Supreme Court concludes hearing the Petitioners against the Online Safety Bill

Staff Writer

The Speaker of Parliament confirmed on Wednesday (18) that 45 petitions had been filed in the Supreme Court (SC) of Sri Lanka challenging the constitutionality of the proposed draconian piece of law titled, Online Safety Bill (OSB). 

On the same day at 12.30 in the afternoon, the Supreme Court took up all the cases for hearing before a Bench, which was constituted by Priyantha Jayawardena PC J, Shiran Gooneratne J and Achala Wengappuli J. the same day at 12.30 in the afternoon, the Supreme Court took up all the cases for hearing. Hearing commenced with the Additional Solicitor General (ASG) presenting the government’s proposals for committee stage amendments, which devoured court time for close to three hours. Number of changes were proposed, but none of them appeared to change the basic spirit of the Bill. There were about 35 counsel to make submissions on behalf of the Petitioners which commenced around 4 in the afternoon, and court concluded hearing at 8.10PM for the day, to be resumed next morning. Thursday, the court session started at 9.30 in the morning, and concluded in the evening at 9.40PM. 

Number of counsel made submissions showing the unconstitutionality of the separate clauses of the Bill. Judicial pronouncements from various jurisdictions, especially from the US, were presented to show the recognition of freedom of expression, the right of the people to lie, the ‘reasonable’ limitations that could be placed on it, the nature of the offences, proportionality of the offence and punishment, the executive and the independence of the Online Safety Commission etc, that the online space has its own self-regulation mechanism, and that the State should not regulate that democratic space. Almost all Petitioners argued that the Bill contained unconstitutional clauses and should be passed only with a special majority in the Parliament and approved by the people at a referendum. 

Thursday evening, the ASG, on behalf of the Attorney-General, made counter submissions justifying various clauses of the Bill in its entirety, with the proposed amendments. About ten counsel making submissions thereafter countered these arguments presented by the government. 

Counsel Sanjaya Wilson (our editor) who appeared for two Petitioners namely, Shantha Wijesooriya, a senior journalist, and Awantha Artigala, the popular cartoonist, made submissions challenging the entirety of the Bill, and emphasised its anti-democratic nature, so lacking its democratic quality to be even approved by the People at a referendum. He stated, 

“The Petitioners have come before Your Lordship’s Court with a sense of horror, being exhausted, shocked.  If this Bill becomes law, from the very next day, our cartoonist, like many other critical minded people, will not draw cartoons of the same spirit. They will be forced to self-censor themselves.” 

Petitioners were required to tender their written submissions in support of the arguments by Friday (20) noon. On behalf of Jayasorriya and Artigala, written submissions were duly tendered. We quote from the submissions below:

“[T]he totality of the provisions of the said Bill is anti-democratic, illegitimate, illegal and sweeping, overboard, draconian, disastrous, and unconstitutional and seek to effect a deadly mutation of the democratic framework and the political structure of the Sri Lankan people’s sovereign State of a democratic republic.

“[T]he Bill 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:

• 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;

• The entirety of the Bill is based on, founded upon the fundamental misconceived conception of “criminalizing falsity” (criminalizing  of false statement),  which, even under the First Amendment rights of the Constitution of the United States, as decided by number of judicial pronouncements, have been 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.

On the above grounds alone, your Lordship’s Court is empowered 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.”

The Court “could dispense with the issue of constitutionality of the Bill based solely on the fundamental philosophy of the Bill, which is ‘criminalizing making and /or online communicating false statement’,  and  once the same is decided upon your Lordship’s Court may dispense with the rest of the provisions of the Bill that lay down the oversight, regulatory and enforcement procedural mechanism as prima facie unconstitutional, as once the former is decided upon, the latter issues just fall apart.”

“[T]he totality of the Bill, proposed by one of the most discredited government in history of the country, is for the purpose of the establishment of a body called Online Safety Commission (Commission), controlled by the Executive, to determine and declare what is ‘truth’ and what is ‘false’, and to establish the prosecutorial mechanism to punish any person who express a view which the Commission would declare as “false” and  is contrary to what is declared as ‘truth” by the said Commission.  Along with the other articles Clauses 11 (g), 56 (Particularly the Definitions of ‘false statement’,  ‘prohibited statement’), 26(5), 26(6) confirm this fact. This Commission will be in charge of determining and declaring all truths: scientific, sociological, political, economic, philosophic, religious, artistic, anything under the sun!

“This is exactly the real manifestation today of the government’s “Ministry of Truth” as told by Gorge Orwell in his well known dystopian fiction, “Nineteen Eighty Four”, whose function is to mislead people, propagate falsehood and witch-hunt those activists, critical thinkers, writers, journalists, artists and political opponents who fight for the truth.

“According to European Parliamentary Research Service, “One of the techniques used to harass and silence journalists, human rights defenders, activists and other society watchdogs are strategic lawsuits against public participation (SLAPPs), i.e. groundless or abusive lawsuits, disguised as defamation actions or alleged constitutional and/or civil rights violations, that are initiated against journalists or activists because they exercise their political rights and/or their freedom of expression and information regarding matters of public interest or social significance. They are usually not filed with the intention of pursuing justice but of intimidating, silencing, and draining the financial and psychological resources of SLAPP targets. SLAPPs are often characterised by a great imbalance of power between the claimant and the defendant, where one has the resources and ability to effectively silence the other through litigation techniques that amplify the psychological and economic burden of protracted proceedings”.

“Even the recent experience of the criminal administration of Sri Lanka (Eg. Shakthika Sathkumara, Ahnaf Jazeem, Ramzi Razeek, Natasha Edirisooriya Malaka Devapriya, Hejaz Hizbullah) prove that this Bill, if passed by the Parliament with or without the approval of the People at a referendum, will be used extensively against political opponents, activists and journalists as another tool of the ruling class’ arsenal of political witch-hunt in SLAPPS.”

“[T]hat Part III of the Bill, i.e. clauses 12 to 25 thereof, create overboard, over-inclusive and offences that 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], 14[1][g], 14A of the Constitution, which therefore, render the Bill anti-democratic and unconstitutional in its entirety.”

“The aforesaid basic principles of the Bill contravenes people’s basic human right to lie, sometimes to be unreasonable, irrational, and the right to anonymity  and privacy.”

“The Bill is contrary to the best constitutional principles of “Right to Democracy”, “Quality Democracy” and “Civic Republicanism” that are part and parcel of a quality democracy. 

“Going by the authorities on the subject such as, John Stuart Mill, Alexander Meiklejohn and Jurgen Habermas, Högström, John in Quality of Democracy: A Comparative Study. [Paper presented at the first IPSA-ECPR Joint Conference: Whatever Happened to North-South?, Sao Paulo16th-19th February 2011], describes that a quality of democracy is assessed by the degree of four factors: Participation, Competition, Equality and Rule of Law. 

“Benjamin Isakhan and Steven Slaughter in Democracy and Crisis: Democratising Governance in the Twenty- First Century (2014, Palgrave Macmillan) extensively describe the idea of civic republicanism and its two basic components: participatory democracy and deliberative democracy which should be simultaneously existing in any quality democracy as an integral part of enriching the conditions of a participatory democracy.”

“Participatory democracy is a form of democracy in which citizens actively participate in the decision-making process of their government. It is based on the principle that all individuals affected by a decision should have the opportunity to influence that decision. This type of democracy emphasizes the importance of citizen engagement, empowerment, and inclusion in political processes. In a participatory democracy, citizens have various avenues through which they can participate in decision-making. These avenues may include public consultations, town hall meetings, referendums, citizen assemblies, and online platforms for feedback and discussion. The goal is to ensure that citizens have a direct say in matters that affect their lives and to foster a sense of ownership and responsibility among the population. One key aspect of participatory democracy is the idea of deliberation.

“Participatory democracy has been implemented in various forms around the world, though quality democracy may have not been ensured. For example, Porto Alegre in Brazil has gained international recognition for its participatory budgeting process, where citizens directly participate in deciding how public funds are allocated. In Iceland, the creation of a new constitution involved extensive citizen participation through online platforms and public consultations. These are just a few examples of how participatory democracy can be put into practice. Social media is an essential and integral part of this democratic platform, space for public participation in policy making and debate.

“[D]eliberative democracy seeks to enhance the quality of democratic decision-making by promoting open and inclusive dialogue among citizens. It recognizes that individuals have diverse perspectives, values, and interests, and aims to create spaces where these differences can be acknowledged and reconciled through rational argumentation.

One of the key features of deliberative democracy is the notion of public deliberation. This involves creating spaces for citizens to come together and engage in reasoned discussions about matters of public concern. These spaces can take various forms, such as town hall meetings, citizen assemblies, or online platforms. The goal is to foster an environment where individuals can exchange ideas, challenge assumptions, and critically evaluate different perspectives.”

“Article 19(2) of the ICCPR stipulates that the right to freedom of expression applies regardless of frontiers and through any media of one’s choice. General Comment No. 34 further explains that article 19(2) includes internet-based modes of communication. In a 2016 resolution, the UN Human Rights Council (UNHRC) affirmed that:

‘[T]he same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.’

“The Declaration of Principles on Freedom of Expression and Access to Information in Africa adopted in 2019 by the ACHPR recognises the role of new digital technologies in the realisation of the rights to freedom of expression and access to information, and also affirms that the same rights that people have offline should be protected online in accordance with international human rights law and standards.”

“[T]he Bill regulating and blocking online democracy is misconceived and is nothing but restricting deliberative democracy of the society as a whole, retrogressively driving the civilization back in time. The Bill is fundamentally flawed and therefore should not be permitted to pass through.”

The court is supposed to communicate its determination to the President and to the Speaker within three weeks from the date of the last Petition. Initially it was debated whether the three weeks would run from October 4, when the first Petition was filed or from the date of the last Petition. Hopefully, the Court may address this legal issue.