By In recent deliberations, the Supreme Court of Sri Lanka scrutinized the proposed Online Safety Bill, sparking a comprehensive examination of its potential implications on constitutional rights. The central focus of the discourse revolves around the concept of preventive legislation, with the Court asserting that Parliament need not await the occurrence of a crime before enacting laws. This essay aims to delve into the key facets of the Online Safety Bill, exploring its intended purpose, constitutional concerns, the adequacy of pre-enactment review, and the delicate balance between ensuring public safety and safeguarding fundamental liberties.
Preventive Legislation and Constitutional Concerns:
The Supreme Court’s assertion that Parliament has the prerogative to proactively legislate, even before the occurrence of a crime, opens a dialogue on the potential encroachment upon basic liberties. This prompts a critical analysis of whether such legislation, intended to curb online abuse, might inadvertently lead to unconstitutional restrictions. Petitioners have raised valid concerns regarding certain clauses of the Bill, arguing that their overbroad nature poses a risk to fundamental freedoms.
Purpose of the Bill and Constitutional Justification:
The Online Safety Bill is ostensibly designed to address pressing issues such as online sexual abuse, scams, and interference with the administration of justice. The Court, justifying the legislation as a means to secure equal protection under Article 12(1) of the Constitution, emphasizes the necessity of preventive measures. However, a pertinent question arises: Does the Bill genuinely ensure equal protection, or does it introduce vulnerabilities that could be exploited?
Pre-enactment Review and Amendments:
The importance of pre-enactment constitutional review is an issue, raising concerns about the substantial number of amendments proposed by the Attorney General. This suggests a potential oversight in the legislative process, bringing into question the thoroughness of the review preceding the bill’s introduction. The amendments, particularly those limiting the President’s discretion in appointing members to the Online Safety Commission, attempt to address some of the initial concerns.
Oversight, Approval, and Judicial Safeguards:
The amendments propose a system of oversight and approval, introducing a role for the Constitutional Council in appointments. However, the essay questions the choice of procedure and raises lingering concerns about the extent of Presidential discretion. Judicial oversight is also introduced to mitigate the potential abuse of the Commission’s authority, providing a safeguard against arbitrary action.
Freedom of Expression and Online vs. Offline Offenses
The Court’s ruling on certain phrases in the Bill is inconsistent with the right to freedom of expression and underscores the delicate balance between ensuring safety and preserving fundamental rights. The conundrum of extending existing offline offenses to online platforms is examined, drawing attention to the unique challenges and potential implications of this transition.
Clear and Present Danger: The Potential Politicization of the Commission:
The primary apprehension highlighted in the examination of the Online Safety Bill is the risk of the Commission evolving into a political ‘creature.’ Despite amendments, concerns linger regarding the Commission’s independence from the political regime, raising questions about its ability to act impartially in the interest of online safety without succumbing to political influence.
