- The constitutionality of the Online Safety Act
A surgeon who performs a surgery is required to follow strict surgical procedures. They stick to the rules to prevent serious harm or death to patients. Similarly, Parliament must follow the rules set out in the Constitution when enacting laws. If Parliament fails to follow the rules, the consequences could be irreversible. Yet, this is what unfolded when the purported Online Safety Act (OSA) was passed.
Bill vs. act
To create laws, Parliament must enact laws and pass them. The law is first presented to Parliament as a bill which is gazetted, tabled, challenged in the Supreme Court if thought to be unconstitutional, debated following the judgement, amended, voted on, passed by Parliament, and certified by the Speaker. Once the bill goes through all these steps and is certified by following all the rules in the Constitution, the bill becomes valid law and is then referred to as an act. The OSA, however, did not strictly follow these procedures.
Challenging a law
The OSA is now a law. Laws can be changed if Parliament amends the existing law through a bill. While some countries have provision, existing laws in Sri Lanka cannot be challenged in court. Only bills can be challenged in court. Any such challenge must be done after the bill has been tabled and before it is passed by Parliament. This requires constant public vigilance of bills tabled in Parliament.
If any provisions of a bill are contrary to the provisions of the Constitution, such bills may be challenged by filing a case in the Supreme Court. The Supreme Court then hears the case and determines if the provisions challenged in the proposed laws are unconstitutional or not. If it is unconstitutional, the bill cannot be passed as it is. If the Supreme Court holds that a special majority is required, the Speaker can certify a law only if the bill has been passed by a special majority.
Therefore:
1. The amendments determined by the Supreme Court should be incorporated
2. In the absence of such amendments the bill should have been passed by a two-thirds special majority
Once the Supreme Court has decided on the constitutionality of a bill, that judgement is sent to the Speaker of Parliament. Parliament must then make the necessary changes and give effect to the Supreme Court’s determination before passing the bill. These amendments can be done at the committee stage. A recent example that demonstrates this process and the loopholes is the passing of the OSA.
The illicit birth of the OSA
When the OSB was tabled in Parliament on 3 October 2023, there was widespread criticism for the bill from activists, journalists, lawyers, and other citizens due to the inconsistencies with several articles of the Constitution.
A staggering 45 petitions were filed in the Supreme Court by journalists, individuals, and several other concerned persons challenging the constitutionality of the bill. These cases were heard continuously for two days, with hearing running late into the night. Then the judgement was forwarded to the Speaker of Parliament and read out by him on 7 November 2023. However, there have been several allegations that Parliament failed to give full effect to the determination of the Supreme Court.
What did the determination say?
Among other observations, the judgement held that several clauses in the OSB were inconsistent with the Constitution. Two options were provided:
1) The bill requires a two-thirds majority vote (150 votes) of Parliament to be passed
2) If certain changes stipulated in the judgement were incorporated into the bill, then the inconsistencies would cease. If so, the bill can be passed with a simple majority vote
What did Parliament do?
23 January: The debate regarding the Online Safety Bill commenced in Parliament and the Government published a document on the intended committee stage amendments to the bill. However, all the amendments suggested by the Supreme Court were not included in this document
24 January: The second reading took place and 108 members of Parliament voted in favour of the bill
Thereafter Parliament sat and committee stage amendments to the bill commenced. During this stage, many MPs brought to the notice of the Speaker that there were several inconsistencies between the Supreme Court determination and the proposed committee stage amendments in Parliament. A member of Parliament is reported to have offered to list them out to Parliament or give them to the relevant minister. Parliament was also warned that failure to incorporate these amendments to the bill would mean it would not become law in terms of the Constitution.
The leader of the opposition too, informed the Speaker that this was a very serious issue, and the inconsistencies should be looked into by Parliament and the Supreme Court determination should be complied with. The Speaker is reported to have responded to this with: “...the Government is not agreeable with that…so what to do?” The Speaker then allowed the Government to proceed with their committee stage amendments without paying any heed to the concerns of the opposition or the judgement of the Supreme Court.
Then, at the third and final reading, the Speaker declared that the bill was passed without a vote. The bill was allegedly passed by a majority vote. Yet, in terms of Parliamentary practice and to ensure compliance with the Constitution, whenever a two-thirds vote is required, a vote must be taken to ascertain the numbers voting in favour. Further, even during the vote that took place after the second reading, there was no two-thirds majority vote.
Parliament was then prorogued with effect from midnight on 26 January and commenced on 7 February. However, while Parliament was prorogued, the Speaker certified the Online Safety Act on 1 February and purportedly enacted it into law.
Legal status of the OSA
It is clear now that the Online Safety Act was not passed into law in terms of the Constitution, nor did it entirely comply with the Supreme Court determination. For a law to be validly passed, it must be created by following the recipe in place to create a new law. Yet, the OSA did not follow this recipe and severely deviated from it. Can this purported certification of the purported OSA be considered as creating valid law?
Events following OSA certification
On 1 February, after the act was passed, a fundamental rights case was filed in the Supreme Court against the acts of the Speaker. However, the Court refused to grant leave to proceed by considering the preliminary objections raised by the Attorney General; the Supreme Court has no jurisdiction to intervene once the Speaker has certified a bill that was passed by Parliament. However, as demonstrated above, was the bill actually passed by Parliament?
On 6 February, Parliament issued a statement explaining their position that the bill was passed lawfully. “After the said amendments were presented and considered at the time of the committee, the Online Safety Bill was duly passed in Parliament after the third reading, as is the process for any bill thus presented.”
“...the Speaker has no role or authority to propose, accept, or reject any amendment/s and/or recommendation/s suggested by any party including the Supreme Court, where the sole authority of such exercise is vested with the house of Parliament, i.e. its members, often with majority vote.”
Having given their justifications and arguments, they said: “Thus, the office of the Speaker states that the Online Safety Bill was passed by the Parliament in accordance with the Supreme Court’s determination.” The full statement can be found on the Parliament website.
Thereafter the Human Rights Commission of Sri Lanka (HRCSL) issued a press notice dated 8 February where it stated: “The commission observed that in the Supreme Court’s determination on the Online Safety Bill, the court found that over 30 clauses in the bill and certain omissions in the bill were inconsistent with the Sri Lankan Constitution…having carefully reviewed the Online Safety Act, the commission observed that several sections and omissions in the act appear to be non-compliant with the Supreme Court’s determination on the Online Safety Bill.” The full statement is available on the HRCSL website.
The HRCSL also wrote to the Speaker: “Having carefully reviewed the Online Safety Act, the commission observes that the following sections and omissions in the act appear to be non-compliant with the Supreme Court’s determination on the Online Safety Bill” and listed out the sections. The letter is available on their website.
It is therefore evident that the legality of this act has been questioned by experts. If we are now questioning the lawful creation of the OSA, what happens to action taken for offences under this act? Will consequences faced by citizens for purported breach of the OSA be lawful?
Conclusion
Citizens can challenge bills of Parliament that may violate their rights or provisions of the Constitution. The Supreme Court acts as the guardian of these rights. Yet, these recent actions undermine Sri Lanka’s process for challenging bills. This also sets a dangerous precedent as acts are immune from judicial review in Sri Lanka. Well known jurist and constitutional law theorist A.V. Dicey (1835-1922) has quoted the hypothetical question posed by Leslie Stephen: “If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal…”
Thus, if Parliament tables a bill to kill all blue-eyed babies tomorrow and the Supreme Court were to determine that it’s unconstitutional, can the Speaker and Parliament still pass this law by ignoring the constitution and the terms set out by the Supreme Court?
(The writer is an attorney-at-law and fellow of St. Stephen’s College, Delhi, India. She is currently reading for a master’s degree in gender and women’s studies from the University of Colombo, following her postgraduate diploma of the same. Her research interests are gender, women’s studies, and ethnicity)
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The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication