Kishali Pinto- Jayawardene
Amidst furore over the long delayed arrest of Sri Lanka’s former Health (and currently Environment) Minister implicated with his senior officials in the scandalous procurement of substandard human immunoglobulin, the certification of the Online Safety Act, No 9 of 2024 by the Speaker this Thursday plunges the country into new and dangerously untried depths of state repression.
Charades of state autocracy
Along with decades-old fragmentation of communities by politically driven communalism coupled with unbridled corruption resulting in bankruptcy and the decimation of once excellent public education and public health systems, is this all that marks independence of Sri Lanka from colonial rule?
If so, we might as well wear sackcloth and ashes. Meanwhile an unbelievably tone deaf Government has requested citizens to hoist the national flag in their homes to ‘mark the event’ of our 76th Independence Day (4th February 2024).
If they had a scintilla of political sense, President Ranil Wickremesinghe and his motley Ministers should have eschewed vainglorious ‘celebrations’ that only speak to the degradation of the political Centre.
Instead, that money should have been directed towards uplifting the lives of the poor facing unprecedented deprivation in the wake of Sri Lanka’s bankruptcy. That may have won ‘hearts and minds’ of bitter and angry citizens.
Instead, multiple charades of state autocracy masquerade as ‘leading the country out of the abyss.’ One such charade is the deplorably mistitled ‘Yukthiya’ (Justice) operation which, despite multiple violations of the law, has been justified as against Sri Lanka’s drugs underworld by a Public Security Minister and an Acting Inspector General of Police (IGP) whose credentials are less than spotless.
Courts as the domain of democratic protest
A far more devious attempt is the Online Safety Act which uses the law itself to elevate state control over thought and expression. Put bluntly, this newest statute pulls back the Supreme Court’s own jurisprudential expansion of Article 14 (1)(a) (freedom of expression) and Article 12 (1) (equality before the law) under the 1978 Constitution. Not only problematic content but also the manner of its enactment raises grave questions as to constitutional checks and balances.
We have questioned time and time again as to why the Bill had to be pushed through in such an indecent hurry. The reason has now become crystal clear. The answer thereto lies in the rush of the Government, not to enable a fair and proportionate response to the vexed and legitimate concern of online safety particularly where vulnerable targets such as children are concerned but to pass a ‘hatchet law’ deliberately targeted to add an overbroad layer of repression.
Henceforth, the struggle to retain the remnants of Sri Lanka’s ‘democatic’ space will not only be in the streets but also in courts of law. The Online Safety Act brings into force vague and indeterminate definitions of ‘prohibited behavior.’
A President-appointed Online Safety Commission adds to these fears. An amendment proposed by the Attorney General before Court gives the President the extraordinary power to ‘suspend’ a member from office prior to the commencement or during a hearing relating to his/her removal.
A troubling precedent
Despite assurances made by the State to the Court, this body cannot be conceived of as an independent regulatory authority. In fact, meticulous scrutiny of the provisions of the Act indicates that allegations of non-incorporation of certain amendments detailed in the Determination of the Supreme Court (SC (SD) No 66-120/2023) are far from frivolous. Indeed, a question arises as to the role of the Attorney General in giving the go-ahead to certification of the Bill.
This question goes beyond the passing of one law. Rather, the precedent so set strikes at the very heart of the constitutional order and challenges the system of checks and balances between the judiciary and the legislature. Much of these concerns lie in the definitions of offences where cautionary revisions prescribed by the Court to the Bill seem not to be reflected in the Act. Needless to say, these are precisely the points at which legal terms must be clear and definitive.
And even if a court of law finally pronounces on these ‘offences,’ that is no safeguard as optimists must be reminded. When legal definitions are highly arbitrary, serious problems arise for judges in determining if an ‘offence’ has been committed.
Broadly speaking, the Act states that, any person, whether in or outside Sri Lanka, who poses a threat to national security, public health or public order or (and this is the rub) ‘promotes feelings of ill-will and hostility between different classes of people’ by communicating a ‘false statement’ commits an offence.
Bringing back criminal defamation?
A ‘false statement’ is defined to mean a statement ‘known or believed’ to be incorrect or untrue and made with intent to deceive or mislead. To be clear, this does not include a caution, an opinion or imputation made in ‘good faith.’ What is ‘good faith’ in the opinion of a less than independent Commission is of course, anybody’s guess.
The punishment therein following a conviction ranges from imprisonment up to five years or fine not exceeding five hundred thousand rupees or both. Succeeding sections proceed to define other ‘online’ acts which attract similar punishments.
‘Maliciously or wantonly’ giving provocation by ‘false statement’ to cause a riot, disturbing a religious assembly by a false statement or ‘outraging religious feelings’ are all defined as offences.
Circulating a ‘false statement’ with intent to cause mutiny or ‘fear or alarm’ to the public or disturbs ‘public tranquility’ are similarly criminalised. Where Section 13 referencing the offence of ‘communication of false statement amounting to contempt’ is concerned, it appears that the amendments specified by the Court have not been properly reflected.
The offence of ‘online cheating’ is perhaps one of the Act’s most egregiously framed offences. Section 17(b) makes it an offence to communicate a ‘false’ statement online and thereby ‘deceive’ a person to ‘do any act’ or ‘omit doing any act’ if that is likely to cause harm to that person in body, mind, reputation or property. The crafty inclusion of ‘reputation’ in this regard is disturbing.
Read together with the prohibition of disturbing ‘public tranquility’ (Clause 21, now Section 19), the pincer-grip of a dual ‘chilling effect’ is as frightening as the spectre of criminal defamation.
Dire need for judicial review of enacted law
Moreover, the Court had recommended deletion of the inclusion of ‘damage’ in the relevant clause to ‘avoid ambiguity with civil actions’ (see at page 61 of the SC Determination). Accordingly, Section 17 (b) has omitted the term ‘damage’ as a consequence where individuals are targeted.
But that term is retained where the Government is concerned. Thus, an offence will be committed if the communication of a ‘false statement’ is likely to cause ‘damage or loss’ to the Government. This is a classic albeit conscienceless legal sleight of hand if there ever was one.
One, in fact, goes squint-eyed in puzzlement when going through the Act with a fine-tooth comb in tandem with the Court’s Determination. Other queries arise which cannot all be dealt with in the spaces of this column. This parody of law-making has dire impact given that the Court cannot review enacted laws for constitutionality unlike neighbouring countries as was editorially commented in this newspaper last week.
Suffice to say that with this law, President Wickremesinghe’s much flaunted avatar of progressive leadership in media law reform comes to grief. Certainly this is a pity, as much for him as for Sri Lanka itself.