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President Anura Kumara Dissaayake’s determination to ‘repeal and replace’ Sri Lanka’s Prevention of Terrorism Act (PTA) with a law that balances security concerns and civil liberties for ‘rights focused governance’ was explained in great detail when interviewed by Newsweek earlier this month.

Legitimate alarm over the PSTA

But that sunny presidential intent is grossly contradicted by his Janatha Vimukthi Peramuna (JVP) led National People’s Power (NPP) Government’s draft ‘Protection of the State against Terrorism Act’ (PSTA). In fact, the contradiction could not be starker despite a superficial attempt to ‘balance’ ‘civil liberties’ including in a revised preamble. Does the President remain in a blissfully unconscious state of what the draft PSTA entails?

Or are these presidential assurances typical political hyperbole beloved of Sri Lankan politicians? Either way, there is much to be alarmed by the potential for abuse which becomes clearer each time that the contents of the PSTA are dissected. A ridiculously worded short title states that its objective is to protect ‘the State’ from terrorism. Compare this, for example with South Africa’s ‘Protection of Constitutional Democracy against Terrorist and Related Activities’ Act, 2004 (as amended in 2022).

Essentially, the purpose of an anti-terror law is to protect the state of democracy and the citizens of that country from terrorism. Is Sri Lanka this deficient of legal capacity that the short title of a Bill cannot be got right? Leaving that aside, it was observed in these column spaces last week that the Government was faithfully following in the footsteps of the Ranil Wickremesinghe inspired draft Counter Terror Act (CTA, 2018) and Anti-Terrorism Bill (ATB, 2023).

Range of loosely defined offences

But on a meticulous reading of its contents, the question arises if the draft PSTA is worse than its previous avatars? Certain safeguards seem to have mysteriously disappeared to which concern I will return to later. This caution must be reiterated at the outset; clumsily drafted anti-terror laws only hamper and do not help legitimate national security surveillance. This danger arises particularly in regard to a range of offences in the PSTA quite apart from problems with the primary offence of terrorism.

What Clause 9 of the ATB had listed as ‘acts associated with terrorism,’ are brought over to Clause 8 (2) of the draft PSTA in line with the undertaking given by the Attorney General to the Supreme Court when the ATB was challenged. Thus, the PSTA makes it an offence for any person ‘knowingly or having reason to believe’ that any ‘confidential information’ will be used to commit, inter alia, an offence, to gather such information with intent to supply the information to ‘a person.’

Upon conviction, the penalty is a jail term of up to fifteen years, a fine not exceeding rupees fifteen million or to both punishments. Troublingly, the PSTA replicates the ATB in loosely defining ‘confidential information’ as inter alia, ‘any information, the dissemination of which is ‘likely to have an adverse impact on the national security and defence of Sri Lanka.’ What precisely is an ‘adverse effect’ is anybody’s guess.

Chilling impact on the media

It is a pity that this lacuna did not receive the considered attention of the Court. ‘Confidential information’ also covers ‘any information relating to the police or the armed forces, on the conduct of any official activity…’ which is unacceptably wide.  These definitions passed the stamp of the Court which reasoned that gathering ‘security sensitive information’ for the purpose of committing ‘a terrorist offence’ can be criminalised.

But the point is that, when the very offence itself is vaguely framed, prohibiting the ‘gathering of information’ thereof has potential for abuse. Meanwhile, it is concerning that a good faith defence which the ATB made available for the printed and electronic media and for academic publications appears to have been omitted from Clause 8 of the PSTA. Among other aspects, this is what makes one wonder if this last draft is the worst of them all.

In fact, the NPP’s PSTA specifies a good faith defence only for the offences of ‘encouragement of terrorism’ and ‘terrorist publications’ contained respectively in Clauses 9 and 10.  Regardless, those offences are also distinctly problematic. ‘Encouragement of terrorism’ criminalises the publication or the speaking of any statement that ‘directly or indirectly’ encourages the public to commit, inter alia, any ‘terrorist offence’. Recklessness thereto is an element of the offence.

South Africa’s narrow framing of offences

Further, the PSTA has inexplicably discarded Clause 5(5) of the ATB which afforded a ‘no consent’ defence to an accused re any impugned ‘statement’ in regard to trials under this category before the High Court. Above all, the ATB’s criminalizing a broadly defined species of ‘terrorist publications’ through Clause 11 is repeated in the PSTA, Clause 10. That offence was entirely absent in the 2018 CTA, to give that draft due credit though it was excoriated in other respects at the time.

‘Reckless’ publications are moreover criminalized. Why the lesser standard of ‘recklessness’ here? Generalised language is used, such as ‘capable of being understood’, ‘likely to be understood’ etc. The cumulative impact of these prohibitions is chilling. South Africa’s anti-terror law frames the offence much more strictly. An amendment act in 2002 requires a court order for the removal of, or to make inaccessible, publications with unlawful terrorism-related content including on the internet.

The interspersing of judicial oversight into the process makes that provision much less susceptible to abuse. That is not the case here. Moreover, worrying differences are apparent between the English and Sinhala versions of the PSTA. It is the Sinhala text which is the authoritative version. As observed last week, Clause 3(1) of the PSTA containing the mens rea (mental element) of the offence of terrorism uses the term ‘purpose’ instead of ‘intent.’

Far more powers than the PTA

Aggravating these concerns, the term ‘purpose’ has been translated into Sinhala as an act that causes a certain ‘prathipalaya’ (‘result)’. Sri Lankan student activists agitating hasty education reforms timed for 2026 by the NPP Government have argued that if during such protests, ‘serious damage is caused to any place of public use,’ they too will be caught up in the primary offence of terrorism given that their protests are with the ‘purpose’ of ’compelling the Government of Sri Lanka… to do or to abstain from doing any act.’

In fact, the 2018 CTA’s clause 3(3) which exempted ‘any action taken by any person in good faith in the lawful exercise of a fundamental right’ is singularly missing from both the ATB and the PSTA. Taken in their totality, all three draft anti-terror laws give State agents far more powers than the PTA which they seek to displace. If such extraordinary powers had been in the hands of the United National Party (UNP) Government during the JVP’s second southern insurrections in the 1980’s, the hands of even the bravest judge would have been tied.

It would have been far more difficult to hold the judicial scales steady between ‘national security’ and civil liberties.  Rebellious JVP ‘youth’ then would have been extra-judicially executed, ‘disappeared’ with greater impunity under ‘cover of law.’ That is a moot point when governing JVP comrades raise their voices in moral indignation in regard to the UNP’s ‘Batalanda torture chamber and other atrocities.

Time for political stage theatre is past

The PSTA is not what the JVP led NPP promised would be a ‘new dawn’ of democracy. Other clauses relating to expanded police powers also remain to be discussed. History will judge the Dissanayake Presidency as harshly as the Jayawardenes, Premadasas and Wickremesinghes of the UNP – probably more so given its loudly trumpeted claim to ‘victimhood’ in the face of ‘State terror’ –

Saner counsel must prevail rather than choosing to go ahead with the draft PSTA with a steamroller majority in Parliament.