Went through the Supreme Court determinations around the Telecoms Bill, and late last year’s determination around the Online Safety Bill. The quality of the judgements is starkly different.
The Telecoms Bill determination found certain clauses in the Bill are inconsistent with the constitution, requiring them to be passed by a special majority. The Supreme Court’s judgement on the Online Safety Bill (OSB) is migraine inducing, and should have immediately recommended the halt of the Bill’s passage. That, of course, didn’t happen. And as lawyer and activist Ambika Satkunanathan notes, even if the Supreme Court’s amendments had been implemented in full, the resulting law would have still been fit-for-purpose or anything other than the obscenity SrI Lanka’s Online Safety Act is today.
In the Telecoms Bill judgement, the Court repeatedly emphasised that vague provisions violate Article 12(1) of the constitution on equality before the law. There’s pushback against an accretion of power in the TRC, vague definitions, self-serving submissions, and loose language. The judgement gets stricter – for e.g., recommended changing “may” to “shall” (in Clause 8), thus giving operators an opportunity to be heard before the TRC makes determinations, ensuring due process, and protecting against arbitrary decisions. In Clause 9, the SC accepted a proposed amendment specifying that the TRC should divide radio spectrum based on “International Telecommunication Union policies and guidelines or international best practices” rather than as it “thinks appropriate”. This provides more an internationally accepted normative framework, set of best practices, and testable criteria. The judgement recommends more parliamentary oversight, narrows grounds for certain actions by the TRC, and wanted Clause 33, which created a (bizarre) new offence of causing public commotion using a telephone completely deleted due to its vagueness.
The Telecoms judgement stresses the freedom of expression, and shows the Court’s awareness that regulatory overreach can threaten it. In discussing Clause 31, the Court references its previous ruling on the importance of whistleblowing in ensuring good governance, demonstrating concern for protecting speech that serves the public interest.
None of this was present in the OSB judgement.
There are also differences in how the Court approaches Committee Stage Amendments. The Telecoms Bill judgement warns against using Committee Stage amendments to substantially change a bill from its gazetted version. The SC notes that such changes could prevent citizens from challenging the altered provisions under Article 121 of the Constitution. The OSB judgement shows a willingness to consider and accept Committee Stage amendments proposed by the Attorney General (more than 30 of them!). The judgement frequently states that if certain amendments are made at the Committee Stage, particular clauses that might otherwise require a special majority could be passed with a simple majority – which is very different to the note of caution in the Telecoms Bill around the adoption of such measures.
Unlike the Telecommunications Bill judgment, the OSB judgment does not extensively critique the practice of introducing substantial changes through Committee Stage amendments or express concerns about how this might affect the public’s ability to challenge the bill.
Finally, the Telecoms Bill judgement references grounded research by Lirneasia. An interest in evidence-based, informed legal interpretation is, however, entirely absent in the OSB judgement, which doesn’t reference or even hint at any relevant research.
So what gives?
I don’t have a definitive answer, but the stark differences in the quality of the SC judgements strengthens what I’ve repeatedly noted around the near complete absence of subject/domain expertise in Sri Lanka (including in civil society) around addressing online harms, especially through legislative frameworks. This lack of expertise, and awareness of contemporary legal developments seemingly extends to the Supreme Court, which is clearly more competent, and better informed in dealing with matters related to spectrum management, and telecoms regulation. Good news for those who have written about how bloody atrocious the Telecoms Bill was.
But it is too late for those of us who are interested in meaningfully addressing online harms, but now have to deal with the unprecedented consequences of a law founded on complete lies, monumental incompetence, and total impunity.
Sanjana Hattotuwa 