HRC finds five sections of new Act inconsistent with SC determination

Opposition’s criticism of Online Safety Law vindicated

By Shamindra Ferdinando

The ongoing controversy over the enactment of the Online Safety law (ONLINE SAFETY ACT, No. 9 OF 2024) in violation of the Supreme Court determination has taken a new turn with the Human Rights Commission (HRC) contradicting Speaker Mahinda Yapa Abeywardena’s declaration pertaining to the legality of the new law.

Dissident SLPPer Prof. G. L. Peiris told a media briefing, at his Kirula Road residence, on Monday (12), that the HRC, in a letter dated Feb 08, 2024, had informed Speaker Abeywardena that the new Act was not in line with the SC’s determination of the Online Safety Bill.

The HRC wrote to the Speaker just two days after the Speaker’s Office issued a statement dismissing repeated accusations over the manipulations in the enactment of new law. Prof. Peiris said that the HRC’s letter followed the Speaker’s endorsement of the Certificate on the Online Safety Bill on Feb 02, 2024, thereby making it the ONLINE SAFETY ACT, No. 9 OF 2024.

The former External Affairs Minister said the HRC’s letter, also copied to President Wickremesinghe, Public Security Minister Alles, and Attorney General Rajaratnam, PC, has pointed out that the SC’s recommendations hadn’t been accommodated in Section 13 (Clause 13 of the Bill), Section 16 (Clause 17 of the bill), Section 19 (Clause 21 of the Bill), Section 20 (Clause 22 of the Bill) and Section 27 (Clause 31 of the Bill).

The four-page letter has been signed by Justice L.T.B. Dehideniya, who received the appointment in late June last year.

Other members of the Commission are Prof. Thaiyamuthu Thaanaraj, Prof. Fathima Farzana Haniffa, Nimal G. Punchihewa and Dr. Gehan Dinuk Gunatilleke.

Prof. Peiris, who recently aligned himself with the main Opposition Samagi Jana Balawegaya, said that the Speaker owed an explanation. The HRC’s declaration has quite clearly proved that the new law was contrary to the Constitution and therefore couldn’t be accepted under any circumstances, Prof. Peiris said, alleging that though there had been previous infringements, the country never witnessed such blatant violation before.

Asked whether the SJB could seek the Chief Justice Jayantha Jayasuriya’s intervention and procedures to follow in case Parliament failed to adhere to the SC’s recommendations and any similar blatant violation before, Prof. Peiris said: “Never as blatant a violation as this. Unfortunately, the Constitution provides in Article 80(3) that, once the Speaker certifies a Bill, it cannot thereafter be challenged in a Court of Law. However, there is explicit provision that, where the SC Determination specifies that particular sections can be passed with a simple majority only subject to amendments required by the SC, Parliament shall incorporate these amendments, otherwise enactment by a special majority of 2/3 is mandatory.

The former Constitutional Affairs Minister said: “We will argue that in view of this provision the Bill has not been validly enacted with mandatory constitutional requirements. If the SC Determination, or parts of it, can be disregarded with impunity, this makes pivotal Articles like 120 and 123 redundant. This goes to the very root of a valid legislative process.

The former law Professor stressed that there is an obiter dictum by the late Justice Mark Fernando that, where the legislative process is flawed, in that constitutional provision have been contravened, certifications the Speaker will not save the Bill.

At the onset of the briefing, Prof. Peiris said that in terms of seriously flawed new law enforcement authorities have made first arrest on Sunday (11) and seemed to be bent on using the draconian law to suppress the free media.

The Opposition would resort to what the emeritus law academic called suitable legal challenge.

Declaring that the HRC is deeply concerned over the glaring omissions in the Online Safety Act in terms of the Act’s full compliance with the SC’s Determination, Justice Dehideniya, on behalf of the HRC warned: “any such omission, and consequently, any remaining inconsistency with the Constitution, would have required that the Online Safety Bill be enacted only with a special majority in Parliament. Therefore, the failure to ensure full compliance with the Court’s determination may give occasion to serious concerns over whether the Act, in its current form, received the requisite number of votes in Parliament.”

Prof. Peiris emphasised that the HRC has confirmed the Opposition complaints”

Following a two-day debate, 108 MPs voted for the Bill and 62 against on January 24.

Pointing out that the HRC has taken up the issue with the Speaker after careful examination of the Bill and SC’s recommendations, Prof. Peiris emphasized that the Speaker should accept responsibility for the unprecedented development. Prof. Peiris urged the SLPP, too, to look into this matter as the ruling party could absolve itself of the responsibility for the pathetic state of affairs.

Prof. Peiris said that the Speaker’s Office should respond to the HRC. “We intend to vigorously pursue this matter as Speaker Abeywardena cannot be allowed to pursue his own agenda at the expense of parliamentary traditions,” he said.