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at first blush, the draft law to replace Sri Lanka’s odious Prevention of Terrorism Act (PTA) presented by the National Peoples’ Party (NPP) Government released by the Minister of Justice last week reflects the broad conceptual brushstrokes of highly problematic public security drafts proposed by the Ranil Wickremesinghe Government (2018, 2023), albeit with some noticeable differences.

Releasing for public scrutiny is welcome

The worrying question is whether those differences will be enough to blunt the overall adverse impact of the draft law if it is operationalised as is? An answer to that query must await a detailed critique of the draft later in these column spaces. At this point, our purpose is merely to outline concerns where the definition of the offence of terrorism is concerned. Other clauses of the draft raising justifiable apprehensions will be kept for later.

Certainly, it is creditable that the 2025 draft was released to enable critique and feedback with a reasonable timeframe given for that purpose. That is in contrast to previous instances when national security law drafts were confined to a select few, arousing public outrage when their objectionable contents were ‘leaked.’ But while giving the Ministry of Justice its due in that regard, the invitation for public submissions must not be cosmetic.

In other words, the Government must show its bona fides by being open to revise the draft before it is published in the Gazette and presented in Parliament. We will see if that intent is manifested. Where the substance is concerned, the Long Title of the 2025 Bill is exactly the same as the Wickremesinghe inspired Anti-Terrorism Bill (ATB, 2023). Its short title is inauspicious with the 2025 draft being clumsily referred to as the ‘Protection of the State from Terrorism Act’ (PSTA).

A positive change in the preamble

However it must be fairly said that the preamble of the draft PSTA does seek to balance the interest of the ‘protection of public security’ with the principles of the Rule of Law and ‘full respect for fundamental rights and freedoms.  This reflects the guidance given by the Supreme Court in reviewing the 2023 ATB to balance national security concerns with human rights while ‘embodying inter alia, international standards and best practices across the globe’ (SC Spl Determination, 2024).

Accordingly, unlike the 2023 ATB and the 2018 draft Counter Terror Act (CTA), the draft PSTA recognises ‘rights to liberty, security of the person, fair trial and freedom from arbitrary detention, as guaranteed under the international human rights instruments’ in applying its clauses. That difference is important given the crucial role that the preamble plays in later interpretations of statutory provisions.

Substantively, it is notable that sub-clause 3 (1) of the draft PSTA defines the offence of terrorism ‘as any act which causes a consequence,’ (the term ‘consequence’ is later explained in sub-clause 2), which is intentionally or knowingly committed by ‘any person’ for the ‘purpose’ of achieving four objectives. While three of these four objectives are familiar which concern we will return to, the PSTA has added a fourth element of ‘provoking a state of terror.’

Distinguishing ‘terrorist acts’

The insertion of ‘for the purpose of…’ instead of ‘with the intent of…’ in defining the ‘mens rea’ component of the offence is puzzling to say the least.  Some may contend that the term ‘purpose’ goes to the motivation behind a particular act but the question arises as to why the generally accepted use of ‘intent’ in these contexts has been deviated from. A broader and more generalised use of the term ‘purpose’ raises a legitimate fear that this significantly lowers the bar.

The core issue here is to determine whether a person had a ‘terrorist’ intent in performing any of the acts that would lead to the prohibited ‘consequence’ in sub-clause 3 (2). This goes to the root of the definition of the offence and is not merely a quarrel over legal terminology. The primary problem in all of Sri Lanka’s counter-terror laws and drafts, to put the matter bluntly, is the failure to draw a firm line between ordinary criminal offences and those qualifying as ‘terrorist’ offences.

That failure is particularly reflected in the PTA as well as in successive emergency regulations, confusing the very purpose of intelligence operations. In turn, this has resulted in hundreds of civilians being locked up and the key being thrown away whereas the safeguards of the ordinary law against arbitrary arrest and detention should have applied. Who among these hundreds would have had the means and the reach to retain lawyers to argue constitutional rights violations?

The law in theory and in practice

And even where such cases have been argued and excellent principles of constitutional protections handed down by the Court, to what extent have they been respected? Since the 1970’s PTA, cogently reasoned jurisprudence of the Supreme Court of Sri Lanka protecting individual rights has emerged even when conflict raged from the South to the North. But what practical impact has this had on state practice and policy?

Where the draft PSTA is concerned, apart from prohibiting the engaging of an act with the ‘purpose’ of ‘provoking a state of terror,’ the other limb of that definition includes the familiar language of ‘intimidating the public or any section of the public.’ The remaining limbs are also familiar. They relate to ‘compelling the Government of Sri Lanka, or any other Government, or an international organisation, to do or to abstain from doing any act.’

So too is the prohibition of ‘propagating war, or violating territorial integrity or infringing national sovereignty inter alia…’  Unimpeachable, one might say. But then we come to the ‘consequences’ specified in clause 3 (2) which must be read in conjunction with the ‘purpose’ specified in clause 3(1). The long list of ‘consequences’ faithfully replicates the 2023 ATB. Causing ‘serious damage to any place of public use, any public property, any public or private transportation system or any infrastructure facility or environment’ (clause 3 (2)(e) is one example.

A ‘copy and paste’ exercise

Another example is clause 3 (2)(g) defining ‘causing serious damage to the health and safety of the public or a section thereof’ as a ‘terrorist act.’ Writing on the dangers of this clause, I observed that ‘legitimate trade union action, can be construed as acts that cause ‘serious damage’ to public health and safety with the aim of compelling the Government to ‘do or abstain from doing’ any act,’ (see ‘Old’ Wine in ‘New’ Bottles? – Sri Lanka’s pesky Anti-Terrorism Bill has surfaced again’ Focus on Rights, January 14, 2024).

Further, it was remarked that the ATB shows excessive ‘overlap between behaviour that may come within ‘ordinary’ penal prohibitions and ‘terrorist’ acts’ and targeting the media shows that the ATB is ‘being put forward for collateral purposes.’ These concerns remain. There is little doubt that the 2025 PSTA is a typical ‘copy and paste’ of the 2023 ATB even to the extent of the same numbering of clause 3 (2).

One difference between then and now is that the PSTA provides for a ‘carve out’ exemption to these clauses, stating that ‘any protest, advocacy or dissent or engages in any strike, lockout or other industrial action, is not by itself a sufficient basis to be brought within the reach of clause 3 (2). This was in line with the Supreme Court pointing to the need for such a ‘carve out’ in response to the ATB.

The ‘mountain’ and the ‘mouse’

But is that sufficient? After months of labouring, is this the Wickremesinghe replica of the ATB ‘mouse’ that the mountain of the NPP Government produces? Lest we forget, this was the same ATB that leading members of the Government protested against when in the Opposition.

Where is the ‘brave new world’ forsooth?