Popular cartoonist Awantha Artigala and journalist activist Shantha Wijesooriya petition against the Online Safety Bill
By Staff Writer
Renowned Cartoonist Awantha Artigala and senior journalist Shantha Wijesooriya today (12) filed a case (SD No. 91/2023) in the Supreme Court of Sri Lanka challenging the “Online Safety Bill“, one of the draconian law proposals of the President Ranil Wickremasinghe’s government.
Since October 03, when the Bill was placed in the Order paper of the Parliament, a number of citizens and organizations have filed petitions in the Supreme Court of Sri Lanka against the Bill. Citizens who wish to challenge the constitutionality of a proposed Bill could challenge it within two weeks from the placement of the same on the order paper.
The First Petitioner, Wijesooriya, is the Editor of the news website, www.lankaskynews.com and has been in the profession of journalism as a writer, editor and photo-journalist for over 25 years. He is also the Secretary of the Colombo Action Committee for People’s Struggles (CACPS).
Artigala is the second Petitioner, who is the Editorial Cartoonist for the DailyMirror newspaper since 2006, and is working at ADA and Sunday Lankadeepa newspapers as a journalist. He is also the winner of several Journalism Awards for Excellence.
The Petitioners state in the Petition that they have preferred this application “in order to challenge the totality of the aforementioned Bill with its anti-democratic, illegitimate, illegal and sweeping, overboard, draconian, disastrous, and unconstitutional provisions”, which they say has “sought to effect a deadly mutation of the democratic framework and the political structure of the Sri Lankan people’s sovereign State of a democratic socialist republic.”
The Petition addresses the core of the issues, challenging the very totality of the Bill. It starts as follows:
“At the very inception, the Petitioners make the following preliminary objections to the totality of the said impugned Bill, which the Petitioners state could not be placed, at all, before the Parliament for consideration and approval, and before the people for approval by the people at a Referendum, because:
- (a).Being a forcefully instituted caretaker government whose Members of Parliament in total were/are rejected by historic mass struggles of the citizens of this country, the cabinet and the government has no legitimate mandate, at all, to propose such laws as would effect overhaul, drastic transformations/changes to the existing socio-political fabric which the citizens of this country are entitled to and supposed to enjoy freely and democratically;
- (b).The entirety of the Bill is based on, founded upon the fundamental misconceived conception of “criminalizing falsity” (criminalizing false statement), which, even under the First Amendment rights of the Constitution of the United States, series of judicial pronouncements have identified as unwarranted and illegal, and therefore lacks its quality as a law required for the advancement of a progressive and democratic society, and therefore should not stand the test of approval of legislators, nor of the people at a referendum;“
“Therefore, Your Lordship’s Court be pleased to declare that the Bill, in the manner it is proposed and in its entire content, is anti-democratic, infringes the foundational democratic fabric of the Sri Lankan society, and therefore unconstitutional, and lacks fundamental qualities required of a law for the same to be placed for approval by legislators even with a two third majority and by the people at a referendum.”
“[T]he Bill in its totality, entirety, by way of introducing several unprecedented offences and a politicized mechanism of enforcement of the provisions therein, is intended to witch-hunt political opponents, stifle dissent and suppress views critical of the ruling class and the government, obliterate the democratic space of social media and online platforms, and therefore infringes upon the constitutional safeguard to the right to freedom of speech and expression, including publication, guaranteed under Article 14[1][a] of the Constitution, and upon other fundamental rights including right to equality under Article 12 of the Constitution”, Petitioners state.
In respect of the Commission that is proposed to institute by the law, the Petitioners allege that it is unconstitutional, as it is established even without the recommendation of the Constitutional Council. The President can remove commissioners at his will.
The Petitioners also state that the power of the Commission (as set out in Clause 11 of the bill) are vague, arbitrary, capricious, unreasonable and violative of Articles 3, 4[d], 10, 11, 12[1] and 14[1][a] of the Constitution. “It has the abhorrent power, inter-alia, to decide and propagate what a ‘prohibited statement’ or ‘false statement’ is and issue directions, with penal consequences if not complied with. These provisions thus establish an Orwellian “Ministry of Truth”, the symbol of a despotic, authoritarian rule.”
“Commission has been granted extensive powers under Clauses 11 (b), (c), (d), ( e), (f), and (g), based on misconceived concepts of “Prohibited Statements” and “falsity of a statement”, which powers are anti-democratic, violate constitutional rights and therefore unconstitutional. The Commission’s powers also amount to the usurpation of judicial powers and violate Article 3 and 4 of the Constitution.”
In dealing with the offences being introduced, the Petition state that they are overboard, over-inclusive and vague and are based on the aforesaid ‘legal fallacy of criminalizing “false” statements, and therefore inconsistent with and violate Articles 3, 4[d], 10, 12[1], 12[2], 13, 14, 14[1][a] and 14[1][g] of the Constitution, which therefore, render the Bill anti-democratic and unconstitutional in its entirety.’
Interestingly, the Petitioners plead from the Court the following:
- Determine and declare that the entirety of the Bill titled “Online Safety Bill”, in the manner it is proposed and in its entire content, is anti-democratic, infringes the foundational democratic fabric of the Sri Lankan society, and therefore unconstitutional, and lacks fundamental qualities required of a law for the same to be placed for approval by legislators even with a two third majority and by the people at a referendum;
- Determine and declare that the Bill titled “Online Safety Bill” is violative of and/or inconsistent with the provisions of the Constitution, including Articles 3, 4, 10 12(1), 12(2), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14(1)(f) and 14(1)(g), and any one or more of the entrenched provisions as contained in Article 83 of the Constitution.
Under the Sri Lankan constitution, even unconstitutional laws could be made law when the same is passed by a special majority of the Parliament with or without the approval by the People at a Referendum as required by Articles 83 and 84(2) of the Constitution.
The Petitioners here, uniquely, have specifically rejected this anti-democratic legal procedure and have refused to plead to enforce the said Articles 83 and 84(2) of the Constitution.
Petition has bee filed by Chathuri Samarasinghe, Attorney-at-Law, and has been settled by Sanjaya Wilson Jayasekera with Ershan Ariaratnam and Kaushalya Sendanayaka Arachchi, Attorneys-at-Law.
[Featured image contains a recent cartoon by Artigala]
