• The terrorism law is being repealed, but its powers are spread across 3 new bills

For almost half a century, the Prevention of Terrorism Act (PTA) of 1979 has been a byword for detention without charge, forced confessions, and the targeting of minorities. It embodied ethnicised State repression. 

This Government promised to repeal it, and on paper it is keeping that promise. The Protection of the State from Terrorism Bill (PSTB), gazetted on 22 September and presented to Parliament on 6 October, would repeal the 1979 act.

However, repealing the PTA does not mean ending the repression it made possible. Read alongside two other bills gazetted in the same fortnight, the Prevention of Foreign Terrorist Fighters Bill (PFTFB) and the Prevention of Organised Crimes Bill (POCB), the PSTB looks less like an ending than the first chapter of a new legal regime. 

One head of the hydra is being cut off; three are growing back. In some places, they bite harder than the original.

Good cop, bad cop

The two bills play a familiar routine. The PSTB is the good cop, presented to Parliament, diplomats, and the United Nations (UN) as proof of reform. The POCB is the bad cop, quietly holding on to the powers the PSTB gives up. 

The PSTB now looks much more refined than the PTA, and even the PSTB’s previous drafts. One of its best features is that it drops the PTA’s rule that making confessions to the Police is admissible as evidence in courts. Statements to a magistrate count only if a doctor has examined the suspect before and after, and the session is recorded. Many PTA convictions rested on confessions that the accused said were forced. This is a real gain in the new reform.

The POCB takes it back. Its Sections 46 and 47 mute the Evidence Ordinance’s protections and make a signed statement to a Police officer of assistant superintendent rank or above admissible, with the burden on the accused to prove it was coerced. 

The PTA’s rule allowing statements of absent witnesses (including deceased), never cross-examined, returns in Section 48. The power to intercept communications and force the unlocking of devices, a power which is not in the PTA but was introduced by the earlier PSTB draft, has now been dropped from the draft PSTB following objections from UN experts. 

Again, these powers reappear in Section 45 of the POCB. Section 44(4) goes further, allowing call and location data to be obtained without any court order. Mandatory minimum sentences, absent from the PSTB, return too. Repressive powers hardly die; when cut off in one law, they grow back in another.

The PFTFB goes further still. Its Section 5 borrows the PTA’s own rules on investigation, arrest, and bail, and so the law being repealed becomes the procedure for a new one. If the PFTFB is passed before the PTA is replaced, there will be doubt as to what law should govern the investigations under this law. We have seen how the State is hardly ready to let go of its powers for due process or fundamental freedoms.   

Casting the net wide

The PSTB’s definition of terrorism is narrower than anything in the PTA, but it still keeps some spectres of the PTA such as “unduly compelling” a government, “substantial economic loss,” and interference with computer systems. 

It adds new offences for handling “confidential information” about Police and military activity and for possessing “terrorist publications”. It lets magistrates, and in urgent cases the Police, ban gatherings, and lets the president proscribe organisations indefinitely without ever consulting the Parliament.

The POCB casts a far wider net. A “serious crime” is any offence that has a punishment of a maximum of four years or more, committed by a “structured group” of just three people seeking any “financial or other material benefit,” including services. 

A schedule adds offences from 16 other laws regardless of penalty, among them obstructing a public servant and using criminal force to deter one, the standard charges at protests, as well as possession of cannabis under one kilogramme. Membership of a ‘group’ can be inferred from dress, tattoos, hand signs, or “virtual meetings”. 

Edging out the judges 

The most worrying shift is the shrinking role of the courts. Under both bills, the first detention order is signed by a ministry secretary, not a judge. When it is produced, the magistrate “shall” give effect to it, without any power to ask whether it is lawful or necessary. 

Under the POCB, the secretary to the ministry responsible for the Police can order detention for up to a year at a Police station with no review committee at all. A suspect may wait 72 hours, and a further 24, before seeing a magistrate. Remand is mandatory, bail lies only with the High Court, and ordinary judicial checks on remand in the Code of Criminal Procedure are switched off. The magistrate is reduced to a post office, stamping orders the Executive has already made.

In several respects, the new regime has less protections for civil liberties and human rights than the law it replaces. The PTA itself gave the armed forces no powers of arrest; the PSTB makes them permanent. Power to proscribe organisations, which was vested in Parliament, has been moved to a simple presidential order. Publication offences that were repealed in 2022 have returned.

The POCB criminalises reporting on court proceedings without permission, punishes “tipping off” with up to 10 years with no exemption for journalists, abolishes any time limit on prosecution, and requires people to give information “notwithstanding any obligation of secrecy”. This undermines the professional and ethical duties of journalists and medical officers, eroding the protection of sources and the confidentiality of patients on which public trust in both professions depends.

These increasingly stricter laws show a pattern that recent legal reforms manifest. For instance, bail is steadily being taken away from magistrates. Under the Drugs Ordinance, as amended in 2022, bail for all but small quantities lies only with the higher courts, and even that under special circumstances. 

Amendments to the Anti-Corruption Act proposed this year attempted to make its offences non-bailable, with bail available only from the High Court in exceptional circumstances. The Online Safety Act already criminalises loosely defined speech. Each measure is defended on its own terms. Together they make pre-trial detention the default rather than the exception.

Democratising repression 

In practice, the PTA was a law used against minorities: against Tamils for decades, and against Muslims after the 2019 Easter Sunday attacks, with exceptional instances where Sinhala people had been targeted by it. 

The POCB, which promises to be strong-fisted against organised crimes, is neutral on its face and can be used with more legitimacy against all ethno-religious communities. The law’s identified trigger, such as being a group of three, any ‘benefit,’ dress, and association, can allow treating urban low-income youth, protest groups, and informal or street vendors easily as criminal syndicates. 

Arbitrary law enforcement is not uncommon in everyday experiences of the average Sri Lankan. General Sections 54A and 54B of the Drugs Ordinance have generated so many stories of abuse of law. Those same sections are listed in the POCB’s schedule too.

According to the Department of Prisons, Sri Lanka’s prisons held 41,257 people as of July this year in spaces built for 10,395. Of these, 30,445 – nearly three in four – had not been convicted of a crime. 

Laws that make bail harder and detention longer can only add to that number. When a person spends a year in executive detention and another on remand before being charged, the process becomes the punishment. A court that cannot order release is not a check on power. It is a sign of a judiciary being steadily weakened.

Read alone, the PSTB looks like reform. Read alongside the POCB and the PFTFB, it is one part of a regime that moves exceptional powers from a discredited law into new ones, widens who they can reach, and narrows the role of the courts. 

The sequencing of these bills compounds the issue. The PSTB, with its consultations and its engagement with UN experts, drew the attention of critics and diplomats. The POCB was gazetted on the very day the PSTB reached Parliament and has so far escaped international scrutiny. 

Whether by design or not, the reform being watched is not the one that matters most. The PTA is being repealed, but the statist and repressive logic behind it thrives through three potential laws.  

(The writer is a policy analyst and Co-Founder of Muragala | Centre for Progressive Politics and Policy [CPPP] and can be contacted at h.dassanayake@muragala.lk)

(The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official position of this publication)