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Tuesday February 27th, 2024

Committee-stage amendments to Sri Lanka’s ‘Online Safety Bill’: CPA concerned

ECONOMYNEXT – The Centre for Policy Alternatives (CPA), one of the entities that petitioned Sri Lanka’s controversial ‘Online Safety Bill’, has expressed deep concern over committee-stage amendments proposed to the bill.

Hours after the parliament’s deputy speaker announced a Supreme Court verdict on the constitutionality of the bill, the CPA said in a statement that the proposed amendments could drastically change the initially gazetted bill, straying from its original ‘merits and principles’, which would be against article 78(3) of the constitution.

The Supreme Court has determined that the bill is not inconsistent with the constitution and can be passed in parliament by a simple majority subject to amendments made to 31 of its provisions.

Deputy Speaker Ajith Rajapakse reading the Supreme Court determination said Tuesday November 07 morning that, if sections 3, 5, 7, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 36, 37, 42, 45, 53 and 56 of the bill are amended at the committee stage, it can be passed with a simple parliamentary majority.

Otherwise, the aforesaid provisions of the draft bill must be passed by a special majority in parliament, according to the court’s determination, as per Section 84(2) of the constitution.

The bill was challenged in the Supreme Court in terms of Section 121(1) of the constitution. The CPA was among parties that challenged the constitutionality of the bill.

Related:

Sri Lanka’s CPA challenges controversial Online Safety bill

According to the CPA, on October 18, during the hearing on the constitutionality of the Online Safety Bill, the Attorney General’s Department of Sri Lanka had produced to the Supreme Court a series of amendments that the government proposed to move during the committee stage when the bill was to be taken up in parliament. These amendments would make substantial alterations to the bill that was gazetted.

The CPA said that several of the amendments also deviate from “the merits and principles” of the originally gazetted bill and thus, are in contravention of Article 78(3) of the 1978 Constitution of Sri Lanka. Subsequently, such substantial change requires the government to withdraw the currently proposed bill and re-gazette the amended version, the organisation said.

The “most pertinent” of these changes are as follows, according to the CPA:

1) Removal of “Certain Statements of Fact” The originally gazetted OSB consistently makes reference to the vague terminology of “certain statements of fact”. This has now been replaced by the term “prohibited statements” which are defined by the offences set out in Part III of the OSB. This change is exemplified in the differences between the original Preamble of the OSB and the proposed amendment:

Preamble of the Online Safety Bill Proposed amendment
“An Act to establish the Online Safety Commission; to make provisions to prohibit online communication of certain statements of fact in Sri Lanka…” “An Act to establish the Online Safety Commission to provide safety from prohibited statements made online…”

Notably, this change is also seen in the Long Title, Clause 3, Clause 11(b) and the Part IV Heading.

2) Changes to the Objectives of the Bill

Problematically, Clause 3 of the original OSB set out its objectives as including protecting persons from statements that may be “threatening, alarming or distressing”. Such vague terminology could have been arbitrarily misused by the Government due to their inherent conceptual uncertainty. These words have now been removed and replaced whereby it is now an objective of the OSB to “protect persons against damage caused by the communication of prohibited statements”. While significantly changing the original objective of the OSB, this new amendment continues to adopt the broad and imprecise terminology of “damage”.

The objectives of the Bill have been used as a cover for far-reaching regulatory action initiated by the Minister. For example, the Government sought to justify the legality of the Prevention of Terrorism (De-radicalization From Holding Violent Extremist Religious Ideology) Regulations No.01 of 2021 based on the broad objectives of the Prevention of Terrorism Act. Though the4 Online Safety Bill has been initiated under the guise of ‘protection’ of the public from online harms, the threat of the Government looms larger.

3) Entry of the Constitutional Council in Appointments and Removals of Commission Members

Previously, Clause 5 of the OSB set out that the Executive President of Sri Lanka appointed the five members of the Online Safety Commission (OSC) with the only criteria being that those members have qualifications and experience in the fields of information technology, law, governance, social services, journalism, science and technology or management. Additionally, the President held the sole authority to accept the resignation of or remove the members of the OSC. However, the proposed amendment now makes such appointment and removal of members of the OSC by the President subject to Constitutional Council approval:

Clause 5 of the bill Proposed amendment
…the Commission shall consist of five members appointed by the President having qualifications and experience in one or more of the fields of information technology, law, governance, social services, journalism, science and technology or management.” “(1) The Commission shall consist of Sive members appointed by the President, subject to the approval of the Constitutional Council, from among the persons having qualifications and experience in one or more of the fields of information technology, law, governance, social services, journalism, science and technology or management.

(2) Subject to the provisions of section 6, the President shall recommend the names of Sive persons to be appointed as members of the Commission under subsection (1), to the Constitutional Council for approval.

(3) The President shall, within a period of fourteen days of receiving the approval of the Constitutional Council, appoint the persons approved by the Constitutional Council under subsection (2) as members of the Commission.

(4) Where the Constitutional Council refuses to approve the name of a person referred to in subsection (2), the President shall make a fresh nomination, and the provisions of subsections (1), (2), and (3) shall apply to such nomination accordingly.

(5) In the event of the President failing to make the necessary appointments within the period of fourteen days as speciSied in subsection (3), the persons approved by the Constitutional Council shall be deemed to have been appointed as the members of the Commission, with effect from the date of the expiry of such period.”.

 

Clause 7(2) Proposed amendment
The President may, for reasons assigned, remove a member of the Commission from his office.” A member of the Commission may be removed from his office by the President, subject to the approval of the Constitutional Council following a hearing of the relevant member that such person

(a) is unable to exercise, perform and discharge the powers, duties and functions of such office because of an infirmity of body or mind that has lasted for more than a period of three months;

(b) has failed to exercise, perform and discharge the powers, duties and functions of such office for a consecutive period of more than three months without the approval of the Commission; or

(c) is disqualified in terms of the provisions of section 6.

4) Changes to Voting Procedure

The gazetted OSB provides in Clause 9(5) that all decisions made by the Online Safety Commission would be decided by a majority vote of the members. The proposed amendment instead states that all decisions would be reached by a majority vote of the members of the OSC “present and voting at the meeting at which the decision is taken”. Since the quorum for a meeting of the OSC is only 3 members, technically, decisions can be made with only 2 members of the OSC supporting such a decision.

5) Expansion of Powers of the Online Safety Commission The amendment to Clause 11(i) of the OSB by Clause 11(h) would have the effect of enhancing the role of the Online Safety Commission from a regulator of ‘prohibited statements’ to an autonomous investigative agency:

Clause 11(i) Proposed amendment
“to carry out such investigations and provide such services upon being directed by any court”. “to carry out such investigations and provide such services as may be necessary to exercise and perform the powers and functions of the Commission”.

The gazetted Bill provided for some judicial control in the investigative functions of the Commission. The proposed amendment would give the OSC its own unique investigative powers and remove the minimum judicial controls proposed in the original Bill.

Pointedly, this pattern of expanding functions is seen in Clause 26(9) of the proposed amendment to the OSB, which now adds that in case of an individual or an internet intermediary non-compliance with notices issued by the OSC, the OSC “may apply to the Magistrate’s Court by way of petition and affidavit to obtain an order directing such person… to comply”.

In a similar fashion, Clause 31(3) now sets out that a person who fails to comply with the ‘code of practice’ issued by the OSC and consequently causes “wrongful loss to any other person, shall be liable to pay damages by way of compensation to the person who suffered such loss”. It would seem that the OSC is now capable of legislating for online practices.

As opposed to mitigating against the arbitrary discretion bequeathed to the Online Safety Commission by the originally gazetted OSB, the amendments only serve to further enhance those powers. 6) Alterations to Punishments for Communicating ‘Prohibited Statements’ Part III of the OSB contains various offences, many of which amount to ‘prohibited statements’, and the punishments attached to each. The proposed amendments to the OSB make wide alterations to the punishments for offences under the OSB, as follows:

Clause Punishment in gazetted bill Proposed amendment
12 “…imprisonment for a term not exceeding five years or to a fine…” Adding “…or to a fine not exceeding five hundred thousand rupees” to the existing punishment.
14(a) “…imprisonment of either description for a term not exceeding five years, or with fine…” Adding “… a fine not exceeding five hundred thousand rupees or with both such…” to the existing punishment.
14(b) “…imprisonment of either description for a term not exceeding five years, or with fine…” Adding “…to a fine not exceeding three hundred thousand rupees, or to both such imprisonment…” to the existing punishment.
17 “…imprisonment of either description for a term not exceeding five years, or with fine…” Adding “…to a fine not exceeding three hundred thousand rupees…” to the existing punishment.
18 “…to imprisonment for a term not exceeding one year or to a fine…” Adding “…to imprisonment for a term which may extend to seven years or to a fine not exceeding seven hundred thousand rupees…” to the existing punishment.
19 “… to imprisonment of description for a term not exceeding five years, or to a fine…” Adding “…a term which may extend to three years or to a fine not exceeding three hundred thousand rupees…” to the existing punishment.
21 “…imprisonment of either description for a term not exceeding seven years, or to a fine…” Adding “…to a fine not exceeding seven hundred thousand rupees, or to both such imprisonment…” to the existing punishment.
23 “…imprisonment for a term not exceeding twenty years or to a fine…” Adding “…imprisonment for a term not less than two years and not exceeding twenty years or to a fine not exceeding one million rupees…” to the existing punishment.

These offences are similar to already existing provisions in the Penal Code, except that those in the Bill deal with actions done online (as opposed to the Penal Code). However, the punishments specified in the Bill are harsher than what is specified for the corresponding offence in the Penal Code. Additionally, Clause 16 which criminalized communicating a false statement with deliberate intent to wound religious feelings has now been deleted.

7) Enhancement of Minister’s Discretion A significant amendment is proposed to Clause 37(1) of the OSB. The gazetted Bill authorised the Minister to appoint private individuals as “experts” to assist in the investigation of the commission of an offence subject to the courts deeming such appointment “necessary”. However, the amendment removes this judicial safeguard and now allows the Minister to appoint the so-called “experts” without prior approval by the courts:

Clause 37(1) Proposed amendment
Where the court deems necessary, the Minister may by Order published in the Gazette appoint a person, an institution or a body of persons having the specified qualifications and experience in  information technology (hereinafter referred to as “an expert”), to assist any police officer in any investigation…” The Minister may by Order published in the Gazette appoint a person, an institution or a body of persons…”

8) The Commission’s Ability to Institute Criminal Proceedings

Clause 42 of the OSB is to be amended to allow the OSC to directly institute criminal proceedings against any citizen. This is a significant deviation from the powers originally conceived for the Commission, in the originally gazetted Bill. It is also apparent that the amended Clause 42(1) is convoluted and incoherently framed:

Clause 42 Proposed amendment
“Save as expressly provided in this Act, the provisions of the Code of Criminal Procedure Act, No. 15 of 1979, 25 shall, mutatis mutandis apply to investigations, the trial of offences and to appeals from judgements, sentences and orders pronounced at any such trial under this Act.” “(1) Save as expressly provided in this Act, the provisions of the Code of Criminal Procedure Act, No. 15 of 1979, shall, mutatis mutandis apply to investigations, the trial of shall, mutatis mutandis apply to investigations, institution of proceedings, the trial of offences and to appeals from judgements, sentences and orders. pronounced at any such trial under this Act.

( 2 ) Where the Commission, on consideration of material collected in the course of investigations conducted under this Act, is satisfied that any person has committed an offence under the provisions of this Act, it may take steps to institute criminal proceedings in terms of section 136 of the Code of Criminal Procedure Act, No. 15 of 1979.”

(Colombo/Nov07/2023)

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Sri Lanka parliamentary committee says electricity tariffs should be reduced by 20 pct

ECONOMYNEXT — A parliamentary Sectoral Oversight Committee on Alleviating the Impact of the Economic Crisis has recommended to the Public Utilities Commission of Sri Lanka (PUCSL) that electricity tariffs be reduced by at least 20 percent.

A statement from parliament said on Monday February 26 that, following an analytical review of the figures presented by the Electricity Board, Public Utilities Commission, etc. and taking into consideration all other factors affecting the price of electricity, including considering the opinion given by experts that the existing electricity price can be reduced by about 33%, price of electricity should be reduced by at least 20% in the year 2024 so that the state-run Ceylon Electricity Board (CEB) will not suffer any loss.

PUCSL officials have informed the Committee that by the end of this month, they can submit the necessary recommendations to reduce the electricity bill, according to the statement.

The matter was taken up for discussion when the committee, chaired by MP Gamini Waleboda, met in the Parliament on February 22.

Officials from the Ministry of Industry, Ministry of Finance, Central Bank of Sri Lanka, Public Utilities Commission, Industry Development Board, Enterprise Development Authority, Department of Population and Statistics, Department of Inland Revenue and from government institutions including the Micro, Small and Medium Scale Industries Board and a group of industrialists had also been called for the meeting.

“The Committee gave several directives to the relevant institutions and officials to identify the micro, small and medium scale industries that are directly affected by the economic crisis and to activate the local economy and increase the foreign exchange earnings by reviving the industry sector.

“The Committee pointed out that due to the increase in electricity bills, the number of electricity connection cuts reported across the island has exceeded one million. It was also emphasised that in order to alleviate the pressure on the industry and the society, it should be arranged to provide electricity connections again by charging only 50 percent of the outstanding charges at the initial stage with the concessional basis of payment of outstanding electricity charges on installment basis,” the statement said.

The committee was also of the view to allow the customer to pay the connection fee in installments so as to avoid discouraging new entrepreneurs to start micro, small and financial industries due to high charges for getting fixed electricity connection and instructed to review the new connection fee and work to reduce it as much as possible.

The committee chair has instructed the PUCSL to conduct an audit on the electricity consumption in the public sector as an approach to ensure energy security.

“The Committee recommended to the Ministry of Finance and the Central Bank to start a loan scheme at subsidised interest for the purchase of solar panel systems with a view to promoting solar energy as a source of energy supply to industries. The Ministry of Finance expressed its agreement to provide refinancing facilities subject to a maximum as per the proposal made by the Committee to implement a loan scheme targeting micro, small and medium scale industrialists under subsidized interest rates.

The committee has also recommended that raw materials that must be imported from abroad and impose tax concessions on such raw materials be identified to ensure the supply of raw materials required for the smooth running of micro, small and medium scale industries. Copper, lead, aluminum and other industrial scraps used as raw materials in various domestic industries currently being sold by the CEB to external buyers and other entities should also be issued to micro, small and medium scale industrialists recommended by the Ministry of Industry and the Industrial Development Board, the committee has recommended.

The definition used by the Department of Population and Statistics for micro, small and medium industries and the definition used by other institutions such as the Industrial Development Board and the Central Bank for those industries are different from each other, which is an obstacle in making policy decisions, the committee had noted, directing the Department of Population and Statistics to support to the policymakers by releasing statistical data based on a common definition.

“The committee also recommended that the Credit Information Bureau should take prompt action to remove their credit information from the blacklists so as to facilitate access to credit facilities for micro, small and medium scale industries facing financial crisis to activate their balance sheets and to review all existing laws and procedures for registration of micro, small and medium scale industries as well as to obtain licenses and introduce a simple system.

“The committee informed all the parties to establish a steering Committee headed by the Ministry of Industry to implement the recommendations given by the Committee and to report its progress within a week,” the statement said. (Colombo/Feb27/2024)

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Sri Lanka sets up fund to help children of Gaza

The United Nations Relief and Works Agency for Palestine Refugees in the Near East is mandated to provide education, health, relief and social services, and emergency assistance to refugees. (Pic courtesy UNWRA)

ECONOMYNEXT – Sri Lanka’s cabinet of ministers have approved a proposal by President Ranil Wickremesinghe to set up a fund to help children caught in the war in Gaza, a statement said.

The government will contribute a million US dollars and use funds allocated by state agencies for Ifthar celebrations.

Public contributions are also called.

The Presidential Secretariat is requesting public donations citizens for the “Children of Gaza Fund” to be contributed to account number 7040016 at Bank of Ceylon (7010), Taprobane Branch (747) by 11th April.

Deposit receipts should to be forwarded to 0779730396 via WhatsApp. (Colombo/Feb27/2024)

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Top US official calls for inclusive reforms, deeper defence ties with Sri Lanka

ECONOMYNEXT — United States Deputy Secretary of State for Management and Resources Richard Verma in discussions with Sri Lanka officials had called for inclusive reforms and stronger human rights and also discussed deeper defence and maritime cooperation.

The United States remains committed to the economic growth and prosperity of Sri Lanka, statement from the US Embassy in Colombo quoted the official as telling government, civil society and economic leaders during his February 23-24 visit to Sri Lanka.

“Verma met with President Ranil Wickremesinghe and Foreign Minister Ali Sabry to discuss progress on Sri Lanka’s IMF program, including inclusive economic and governance reforms aimed at keeping Sri Lanka on the path to sustainable economic growth.  Deputy Secretary Verma stressed the vital need to protect human rights and fundamental freedoms, including freedom of expression. They also explored opportunities to deepen defence and maritime cooperation between the United States and Sri Lanka, including strengthening the Sri Lanka Navy’s capabilities to safeguard national security and promote a more stable Indo-Pacific region,” the statement said.

 On February 23, aboard the SLNS Vijayabahu, one of three former U.S. Coast Guard cutters transferred by the United States to Sri Lanka, Deputy Secretary Verma said: “I am pleased to announce that the Department of State has notified Congress of our intent to transfer a fourth medium endurance cutter to Sri Lanka.  The Department obligated $9 million in Foreign Military Financing to support this effort.  We look forward to offering the cutter, pending the completion of Congress’ notification period.  If completed, this transfer would further strengthen defense cooperation between the United States and Sri Lanka.  The ship would increase Sri Lanka’s ability to patrol its Exclusive Economic Zone, monitor its search and rescue area, and provide additional security for ships from all nations that transit the busy sea lanes of the Indian Ocean.” 

 Participating in the announcement at Colombo Port were Sri Lanka State Minister of Defense Premitha Bandara Tennakoon, Commander of the Sri Lanka Navy Vice Admiral Priyantha Perera, and U.S. Ambassador to Sri Lanka Julie Chung, who remarked, according to the statement: “The United States has previously transferred three cutters to the Sri Lankan Navy, which deploys these ships for maritime operations and law enforcement missions, countering human trafficking and drug trafficking, while supporting humanitarian assistance and disaster response efforts. The eventual transfer of a fourth vessel would be just one more point in a long history of cooperation between Sri Lanka and the United States in preserving a free and open Indo-Pacific region.” 

Verma also visited the site of the West Container Terminal (WCT), a deepwater shipping container terminal in the Port of Colombo. The WCT, currently being constructed by Colombo West International Terminal (CWIT) Private Limited with 553 million US dollars in financing from the U.S. International Development Finance Corporation, will provide critical infrastructure for the South Asian region, the embassy said.

“Operating near capacity since 2021, the Port of Colombo’s new addition will be the port’s deepest terminal and aims to boost Colombo’s shipping capacity, expanding its role as a premiere logistics hub connecting major routes and markets, boosting prosperity for Sri Lanka without adding to its sovereign debt,” it said. (Colombo/Feb27/2024)

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