by Ambika Sathkunanathan.
Analysis of Supreme Court determinations demonstrates many critical issues that adversely impact human rights were not addressed in its deliberations
Entrenching the Panopticon
The Online Safety law and the Anti-Terrorism Bill are two important building blocks in the architecture of repressive laws the Government is constructing. Both were challenged in the Supreme Court, with the Supreme Court finding certain provisions of both unconstitutional. Stakeholders, such as opposition politicians, civic activists, tech companies and the United Nations called upon the Government to, at a minimum, incorporate the Court’s recommendations in the Online Safety Bill before it was enacted. The Government instead passed the law ignoring parliamentary procedure and failed to ensure compliance with Supreme Court determinations.
“The Court does not strike down vague provisions. Instead, the Court accepts the amendments which the Additional Solicitor General submitted to Court, that seek to bring “clarity and consistency’ only ‘with regard to sentencing”, which it deems will remedy the unconstitutionality. Hence, vague terms that allow for subjective interpretation which could lead to violations of freedom of expression and dissent remain unaddressed”
An analysis of the Supreme Court determinations on the Online Safety Bill and the Anti-Terrorism Bill demonstrates that many critical issues that adversely impact human rights were not addressed by the Court in its deliberations.
The Online Safety Bill
The Court accepts the Government’s justifications for formulating the Online Safety Bill and concurs with the Government’s reasoning that the law seeks to protect women and children from online violence, even though there are only a handful of provisions in the law that address online violence.
Laws from other jurisdictions, such as the Network Enforcement Act in Germany and the Internet Safety Act in the United Kingdom, which have been criticised by human rights organisations for lacking adequate judicial oversight, enabling the violation of the right to privacy and being overly broad, are cited as positive examples of similar laws by the Court.
According to the Court there is no likelihood the Bill will encourage or permit the violation of Art 10 of the Constitution (freedom of thought, conscience and religion); the Court states the law will instead secure the equal protection of the law enshrined in Art 12 (1) because it aims to protect people from certain crimes.
While the petitioners who challenged the Bill argued that terms and words in the Bill are vague, the Court made a general statement that “the terminology used in the Bill have been taken either from the Sri Lankan Acts or from Acts that are available in other jurisdictions” and analysis shows that “the sources of such technical terms and the context of such words have been used are not vague and ambiguous and therefore, do not violate Article 1 2( I ) of the Constitution”. Despite this, the Court did find that certain terms, such as ‘wantonly’ and ‘maliciously’ in Section 14, which creates an offence, are “vague and ambiguous” and “violate Article 12(1) of the Constitution”. The Court reiterates this conclusion by referring to its own determination in the Colombo Port City Economic Commission Bill where it struck down vague and ambiguous provisions. Nonetheless, in this instance the Court does not strike down vague provisions. Instead, the Court accepts the amendments which the Additional Solicitor General submitted to Court, that seek to bring “clarity and consistency’ only ‘with regard to sentencing”, which it deems will remedy the unconstitutionality. Hence, vague terms that allow for subjective interpretation which could lead to violations of freedom of expression and dissent remain unaddressed. Moreover, the Court makes no mention of the absence of a definition of the term ‘prohibited statement’, which is the basis on which the Online Safety Commission can act, such as issuing notices to remove content that is deemed to be a ‘prohibited statement’.
Where Section 15 of the Bill is concerned, the Court does not address the arguments of the petitioners, one of which is that the provision could have a chilling effect on freedom of speech. Instead, the court accepts the amendment proposed by the Attorney-General, which, once again, is only in relation to the penalty for the offence. The Court does not even state whether without the amendment proposed by the Attorney-General, the provision would be in violation of the Constitution.
“The Court makes no mention of the absence of a definition of the term ‘prohibited statement’, which is the basis on which the Online Safety Commission can act, such as issuing notices to remove content that is deemed to be a ‘prohibited statement”
In relation Section 16 (which creates an offence), the petitioners argued that the phrase “wounding the religious feelings of another person” is “not defined and does not have a precise meaning. Thus, it is vague” and would result in self-censorship due to the chilling effect it would have on freedom of speech. Hence, they asserted it “is inconsistent with Article 12(1) of the Constitution”. The Court states it is “inclined to agree with the submissions made by the counsel for the petitioners”. Despite this, the Court states the clause can be passed in Parliament by a simple majority (and not a special majority as required by the Constitution in the event a clause is unconstitutional). In this instance too the Court does not substantively address the petitioners’’ arguments and instead focuses only on the penalty provision, i.e. it finds that the doubled penalty for a second or subsequent offence is excessive and requires them to be deleted or if not deleted to be passed by special majority. Furthermore, the Court says the Additional Solicitor-General agreed to remove the clause during committee stage amendments in Parliament. However, the Government did not remove Section 16 (wounding the religious feelings of any other person) per the undertaking given to the Court. Instead, the Government combined it with Section 17 (outraging the religious feelings of any other person). Hence, the vague provisions that could adversely impact fundamental rights remain.
The Court states that “While the ostensible aim of Clause 17 is to protect religious sentiments from intentional and malicious falsehoods, its actual scope extends beyond the remit of ‘online safety’, as traditionally understood”. Yet, it accepts that the amendment proposed by the Additional Solicitor- General to revise only the penal provision is adequate.
Section 37 of the Online Safety Bill empowers an expert “with the authority granted by a police officer not below the rank of a sub-inspector” to orally interrogate a person and demand documents or information from them. In this regard, the Court finds that only the absence of guidelines on the appointment process of the experts is inconsistent with Art 12 (1) of the Constitution and certain provisions of Article 14. To rectify this, the Court recommends that the provisions relating to the enlisting of experts in the Computer Crimes Act should be followed. It is pertinent to note that the similar provision in the Computer Crimes Act states the expert has the power to enter any premises with a police officer but the subsequent sections, which empower the expert to perform other functions, such as interrogate a person, do not require the acts to be done in the presence of the police officer. Hence, the problem of a civilian expert engaging in action that could curtail civic rights without oversight remains unaddressed.
The Anti-Terrorism Bill
The petitioners argued that the definition of terrorism in the Anti-Terrorism Bill does not adhere to existing agreed upon international standards. For instance, it contains vague undefined elements, such as acts ‘violating territorial integrity or infringement of sovereignty of Sri Lanka or any other sovereign country’. One of the offences in the Bill is causing damage to “place of public use”, which seven UN Special Procedures pointed out creates a new category of terrorism, whereas what is required is “pruning of counter-terrorism powers”. The Court however stated the definition would be constitutional if a clause that exempted protest, advocacy, dissent, from the remit of the provision was included.
“There are two ways to bestow police powers on the military; either through emergency regulations or via the President issuing a gazette every month under the Public Security Ordinance to call out the armed forces for the “maintenance of public order”. Both means are not permanent and are subject to time limits. The Anti-Terrorism Bill makes military participation in policing permanent. Involving military officers who are not trained in policing and have little to no knowledge of due process, combined with past racial profiling of Tamils and Muslims by the military, could lead to egregious violations”
Many petitioners argued that empowering the armed forces to engage in policing functions, such as arresting persons, could lead to rights violations. The Court disagreed with the petitioners as it believed that arrests could not happen “at the whim and fancy of a member of the armed forces” and stated that the “exercise of power is subject to objective criteria and only when the intensity of a criminal act reaches such a level as to constitute the offence of terrorism, the officers other than police officers can be pressed into service”. The reality is however quite different as the Bill allows armed forces to exercise policing powers when they have “reasonable suspicion to believe” a person has committed, or “there is an imminent possibility of committing by such person an offence under this Act”, which is not the high threshold the Court seems to deem exists in the Bill.
There are two ways to bestow police powers on the military; either through emergency regulations or via the President issuing a gazette every month under the Public Security Ordinance to call out the armed forces for the “maintenance of public order”. Both means are not permanent and are subject to time limits. The ATB makes military participation in policing permanent. Involving military officers who are not trained in policing and have little to no knowledge of due process, combined with past racial profiling of Tamils and Muslims by the military, could lead to egregious violations. The danger of allowing the military to conduct arrests is evidenced by thousands of arbitrary arrests for frivolous reasons, such as possessing a Quran in Arabic, after the Easter Sunday attacks. The Court nonetheless found that the sections legalising the permanent militarisation of policing are not inconsistent with the Constitution.
“The Court is satisfied that in the event of a violation, the affected person can seek a remedy either by filing a fundamental rights application or via writ. This is contrary to reality since most arrested persons hail from impoverished backgrounds and have no legal knowledge nor financial resources to seek legal remedies; a fact that is well-documented.”
The petitioners argued that requiring the magistrate only to give effect to a detention order, i.e. denying the magistrate the power to decide whether the detention is warranted, impinges upon judicial powers. The Supreme Court however viewed it differently and saw it as “temporarily demarcating a precise judicial role for the magistrate”, which they stated in no way impinges upon judicial powers. While Court finds the provisions have also “provided ample safeguards which provides the Magistrate with the power to protect a person from any act of torture…”, it does not address the primary concern of the petitioners, i.e. depriving the magistrate of the power to decide the legality of the detention could lead to arbitrary detention. Moreover, the Court asserts that the Magistrate will make an order giving effect to the Detention Order “only if it is a valid Detention Order”, even though 28(2) which states “the Magistrate shall make an order to give effect to such Detention Order”, robs the Magistrate of the discretion to refuse to give effect to the Order.
The Court is satisfied that in the event of a violation, the affected person can seek a remedy either by filing a fundamental rights application or via writ. This is contrary to reality since most arrested persons hail from impoverished backgrounds and have no legal knowledge nor financial resources to seek legal remedies; a fact that is well-documented. Justice Samayawardhena in the Supreme Court’s decision in the challenges against the Deradicalisation Regulations issued under the Prevention of Terrorism Act in 2021 stated that the argument that Government decisions “are reviewable and therefore no prejudice is caused to the rehabilitant is unacceptable. Litigation is time consuming and costly. It is the duty of the State to take all precautionary steps to safeguard the fundamental rights of the subjects”.
A critical issue the Court did not address is the expansion of the President’s powers. For instance, the Bill allows the President to proscribe institutions for which there is no transparent process nor objective criteria stipulated, nor for evidence to be presented. The proscription can be renewed annually with no end time period stated
A critical issue the Court did not address is the expansion of the President’s powers. For instance, the Bill allows the President to proscribe institutions for which there is no transparent process nor objective criteria stipulated, nor for evidence to be presented. The proscription can be renewed annually with no end time period stated. The President is therefore legally authorised to ‘punish’ any organisation without presenting evidence of wrongdoing, and criminalise links with the organisation, thereby putting at risk the fundamental rights to free association and assembly, guaranteed by the Constitutional and international human rights standards.
“Incorporation of the recommendations of the Supreme Court will not remedy the adverse impact of the egregious provisions in the Online Safety law and the Anti-Terrorism Bill on the civic rights of Sri Lankan citizens”
Another similar provision that was not dealt with by the Court is the President’s power to declare a prohibited place, for which no objective criteria is stipulated. Neither did the Court deal with the power of the President to make regulations, which empowers the executive to exercise legislative power, and thereby impinges on the legislative power of Parliament.
Hence, even the incorporation of the recommendations of the Supreme Court will not remedy the adverse impact of the egregious provisions in the Online Safety law and the Anti-Terrorism Bill on the civic rights of Sri Lankan citizens.
Courtesy of The Daily FT