By Jagath Liyanarachchi and Kavinu Weerakkody
For decades, Sri Lanka has debated the human rights violations and restrictions on individual freedom tied to the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA). The repeal of the PTA was a key election pledge of the current government led by the National People’s Power (NPP), whose policy manifesto, “Thriving Nation, Beautiful Life,” explicitly promised, on page 129, the abolition of all oppressive legislation, including the PTA.
In this context, the government is moving to repeal the PTA and replace it with new legislation, the “Protection of the State from Terrorism Act” (PSTA), which was presented to Parliament on 6th October. However, concerns have been raised that the PSTA retains several problematic elements of the PTA, including vague definitions, restrictions on human rights, and provisions that facilitate militarization.
This new legislation could also hurt Sri Lanka’s economy by threatening the renewal of the European Union’s Generalised Scheme of Preferences Plus (GSP+) trade benefits. Because these trade perks depend on protecting human rights, keeping flawed anti-terror rules could invite EU scrutiny and damage confidence in the country’s reforms.
Following the Speaker’s announcement in Parliament regarding the gazetting of the Bill, more than 35 petitioners, including citizens and civil organizations such as the People’s Struggle Alliance (PSA), Justice for All, Minority Professional Hub, and Human Rights Law Chambers, have filed petitions challenging the Bill. Several key powers that are considered problematic in the PSTA are listed below.
The Vague Definition of “Terrorism”
Section 3 of the Bill defines the offense of terrorism. Critics argue that the act element in Section 3 is broad enough to potentially infringe upon fundamental rights enshrined in Chapter 03 of the Sri Lankan Constitution, such as freedom of speech, freedom of peaceful assembly, freedom of association, and the
freedom to join trade unions. Under Section 3(1)(b), even actions intended to compel a government or an international organization to carry out a specific act could be classified as terrorist acts. For instance, a trade union protest held to demand workers’ rights could potentially be categorized as a terrorist act under such an expansive definition. This could heavily affect the fundamental rights enshrined in Chapter 03 of the Sri Lankan Constitution, such as freedom of speech, freedom of peaceful assembly, freedom of association,6 and the freedom to join trade unions.
Because of this broad wording, it could also become possible to file terrorism charges even for ordinary offenses already punishable under the Penal Code, including death, grievous hurt, serious damage to public places and destruction of cultural property. Prevention of Hostage Taking Act No.41 of 2000 is already in force for Hostage Taking, which is mentioned in Section 3(2)(c) of the newly drafted PSTA. Therefore, the definition of “terrorism” should be narrowed, specifically by removing the environmental and public property vandalism concerns and aligning it more closely with the UN model definitions of terrorism.
Silence could be an Offense: Mandatory Reporting Obligation
Section 15 of the Bill stipulates that it is an offense for a person to fail to inform the police when they have reason to believe that someone is preparing, attempting, or conspiring to commit an offense under the Act. Critics argue that due to the broad scope of terrorism, citizens, journalists, and legal professionals
face acute professional and ethical dilemmas regarding confidential information. Furthermore, it would require people to notify the police even where they do not have certain knowledge that an offense has been committed but merely have reasons to believe that one might be, under Section 15(1)(a). Admins of Facebook or WhatsApp groups who do not report suspicious posts by members of the police could also face imprisonment. Section 15(2) lists legally protected information and professional secrecy as examples of a reasonable excuse, but this would operate as a defense to be proved after a person has been charged, rather than as an exemption from the duty itself.
Armed Forces and Police Powers
Under Sections 20 and 24 of the PSTA, the authority to arrest civilians is extended to Armed Forces and Coast Guard personnel without a warrant. Section 24(2) allows 24 hours for military personnel to hand over arrested suspects to the nearest police station. Critics express concern regarding the application of civilian policing procedures. Granting such authority to military and Coast Guard personnel, who are not obliged to follow civilian police procedures and are not usually involved in civil affairs, could carry the risk that the human rights of arrested suspects are violated.
Under the currently operative PTA, every arrest must be carried out by a police officer not below the rank of Sub-Inspector (SI) on the written order of a Senior Superintendent of Police (SSP). By contrast, Section 20 of the Bill does not appear to set a comparable rank requirement, and the Bill would supersede such existing laws, which could restrict the rights of citizens.
Detention Orders: Restricting personal freedom without a Court Order
Any custody or restriction on an individual’s liberty would ordinarily be processed through the country’s judicial system. Under Sections 26(3)(a) and 27 of the proposed PSTA, the Secretary to the Ministry of Defense can issue a detention order against a person suspected of terrorism on a written application from the police, without prior judicial approval. Such orders could run for up to 02 months at a time and be extended to a total of 01 year, which could further add to these concerns. Section 28 requests High Court approval for detentions beyond 02 months only, while the initial order would still be issued by an executive official rather than the judiciary of Sri Lanka.
Government Analyst and Evidence
Section 49 of the Bill would allow the Police to submit items connected to an offense directly to the Government Analyst or another local expert, without a court order. A Magistrate’s approval would be needed only for submission to a foreign expert. This could depart from established procedural law in Sri Lanka and could create the potential for evidence to be fabricated. Therefore, the submission of such items related to a criminal investigation to the Government Analyst or any other expert should be carried out solely based on a court order.
Secretary of the Defense Ministry’s Role in Prohibited Places
Under Section 61 of the PSTA, when the Secretary to the Ministry of Defense is satisfied that a place is used for an offense or likely to be used, access to that place could be restricted for a period of 72 hours. This once again raises the question of whether a state official should have the authority to restrict civilians’ liberty in the country. This power could also affect access to public or private locations, and raise concerns about freedom of movement, access to information, and the ability of journalists to document events as well. So, the criteria for declaring a place prohibited, the reasons for doing so, and review mechanisms should be clear and proportionate.
However, PSTA also seeks to address certain shortcomings in the current legal framework. Section 44(3) bars self-incriminating affidavits, Section 26 requires suspects to appear before a Magistrate within 48 hours, Section 25 mandates notifying next of kin and the Human Rights Commission within 24 hours, and Section 30 establishes an Independent Review Committee. But this newly drafted PSTA is bringing back many of the previous elements that made the country’s primary anti-terrorism law, PTA, controversial for decades. Legal experts argue that the terrorism definition should be narrowly tailored and the powers granted to the armed forces over civilians should be limited. They also argue that authority of state officials to issue detention orders and restrict civil liberties should be removed and so.
Enacting this legislation without amending such problematic provisions would serve no purpose other than to further violate the fundamental rights of Sri Lankan citizens, all under the guise of preventing terrorism. And It’s more regrettable to see that a government composed of public representatives who once opposed repressive legislative proposals such as the Anti-Terrorism Bill (ATA), the Counter Terrorism Bill (CTA), and the Online Safety Act (OSA) is now moving to enact the same legislation that could be similarly problematic and repressive.
Jagath Liyanarachchi is an Attorney-at-Law and a former Commissioner of Sri Lanka’s Right to Information Commission who can be reached at jagathliyanarachchi@gmail.com.
Kavinu Weerakkody is a Researcher at Factum and holds a Bachelor of Laws (LLB) from the University of Jaffna.
Factum is an Asia Pacific-focused think tank/consultancy on Diplomacy, Tech-Plomacy, Digital and Energy Futures accessible via www.factum.lk.
The views expressed here are the author’s own and do not necessarily reflect the organization’s.
