The Supreme Court has determined that some sections of the Telecommunications Amendment Bill are inconsistent with the Constitution.

The Determination of the Court as to the constitutionality of the Bill, titled “Sri Lanka Telecommunications (Amendment) Bill,” is as follows:

1) Proposed Section 9A (2) [Clause 8] states that the TRC may give the provider or operator who is the subject of such investigation, an opportunity to be heard and produce documents before making a determination and thereafter make an appropriate order. The use of the word “may” might be construed to mean that it is not compulsory for the rules of natural justice to be followed which makes it inconsistent with Article 12 (1) of the Constitution. The inconsistency will cease if the word “may” be replaced with the word “shall”.

2) Clause 9 of the Bill is inconsistent with Article 12 (l) of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84.

The learned ASG submitted that the following amendment will be moved at the Committee Stage:

Page 8, Clause 9: delete line l0 to II and substitute the following:- “frequency spectrum into number of bands based on International Telecommunication Union policies and guidelines or international best practices, in the best interest of the efficient management of the frequency spectrum and specify the service or”;

We are of the view that the inconsistency with Article 72 (7) will cease if Clause 9 is amended as suggested.

3) The learned ASG submitted that a further amendment is proposed to Clause 9 as follows:

Page 8, Clause 9: insert the following immediately after line l7:- “(d) vary the service or services or purpose for which such radio frequency has been assigned, from time to time.”

The proposed amendment is inconsistent with Article 727lL) read with Articles 3 and 4 of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84 and approved by the People at a Referendum by virtue of Article 83.

4) Clause 12 [proposed Section 17(10)] of the Bill is inconsistent with Article 72(t) of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84.

The inconsistency will cease if: (i) the word “facility” in Clause 12, page L3 line 14 is replaced with the word “infrastructure”; (ii) line 17 on page 13 is deleted and substitute the following: “specified by regulations made under this Act.”

5) Clause 13 [proposed Section 17A. (1)] is vague and overly broad and therefore inconsistent with Article L2 (7) of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84. The inconsistency will cease if Section 77A. (1.) in Clause 13 is amended by deleting the words “and on any contravention of the provisions of this Act or any regulation or rule made thereunder”

6) Clause 13 [proposed Section 178] is vague and confer unfettered power on the TRC to revoke a licence and is inconsistent with Article 72 (7) of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84.

The inconsistency will cease if: (a) proposed Section 178 (4) (b) is deleted; and (b) proposed Section 178(6) is amended by deleting the words “on the breach of any terms and conditions of the licence or”; (c) proposed Section 17 (8Xd) is deleted.

7) Clause 18 (5) [proposed sections 22 (3A) and 22 (38)] are vague and is inconsistent with the fundamental rights guaranteed by Article L4 (L)(a), La (1Xg) and 72 (7) and can only be passed with the special majority required under paragraph (2) of Article 84.

The inconsistency will cease if Clause 18(5) is amended as follows: Page 24. Clause I 8 : (l) delete lines I to 22 (both inclusive) and substitute the following:- “(3A) In the overall planning and management of radio frequency spectrum, the Commission shall have power to- (a) direct any person to whom a licence has been issued under subsection (l) to comply with and to implement new technologies for the efficient use of radio frequency spectrum in the public interest; and (b) vary any radio frequency after giving written notice to the relevant person prior to a reasonable period of such variation and giving reasons therefor.

(3B) Any person who is aggrieved by the variation of the radio frequency referred to in paragraph (b) of subsection (3A) may appeal to the Commission within three weeks from the receipt of such notice referred to in that paragraph.

(3C) The Commission shall, after giving such aggrieved person a fair hearing on any objection to such variation communicate its decision to the person who made an appeal to the Commission within three weeks from the date of receipt of such appeal.

(3D) The Commission may consider payment of any compensation to the relevant person whose radio frequency has been varied under paragraph (b) of subsection (3A).”; and (2) insert the following immediately after line 22:- “(6) by the insertion immediately after subsection (4) thereof, of the following new subsection:- “(4A) Any person who is aggrieved by the decision referred to in subsection (3C) of ‘ this section may appeal to the Court of Appeal within one months from the date of communication of the decision of the Commission,

(4B) The Court of Appeal may grant any interim relief to such aggrieved person pending the final determination of the appeal.”

8) Clause 78(7) of the Bill [proposed Section 22(7)) is inconsistent with Articles 12 (1) and 14 (1Xa) of the Constitution. The inconsistency will cease if proposed Section 22 (71 is amended so that the competition-based methodology in assigning radio frequencies is promulgated by regulations made under the SLT Act with Parliamentary oversight.

9) Clause 20 [proposed Section 22ADl is irrational and inconsistent with Article 12(1) and can only be passed with the special majority required under paragraph (2) of Article 84.

10) The learned ASG informed that a Committee Stage Amendment will be moved to amend proposed Section 22AC (2) whereby an offence is created by such Committee Stage Amendment. The Proposed Committee Stage Amendment to Clause 20 introducing Section 22AC (2) is inconsistent with Article 121 (1) read with Articles 3 and 4 of the Constitution for the reasons adumbrated above and earlier under “Committee Stage Amendments” and can only be passed with the special majority required under paragraph (2) of Article 84 and approved by the People at a Referendum by virtue of Article 83.

11) ln view of our determinations set out in 9 and 10 above, proposed Section 22AD becomes redundant.

12) Clause 33 of the Bill [proposed Section 59A] is vague and is inconsistent with Article L2(1) of the Constitution and could be validly passed only with the special majority provided for in Article 8aQ) of the Constitution.

The inconsistency will cease if proposed Section 59A is deleted. 1,1. 12. Page 64 of 65 1″3.

13) Clause 35 of the Bill (proposed Section 68(14)(b)and Section 68(14)(c)] is vague and overbroad and inconsistent with Article 12(1) of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84.

This inconsistency will cease if Clause 35 is amended by deleting the proposed Section 68(1A)(b) and Section 68(1A)(c).

14) Subject to above, none of the other provisions in the Bill are inconsistent with any provision in the Constitution. Other than the Committee Stage Amendments which are specifically referred to in this Determination, we have not considered the constitutionality of any other Committee Stage Amendment.