Columns

The announcement by Sri Lanka’s Minister of Foreign Affairs late last week, that a new law to replace the Prevention of Terrorism Act (PTA) would be published in the gazette ‘by the beginning of September 2025,’ is akin to a bolt of lightning from sunny blue skies.

Dazzled by a ‘false dawn’?

The month of September is notable, among other things, for the trek to Geneva where the Government periodically defends itself against probing questions on the State’s human rights record stemming from various resolutions on the status of ‘truth, reconciliation and accountability’ that have become trite catchwords. This time around, that uncomfortable trek to expostulate, explain and elucidate the Government’s stand comes in the wake of a ‘democratic dawn’ for the country as promised by the National Peoples’ Power (NPP.

Relevantly, this is in the context of the UN High Commissioner submitting an update to the Human Rights Council that was, much like the curate’s egg, soft in parts and hard in other parts if I am to twist that popular idiom. The update observed that the combination of the Online Safety Act (OSA) and the PTA comprises a ‘powerfully constricting legal framework’ for Sri Lankan citizens. That led to an ‘undue restriction of the right to freedom of opinion and expression,’ the High Commissioner said.

He added that, ‘the new Government has continued to use the Act to arrest and detain individuals.’ Meanwhile, pointing out that a committee had been appointed to repeal the PTA and to recommend a new counter-terror law, it was remarked that in May 2025, the Ministry of Justice had issued a ‘very short two week time period of public notice for legislation of such importance, inviting comments and submissions from the public.’

Why this headlong rush to enact
a replacement for the PTA?

The September deadline to gazette new legislation was noted. The Foreign Affairs Minister meanwhile emphasised that the Government was awaiting the ‘final committee report’ to move ahead. Certainly the National Peoples’ Party (NPP) Government’s enthusiasm to repeal the PTA must be unreservedly welcomed. Its failure on this key campaign promise had been robustly critiqued in these spaces along with current state practices to repress and intimidate civilians under the PTA.

Even so, the problem lies not in a September deadline to repeal the PTA. or the ‘very short’ time period of two weeks mandated for public submissions to the drafting committee. That period, it is understood, has anyway been flexibly applied by the committee.  Rather, what gives to rise to deep anxiety is the possible enactment of a new counter terror law in little more than a few weeks.

In fact, what the United Nations High Commissioner should have emphasised is that there is absolutely no need to ‘rush’ this process of ‘enactment’ (as differentiated from ‘drafting’) without allowing time for public scrutiny of what exactly is proposed. And so we return to the earlier question, from whence comes the NPP’s urgency in this regard?

The anti-dissent flavor of the ‘Wickremesinghe Bills’

Even as the Foreign Affairs Minister claimed that there was no ‘external pressure’, the famous line, ‘methinks the gentleman doth protest too much’ (to borrow somewhat unforgivably from the Bard), comes to mind. In other words, there is a worrying Catch-22 situation in play. First the Government is obviously not inclined to take on board those irrepressible optimists who protest that Sri Lanka does not need a counter-terror law at all.

That stand is understandable given that scarcely six years have lapsed since the 2019 homegrown jihadist attacks on churches and hotels in this country on Easter Sunday 2019. Second, the PTA is being used since there is no alternative, as the NPP has repeatedly said. But that too becomes problematic as the Government has assured internationally to the contrary. Consequentially and unfortunately so, the ‘repeal and replace’ the PTA has become a single continuing exercise.

It is not an acceptable position to take that public scrutiny will be enabled after the Bill is published in the gazette. A very short time period runs from that point to being placed on the Order Paper of Parliament and then enacted with some Bills not being challenged in the Supreme Court due to this rush. Assuring that the draft will reflect recommendations of the Supreme Court on earlier drafts of counter terror laws is also insufficient.

The ‘bad’ outweighed the ‘good’

These include (presumably) the Anti-Terrorism Bill (2023) and the Counter-Terror draft law (2018). Yet these draft laws were stamped with the highly autocratic and anti-dissent mentality of the Ranil Wickremesinghe led Government under whose regime, the Bills were proposed. As we may recall, the CTA draft was prevented from being enacted due to public agitation at the eleventh hour.

The ATB escaped similarly intensive scrutiny as the CTA but that too was critiqued, including in these column spaces, as not enhancing national security. Rather, it was risking the contrary by incorporating vague definitions that did not draw a legally firm line between acts penalised under the ordinary criminal law and ‘acts of terror.’ To be clear, this is a policy line that the Government must take, not cower under the explanation that the Supreme Court has green-lighted one clause or the other.

The Court’s function is limited in scrutinising Bills for their constitutionality. True, the CTA Bill and the ATB had a few positive aspects. One was a welcome discarding of the PTA’s permitting the admission of confessions by suspects to police officers of a particular seniority. That had been coupled with the burden being put on the suspect to prove that the confession was not voluntary; effectively an impossible burden to discharge.

Potential to ‘kill’ and not
just to ‘chill’ dissent

In sum, this meant that suspects could be kept indefinitely in detention for decades while various courts disagreed whether the confession was ‘voluntary’ or not. That point is not merely theoretical; years of comprehensive review of PTA detainees, some who are freed on being found to be innocent after years of unjustified detention, illustrate that problem very vividly.

Then again, the new drafts improved safeguards against abuse to detainees and limited the periods of police custody. But these improvements paled into nothingness when measured against hugely excessive framing of the primary definition of the ‘offence of terrorism.’

It was similarly so in regard to a litany of ‘terrorism associated acts’ and ‘encouragement of terrorism’ that has the potential to ‘kill’ and not merely ‘chill’ dissent. That would have impacted with far worse intent than the obnoxious PTA on freedoms of speech and expression regardless of ‘good faith’ protections.

Open Sesame to State terror

In addition, the ATB would have permitted the Secretary to the Ministry of Defence to detain a suspect until the conclusion of the trial. The only condition is if he is ‘of the opinion that it is necessary or expedient to do so in the interests of national security and public order’ (Clause 72).

That detention can be in the custody of ‘any authority’ which is open sesame to terrorise and intimidate critics. It is again no answer to say that judicial oversight of that detention is a sufficient safeguard to prevent abuse. Is this clause retained in the forthcoming Bill? All in all, the CTA and the ATB should not be blueprints for an NPP counter-terror law.

We devoutly hope that the committee tasked with drafting a replacement law has understood this. The International Monetary Fund (IMF)’s prescription for Sri Lanka’s economic ills, adopted by the Wickremesinghe regime has been unfalteringly followed by the administration of President Anura Kumara Dissanayake.

Is the NPP destined to follow suit in regard to Sri Lanka’s ‘replacement’ PTA as well?