The need for judicial review of laws passed

Does the country’s Online Safety Bill that was passed this week amidst opposition legislators alleging that amendments directed by the Supreme Court had not been reflected in the Bill and new clauses had been slipped into the bill, meet standards of best practices and good governance? A careful scrutiny of those allegations has yet to be made.

Even so, and in the light of similar controversies earlier, the fracas raises the question as to why Sri Lanka does yet not have judicial review of legislation while the courts in neighbouring India have been enjoying this right since the independence of that country from the British.

We do not see the legal system in Republican India being cast into disarray and tussles created between the legislature and the judiciary due to that judicial power being exercised judiciously. Rather, many would say that Indian jurisprudence has been enriched thereby, and a healthy balance struck between the two organs of State. In fact, conferring Sri Lankan courts the power to review enacted laws will prevent ugly allegations such as those raised in the House this week over the Online Safety Bill.

Needless to say, such allegations impact negatively on the legislative process with consequences that go beyond the fate of one bill. This is particularly so with the Government imploring international investors to come into the country, promising a good legal environment to enable the transformation of a highly challenged and stumbling digital economy.

Certainly, the bill that was rushed through Parliament this week can be fundamentally improved in almost the whole of its contents, including a narrower framing of Clause 21 which many see as bringing back criminal defamation through the back door. It is a pity that these criminal laws that Parliament, in its wisdom, scrapped unanimously in 2002, due to the initiative of then Prime Minister Ranil Wickremesinghe, are now being brought back under his Presidency, depriving him of the kudos for what he did for freedom of speech and expression back then. The independence of the proposed Online Safety Commission must be further tightened and loosely worded terms that run through the bill must be fittingly revised.

A bad Online Safety law for Sri Lanka would be worse than no law at all. And the question also arises as to why the almighty hurry to pass the bill in the first place without a sober and careful reading through its provisions? Should not the version of the bill incorporating the revisions as directed by the Court have been presented to parliamentarians and the public before the House voted on it?

The Public Security Minister’s response that concerns communicated by various parties have been noted and that appropriate amendments would be brought in due course as incorporating those changes now would change the bill’s character, is hardly the appropriate answer that the country needs. It is almost a confession that all's not well with the bill. Why then pass a bill on the premise that amendments will be brought to fine-tune it, after its passage in Parliament?

This is not an acceptable way to frame, table and pass laws.