Second FR petition filed in SC against Online Safety Act
A second fundamental rights petition was filed in the Supreme Court (SC) this week against the Government’s Online Safety Act (OSA) on grounds, among others, that the Speaker’s action in purporting to certify the Bill while Parliament stood prorogued is ex facie unconstitutional, illegal, void ab initio and a nullity.
Filed by four office bearers of the United Centenary Front (UCF), the petition also states “it is beyond doubt that the rights of the citizens guaranteed under the Constitution had not been safeguarded and upheld inasmuch as the several Constitutional inconsistencies highlighted by the Supreme Court in its determination had not been given effect to an/or complied with”.
Last year, the SC determined that the Online Safety Bill (OSB) was not inconsistent with the Constitution and could be passed in parliament by a simple majority, subject to amendments made to 31 of its provisions.
“In fact, several clauses which were advised to be deleted by the Supreme Court had not been deleted when the purported document titled Online Safety Act No. 9 of 2024 was published,” the UCF petition holds.
“Mere or partial compliance with the determination of the Supreme Court in respect of a Bill renders the document contrary to the Constitution and bereft of Constitutional validity and cannot accordingly be enacted into law,” it states, asserting that total – not selective or partial – compliance is required.
The petitioners are UCF President Asiri Prashan Jonathan de Visser; Treasurer S Heshanka Suraj Fernando; Advisory Council Member Heminda Nishan Jayweera and Executive Council Member Priyanka Jeyaraj Naasir Hasan.
Last week, M A Sumanthiran, PC and Tamil National Alliance MP, also filed a petition before the SC challenging Speaker Mahinda Yapa Abeywardena’s certification of the OSA on February 1, 2024. The Attorney General (AG) is also a respondent.
Mr Sumanthiran flags concerns about the passage of the Online Safety Bill (OSB) into law, primarily that all the amendments that had been suggested by the Supreme Court in order to make it compliant with the Constitution had not been included. He argues that the Act purportedly certified by the Speaker was enacted in violation of constitutional provisions.
At the OSB’s third reading in Parliament, the Speaker declared the Bill passed by a majority vote without granting requests for a division. The OSB did not receive twothirds support in Parliament – a requirement to ensure its constitutionality in view of the fact that the SC’s proposed changes had not all been incorporated – either at its second or third reading.
Mr Sumanthiran stated that, under the Constitution, when a special majority is held to be required by the SC, the Speaker shall only certify a law if the Bill is been passed by such a special majority. This was flouted. Also, the said purported certification was done while Parliament remained prorogued and before there could be an examination of the Bill in comparison with the SC determination.
The OSB was “never passed into law in terms of the Constitution,” his petition held, detailing several suggestions from the SC determination that were not in the law. It maintained that the Speaker had violated the public trust.
Mr Sumanthiran sought from the SC an interim order suspending the “purported document published as the Online Safety Act No. 9 of 2024”; a declaration that the certification of the OSA is a nullity in law; that the OSA is ultra vires the Constitution; and a calling for the record from the Speaker to determine on what advice he had acted.
The UCF petition goes further by requesting the SC to make a declaration of the imminent infringement of the fundamental rights of the petitioners and the People of Sri Lanka guaranteed under the Constitution – on the grounds that there is a risk of such due process (in the passing of laws) being violated similarly in future.
It is beyond doubt that the rights of the citizens guaranteed under the Constitution had not been safeguarded and upheld