Online Safety Bill: Approving authority given to CC, instead of President

The authority to approve members to the five-member Online Safety Commission will be vested with the Constitutional Council (CC) rather than the President under extensive amendments to the Online Safety Bill.

According to the amendments, the Commission shall consist of five members appointed by the President “subject to the approval of the Constitutional Council.” Accordingly, the President shall recommend the names of five persons to be appointed as members of the Commission to the CC.

Where the CC refuses to approve the name of a person as a member of the Commission, the President shall make a fresh nomination. Even when it comes to the removal of a member of the Commission, the President can only do so subject to the CC’s approval.

The changes are a significant departure from the original draft of the bill, which vested the sole authority of appointing and removing members of the Online Safety Commission with the President.

The changes come as part of a long list of amendments that the Attorney General’s Department submitted to the Supreme Court (SC) during a hearing into fundamental rights petitions challenging the constitutionality of the bill. The determination of the three-judge SC Bench comprising Justices Priyantha Jayawardena, Shiran Gooneratne and Achala Wengappuli regarding the bill was announced in Parliament by Speaker Mahinda Yapa Abeywardena on Tuesday (7).

As per the SC’s determination, Clauses 3, 5, 7, 9, 11, 12, 73, 74, 75, 16, 17, 18, 79, 20, 27, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 36, 37, 42, 45, 53 and 56 are required to be passed in Parliament by a special Parliamentary majority. The Court, however, has noted that if these clauses are amended at the committee stage, they can be passed by a simple majority.

The Court was of the opinion that the punishments set out in the draft bill for repeat offenders are excessive and as such, violate Article 12(1) of the Constitution. Hence, the said clauses should be passed by a special majority in Parliament. However, if the punishments stipulated for a second or subsequent conviction are deleted, the said inconsistency will cease, and therefore, the said clauses can be passed by parliament by a simple majority, the judges ruled.

The SC agreed with submissions made by counsel for the petitioners that Clause 16, which refers to 'wounding the religious feelings of any other person', was not defined, did not have a precise meaning, and was thus vague. The Court noted that the clause would require a special parliamentary majority. The AG’s Department informed the Court that this entire clause would be removed at the committee stage through amendments.

There is “no provision in the Bill to secure the confidentiality of the information that may transpire during an investigation carried out under the Bill, which is essential,” the Court has observed. Hence, it has proposed several amendments to be made at the committee stage to fill this vacuum.

The Court also stressed that it would be appropriate to introduce a deeming provision to the bill that would facilitate the prosecution of persons who commit offences outside the territory of Sri Lanka. Such provision is incorporated into the Computer Crimes Act, it noted, adding that the legislature may consider the following amendment: "For the purposes of the application of the provisions of this Act in relation to an offence committed outside the territory of Sri Lanka shall be deemed to have been committed in Sri Lanka."

Having examined the bill, the judges observed that, apart from these clauses, other provisions of the bill were not inconsistent with the Constitution. Therefore, the bill could be passed by a simple majority in Parliament, subject to the amendments stated in the ruling.

The changes come as part of a long list of amendments that the Attorney General’s Department submitted to the Supreme Court (SC) during a hearing into fundamental rights petitions challenging the constitutionality of the bill.