The delay in passing the draft amendment bill incorporating revisions to the Online Safety Act (OSA) has prompted concern among stakeholders, even as the Government assures that the process is underway to pass the amendment. 

Despite the Cabinet of Ministers approving a proposal to formulate this draft amendment bill in February, the bill is yet to manifest. 

A statement from the Government Information Department on 12 February noted that while the provisions of the OSA were being implemented at present, “since the amendments submitted at the committee session in Parliament with regard to the said draft bill should be made in par with the decision of the Supreme Court, there had been no opportunity to introduce proposed amendments furnished by the eminencies in the field”. 

It further added that the Cabinet of Ministers had therefore granted approval to the resolution furnished by the Public Security Minister to direct the Legal Draftsman to prepare a draft bill for amending the OSA based on revisions recognised through further discussion with eminencies in the field who had forwarded proposals for relevant amendments.

Speaking to The Sunday Morning, Public Security Ministry Secretary Viyani Gunathilaka denied any delay, stressing that the process was ongoing: “At present, we have received the amendment bill from the Attorney General (AG) with comments. We will incorporate these comments and present the bill again. There is no great change, but there are certain corrections which will be fixed and sent. 

“We will be sending this soon and if we receive quick approval from the AG, we will forward this bill to Cabinet, following whose approval it will be presented to Parliament.”

Concerning delay

However, Media Analyst Nalaka Gunawardene, who was part of the four-member expert team to draft amendments to the OSA, expressed concern over the delay, telling The Sunday Morning that the longer the amendment was delayed, the longer the problematic OSA would continue to be implemented in its current form. 

“The act passed in January has many problems and the amendment was meant to mitigate at least some of these. So the longer it takes for the amendment to be passed, the longer the problematic law remains. While the Online Safety Commission (OSC) is yet to be established, it gives a pathway for someone who considers themselves affected to go straight to the magistrates; already, a few individuals have gone and complained.”

Addressing the amendment itself, he noted that it did not correct all that was problematic about the act, saying: “It is an attempt to mitigate the major problems; it does not mitigate all the problems.”

Further noting that the process was taking an inordinate amount of time, he added: “While the inputs were given for the amendment to be drafted, no one has yet seen the exact wording in the bill. The bill is currently with the AG, having been drafted by the Legal Draftsman’s Department. Without seeing the bill, neither the tech companies nor any one of us are able to say whether this [the amendment] will sufficiently address the problems.

“As someone who was involved in providing input for the amendment to be drafted, I am very frustrated by the unnecessary delay between the Legal Draftsman and the AG’s Department. The OSA was passed on 24 January and by early February, we had given input for the amendment because the Public Security Ministry wanted to amend it immediately. Therefore, we provided detailed technical input in good faith. 

“During February, we reached an agreement between the ministry and the informal expert group that provided those inputs, following which it was passed to the Legal Draftsman. For three-and-a-half months it has been with these two entities. 

“The latest we know is that the Legal Draftsman has done their job and that the bill is with the AG. The AG’s Department is taking its own cool time for something that is so crucial for freedom of expression, which is very frustrating and disappointing.”

Legal concerns 

Meanwhile, outlining the legality of the OSA in its current form, International Centre for Ethnic Studies (ICES) Executive Director Mario Gomez pointed out that there were uncertainties in terms of the OSA’s implementation. 

“The Online Safety Act was passed by Parliament and certified by the Speaker. As such, it is law. The Government has indicated that it will amend the law, but this it has not done. 

“The Supreme Court has indicated that it will not review the legislative process leading up to the enactment of the act even though there were concerns that the Supreme Court’s recommendations on the bill were not incorporated by Parliament in passing the law. It’s not clear if the act has been brought into force by the subject minister.”

He pointed out that the lack of an OSC left the OSA’s legal purview in question. 

“The OSC is an integral part of the law. This is also one of the most controversial aspects of the law, because of the wide powers the commission has. So far, the commission has not been constituted and it is not clear if the law can be implemented in the absence of a legally constituted OSC. 

“The President nominates the members of the OSC and the Constitutional Council (CC) has to approve those nominations. Where the CC does not approve the nomination, then the President is required to submit a fresh name for approval.”

However, while observing that the law could be challenged during its implementation, he also noted that the Bar Association of Sri Lanka or other entities should consider setting up a legal defence fund to support those who are charged under the law. 

“One of the most effective ways of challenging the oppressive nature of the law is in its implementation. The Supreme Court does not have the power to review legislative action. However, it does have the power to review Executive and administrative action, and this it does on a daily basis. 

“When people are detained, arrested, or charged under the law, it may become possible to seek judicial review on the ground that the implementation of the law violates fundamental rights in the Constitution. This is left to be seen as the law plays out. The actions of the OSC can also be judicially reviewed by the courts.”

Fundamentally flawed

Similarly, former Commissioner of the Human Rights Commission of Sri Lanka (HRCSL) Attorney-at-Law Dr. Gehan Gunatilleke observed that the OSA in its present form was “not salvageable via any amendment; it is fundamentally flawed,” saying: “I have doubts about whether any amendment bill can remedy the defects of the current act.” 

However, he noted that since the amendment bill was yet to be published, he was unable to comment on it yet.  

Nevertheless, he noted that while the proposed amendment could change aspects of the act, when the amendment bill is placed on the Order Paper of Parliament, it could be challenged and the Supreme Court would subsequently need to scrutinise the bill, similar to the fundamental rights petitions the court has taken up regarding the act.  

Further pointing out the legally questionable nature of the act, he said: “Many, including the HRCSL, have raised concerns with respect to whether the bill that was taken up in Parliament received the requisite number of votes to be passed into law. 

“The Supreme Court’s determination stated that the bill would require a special majority in Parliament unless all the amendments it proposed were introduced at the committee stage. Concerns have been raised that some of those key amendments were missed, and that therefore, the bill needed a special majority in Parliament.”