear. Patent violation of statutory provisions by officers and bodies entrusted with powers in that regard makes that very plain.
In the Athukorala Case, relied on by those challenging the Online Safety Bill, the Supreme Court was painfully cognisant of that danger.
The judges held, inter alia that, proposed content restrictions were too broad, general and imprecise to fit within the scope of the restrictions on freedom of expression allowed by the Constitution. It was warned that ‘governmental regulation that may be accepted as tolerable must be drawn with narrow specificity.’
The Attorney General’s amendments
In effect, this meant that ‘every situation cannot be anticipated and provided for; but the law must set reasonably clear general guidelines for ministers, officials, law enforcement officials and triers of fact, including judges, to prevent arbitrary action.’ Where the Online Safety Bill is concerned, the Attorney General’s amendments presented to Court, redressed some of its more obnoxious clauses.
Exceedingly wide discretion had earlier been given to the President to appoint his chosen favourites to the Online Safety Commission without any bar whatsoever. This has now been revised to give the barest of nods to constitutional propriety. Presidential appointments of the Commissioners from particular fields of expertise must be subject to ‘approval’ of the Constitutional Council (CC).
There is however, a rather piquantly interesting rider. Appointments to oversight bodies conform to a constitutionally prescribed pattern of recommendations coming from the CC to the President consequent to which, the act of Presidential appointments follow (Article 41B).
The other way around (ie; where the President nominates and the CC ‘approves’ is confined to particular high Offices (Article 41C).
Public confidence in oversight bodies
This is where the exercise of Presidential discretion is subject to considerations of, inter alia, seniority. Why had Article 41C (rather than Article 41B) procedure been chosen?
This was held by the Court to be a ‘policy’ decision. Even so, the reason underlying this choice requires little guesses. Presidential discretion in choosing members remains exceedingly wide when Article 41C procedure is applied to Commission appointments.
Despite the Court’s confidence that prescribing ‘qualifications and experience’ in relevant fields will limit Presidential discretion, significant concerns remain.
The amendments stipulate moreover that, if approval is not given by the CC, the President will be required to make a fresh nomination. Further, if the appointments as approved by the CC are not made within fourteen days, the approved nominations will be ‘deemed’ to be appointed.
Removal of the members is also subjected to a similar ‘approval’ of the CC.
In other respects, the objectives of the Bill (Clause 3) has been amended to prune earlier imprecise words. Further, the abusive ‘overreach’ of the Commission’s authority has been mitigated by superimposing judicial oversight over enforcement of its ‘notices.’ Apart from these amendments, the Court prescribed several other revisions.
Will the Commission be a ‘Government creature’?
The judges took the view that punishments for repeat offenders was excessive. Additionally, the Commission’s power to issue ‘directives’ to a wide range of persons was accepted to be in excess of lawful authority. Other ambiguous phrases such as ‘wounding the religious feelings of any other person’ and ‘maliciously’ or ‘wantonly’ causing the offence of rioting, was also ruled to be inconsistent with the right to freedom of expression.
A more extensive discussion is prevented by constraints of space. The Bench’s observation that the Bill merely proposed to extend existing ‘offline’ offences to ‘online’ offences, brings an interesting conundrum into play. Existing ‘offline’ offences are prosecuted within well established statutory regimes.
But that is not true here. Like it or not and despite the cosmetic superimposing of the ‘approval’ of the CC, the proposed Online Safety Commission promises to be, barring a proverbial miracle, a ‘creature’ of the political regime.
That is where the clear and present danger of this Bill lies.