Internet in the Constitution?

Posted on February 9, 2016 / 4 Comments

Consultations are underway for devising a new Constitution for Sri Lanka. One of the contributions to the discussion, published under the heading of “A new Constitution: What’s in it for young people?” had this section:

According to the latest statistics there are over 2.8 million internet users in Sri Lanka. The Internet should not belong to only 2.8 million Sri Lankans. It should be seen as a necessity for development, a prerequisite to be an engaged citizen in a democracy and a tool that makes larger things possible.

We believe that the constitution should recognise the responsibility of the state to ensure that all people, regardless of where they live or how old they are, what their income is, or what they languages they can or cannot speak, are able to access technology and the internet in particular. India has begun a nationwide program to digitise the country and it’s important that Sri Lanka follows suit.

The writer appears to want the Constitution to ensure a right to “access technology and the internet in particular.”

What does this actually mean? That the Internet be provided free of charge? How many Gbps? Does this include free terminal equipment? Should this right be enforceable through the courts, as fundamental rights usually are?

Where would the money come from? Right now the government can barely pay its bills and has sought IMF intervention.

So perhaps he’s not asking for free (as in beer) Internet? But what is meant by access, is it enough if there is a signal from one operator reaching every house?

But I am puzzled by this idea of specifying access to specific technologies as fundamental rights. I’ve written against it many times, but I do not think I can do better than Vint Cerf, one of the inventors of the Internet:

. . . technology is an enabler of rights, not a right itself. There is a high bar for something to be considered a human right. Loosely put, it must be among the things we as humans need in order to lead healthy, meaningful lives, like freedom from torture or freedom of conscience. It is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things. For example, at one time if you didn’t have a horse it was hard to make a living. But the important right in that case was the right to make a living, not the right to a horse. Today, if I were granted a right to have a horse, I’m not sure where I would put it.

The best way to characterize human rights is to identify the outcomes that we are trying to ensure. These include critical freedoms like freedom of speech and freedom of access to information — and those are not necessarily bound to any particular technology at any particular time. Indeed, even the United Nations report, which was widely hailed as declaring Internet access a human right, acknowledged that the Internet was valuable as a means to an end, not as an end in itself.

So please, let’s focus on the important elements of the Constitution: devolution of power, how we elect and hold accountable our representatives, how we ensure that our courts dispense impartial justice, and how we get ourselves an efficient public service.

A Constitution is not a wish list of whatever comes to mind. I do not think I can say it better than the writer himself: “The Sri Lankan state has often had a very paternalistic and welfarist attitude towards young people. Young people are often viewed as passive recipients of benefits and services provided to them by the state as opposed to vehicles of change that could drive their communities along progress and development.”

Do not reinforce paternalistic attitudes by asking for unenforceable rights to evanescent technologies or for more bureaucratic organizations or give aways. Take a seat at the table and contribute ideas on the big stuff that should be the focus of a Constitution.

4 Comments

senel w
February 10, 2016, 12:06 am
Thanks for taking your time to read my write-up and write this detailed response. Appreciate it!

I didn’t go into detail about how I believe a right to access technology should be outlined in the constitution (like I didn’t with the rest of the proposals). If I find the time, what I might do is to work on specific write-ups on some of them (including this one, perhaps) However, since you have raised it- no I don’t think access to technology, should be a fundamental right (violation of which as you pointed out could be challenged in a court of law). However, I still see value in a state recognizing, in principle, the need to ensure equal access to technology (perhaps similar to the ‘directive principles of state policy’ in the current constitution – such as health /shelter.
While the directive principles as they are, are not enforceable, it could still mould future policy and shape state initiatives (we can disagree on this).

As you know, this discussion about the right to access technology/ right to broadband, that states shouldn’t restrict access to internet/technology has happened both in the developed and the developing world for a while now. Thanks for the link to the Vin Cerf article- you should also be aware that there’s a critique to Cerf’s thinking (For eg the Supreme Court of Costa Rica which issued a ruling that read .’Without fear of equivocation, it can be said that these technologies [information technology and communication] have impacted the way humans communicate, facilitating the connection between people and institutions worldwide and eliminating barriers of space and time. At this time, access to these technologies becomes a basic tool to facilitate the exercise of fundamental rights and democratic participation (e-democracy) and citizen control, education, freedom of thought and expression, access to information and public services online, the right to communicate with government electronically and administrative transparency, among others. This includes the fundamental right of access to these technologies, in particular, the right of access to the Internet or World Wide Web.’)

About the need to focus on the ‘big stuff’. Thanks for your appeal. I’ve already made both a written and an oral submission to the Public Representations Committee and in both I’ve touched on some of the ‘big stuff’ that you suggested.

But tbh whether one chooses to advocate on the reform of the executive, electoral reform, devolution of power or animal rights or internet access in one’s constitution, should be up to one’s self.
It’s one thing to point out that priorities could be different but to ask one to ‘please take a seat at the table’ (when I have, in more ways than one) and to dictate a set of issues that need to be focused, mirrors the greyhaired paternalism that I spoke about.

Thanks again for your response. Always appreciate different ways of thinking and diverging views but despise the condescension.
Rohan Samarajiva
February 10, 2016, 1:15 pm
Thanks for the response. Apologies for unintended condescension. I was focusing on reinforcement of the paternalism of the state, but sadly appear to have succumbed to that of the grey-haired.

Sent substantive response to FT. Hopefully will be carried this week.
Senel w
February 10, 2016, 4:27 pm
Thank you! Looking forward to reading the response.
Rohan Samarajiva
February 12, 2016, 10:09 am
Directive principles were first introduced to Sri Lanka through the feudal-socialist Constitution of 1972. This Constitution centralised power in a unicameral legislature and the Cabinet selected from it. It weakened all check and balances. It emasculated the most important part of the State, the civil or administrative service. It specified fundamental rights, but also specified that they were not justiciable. It is from this disreputable source that directive principles comes from.

There is little value in including unenforceable principles in the fundamental law of the land. Better keep those for election manifestos.

There is a test for the value of directive principles. Take the wonderful sounding directive principles of the 1972 Constitution and see if they were of any help in dealing with the famine conditions that existed during the 1973-74 period, including documented cases of Kwashiorkor and Marasmus in the city of Colombo.

– See more at: http://www.ft.lk/article/524687/Parsimony-in-Constitution-making#sthash.fRALGbuT.dpuf