Tamil National Alliance Opposition Parliamentarian, President’s Counsel (PC) M.A. Sumanthiran has filed a Fundamental Rights (FR) petition in the Supreme Court (SC) against Speaker of the Parliament Mahinda Yapa Abeywardana and Attorney General (AG) Sanjay Rajaratnam PC, respectively, over the Speaker’s purported certification of the Online Safety Bill (OSB) and the AG’s alleged wrongful and negligent advice to the Speaker and the Parliament regarding the same.

The petitioner notes that the SC has determined that several clauses of the said Bill were inconsistent and would require a two thirds majority vote of the entire Parliament to be enacted, while if the specified amendments (proposed by the State to be moved at the Committee Stage of the Bill in the Parliament) were incorporated into the Bill, the Bill could be passed with a simple majority.

Although the Government published a document on the intended Committee Stage amendments to the Bill at the commencement of the debate, all the amendments suggested by the SC to ensure compliance with the Constitution had not been included. The Speaker had however stated that the Committee Stage amendments had been approved by the AG and the Legal Draftsperson as being compliant with the SC determination and had permitted the Government to proceed sans heed to Opposition concerns on the same.

When the petitioner had raised the issue of non-compliance with the SC determination, the Additional Solicitor General present in the Parliament’s Public Officers’ Box had informed that all the SC amendments would be incorporated.

Again however, during the third reading, despite requests for a division, the Speaker had proceeded to declare the Bill as passed without taking a vote when two thirds of the whole Parliament (special majority) was not present in the Parliament, and even when such (supra majority) is a requisite when moving ahead in the absence of complying with the SC amendments.

“Therefore, in order for the Speaker to have certified the Online Safety Act (OSA) as having been enacted into law, either the amendments determined to be required by the SC should have been incorporated and the Bill approved by a simple majority vote or in the absence of such amendments being incorporated, the Bill should have been approved by the two thirds special majority vote of the entire number of MPs.” The petitioner further noted that the Speaker’s purported certification took place when the Parliament remained prorogued.

Therefore, the petitioner observes that the purported certification is invalid in law as the Bill has not been passed into law in terms of the Constitution. The purported certification by the Speaker is hence illegal, ultra vires and in violation of the FR (Article 12[1] of the Constitution on equality and equal protection of the law) and public trust.

Moreover, the petitioner points out that the AG, by failing to diligently advise the Parliament that the Committee Stage amendments proposed at the Third Reading would not cause the inconsistencies with the constitutional; provisions to cease and that therefore the Bill would require a two thirds special majority vote to be enacted, is guilty of failing to properly carry out the responsibilities and has also violated public trust.

Hence, the petitioner has prayed for an interim order to be issued suspending the operation of the purported OSA, No. 9 of 2024, and declare that the purported certification of the said Act is ultra vires the Constitution and a nullity in law, and of no force or effect in law.

Courtesy:The Morning