The problem with the Online Safety Act (OSA) is not only its provisions. It is also about the institutions that will be entrusted with enforcing the provisions.

We know this because of the way current speech laws are enforced.

1/ This is a point raised by @HRCSriLanka in its October 2023 letter on the Online Safety Bill.

It highlighted the way the ICCPR Act is currently enforced in bad faith.



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The @HRCSriLanka's draft General Guidelines and Recommendations to Sri Lanka Police on Preventing Custodial and Encounter Deaths were launched on 11 December.

Some of the specific provisions of the draft are worth highlighting.



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https://twitter.com/HRCSriLanka/status/1737757482553053644

First and foremost, everyone has the right to be presumed innocent, and the right to remain silent when being questioned by the police.

That right to remain silent is guaranteed by section 110(2) of the Criminal Procedure Code.

2/

The #lka Supreme Court just issued an important judgment in Ramzy Razik's Fundamental rights case.

The judgment holds that section 3 of the ICCPR Act should not be understood as criminalising blasphemy.



1/supremecourt.lk/images/documen… The judgment also contains crucial observations on the scope and application of section 3 of the ICCPR Act, and endorses the guidelines issued by @HRCSriLanka on section 3.

State institutions must comply with this judgment when applying section 3 in the future.

2/

There has been some dis/misinformation on the Supreme Court Determination on the #lka Online Safety Bill.

The proper way to read the determination is to start with the conclusion of the Court: that a long list of clauses in the Bill are inconsistent with the Constitution.

1/ That means, 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 require a special majority (2/3) in Parliament to be enacted into law.

That's the starting premise.

2/

The state has a number of legal provisions at it's disposal to punish persons who say things that are perceived as offensive to a religion or belief. #lka

Section 3 of the ICCPR Act is one of them.

But to fall within the ambit of that section, there must be 'incitement'.

1/ 'Incitement' isn't defined in the Act, but it generally means encouraging others to act in some way.

So, encouraging someone to commit an act of violence or discrimination (and if there's a real chance they would in fact act in that way) could be considered 'incitement'.

2/

The #PTA is an affront to #lka's judiciary.

The judiciary has a crucial and time-tested role in being the guardian of individual liberty.

Sri Lanka's ordinary criminal law, and the constitutional safeguards that underpin it, recognise that judicial role.

1/ First, when a person is arrested, they have to be brought before the nearest judge as soon as possible. A judge must ensure the suspect is being treated humanely.

Our constitution and our criminal procedure law embody this principle.

It is a safeguard against #torture.

2/

What is the possible timeline ('possible' because in #lka politics nothing is certain) for the election of a new president by parliament?

The procedure is governed by article 40 of the Constitution & the Presidential Elections (Special Provisions) Act of 1981.

🙏@welikalaa

1/ Article 40(1)(c) of the Constitution provides that until Parliament elects a new president, the prime minister (or the speaker if there is a vacancy in the office of prime minister) shall act in the office of president.

2/

So many people today (including myself) were quick to doubt the authenticity of a letter posted on social media (revealing a state plan to block data tomorrow) when the TRCSL refuted it.

We should trust our instincts about the Sri Lankan state. It lies. A lot. All the time.

1/ We are pre-programmed to believing authority. So when a state entity says or denies something, our pre-programming kicks in, and we believe uncritically.

The struggle against state propaganda begins with a re-programming.

We need to think twice before we believe authority.

2/

When the president declares a state of emergency he:

1. Must immediately inform parliament
2. If parliament is adjourned, he must by proclamation summon parliament within 10 days.

Neither of the above steps appear to have been taken on 6 May.

1/ When parliament is in session, emergency would lapse 14 days after the emergency proclamation was issued - unless it is approved by parliament.

But if parliament is adjourned at the time, emergency would lapse 10 days after the first sitting of parliament.

2/

It is the CONSTITUTION and not the Sri Lanka Telecommunications Act that governs the limits of our freedom of expression.

Article 14(1)(a) of the Constitution provides that ‘Every citizen is entitled to the freedom of speech and expression including publication’.

1/ Article 15(2) and (7) of the constitution provides that the freedom of expression can be subject to restrictions as may be prescribed by law in the interests of inter alia national security, and public order.

2/

What is a 'public emergency' in #lka?

A devastating public health emergency for 2 years = no emergency declared

A crippling economic crisis for the past few months = no emergency declared

A country's leadership feels threatened by public protests = emergency declared!

1/ .@MASumanthiran and others advised the government to adopt a public health emergency law when the country was facing the COVID19 crisis, but that call was ignored.

2/

Yesterday's travesty in Hejaaz Hizbullah's case exemplifies why the Prevention of Terrorism Act in all shapes and forms MUST BE REPEALED.

The decision by the trial judge to refuse bail, despite the AG consenting to bail, flows from s. 15(2) of the #PTA.

1/

@Justice4Hejaaz S. 15(2) becomes relevant once the indictment is received by the High Court.

It makes it mandatory for the judge to remand the accused until the conclusion of the trial (note the distinction in Ahnaf's case - where no indictment was served).

@Justice4Hejaaz

2/

Article 15(7) of the Sri Lankan Constitution provides the constitutional basis for restrictions on fundamental freedoms found in article 14.

The freedom of movement is one of those freedoms.

Article 15(7) provides that restrictions must be prescribed by 'law'.

(1/5) 'Law' according to article 15(7) includes emergency regulations issued under the Public Security Ordinance (PSO).

The constitutional logic of this inclusion is that, sometimes, fundamental freedoms have to be limited during a public emergency.

(2/5)