The constitutionality of Sri Lanka’s proposed Protection of the State from Terrorism Bill came under intense scrutiny before the Supreme Court yesterday, as lawyers representing petitioners warned that the legislation could impose wider restrictions on personal liberty than the controversial Prevention of Terrorism Act (PTA).
Twenty-five Special Determination petitions challenging the Bill were taken up before a three-judge Bench comprising Chief Justice Preethi Padman Surasena and Justices Achala Wengappuli and Sampath Abayakoon. The submissions raised fundamental questions about arrest powers, judicial independence, detention periods and the potential criminalisation of legitimate dissent.
Counsel Hejaaz Hizbullah, appearing for several petitioners, including two journalists and former PTA detainees, argued that the proposed legislation significantly expands the authority of law enforcement officers to arrest and search individuals. His submissions carry particular significance because he himself spent 22 months incarcerated under the PTA.
Hizbullah drew attention to a major difference between the existing legal framework and the proposed Bill. Under the provisions he discussed, arrests under the PTA required a police officer above the rank of Sub-Inspector. However, Clause 19 of the proposed legislation would empower any police officer, members of the armed forces and Coast Guard officers to conduct searches and arrests.
Such an expansion, if enacted, could increase the number of officials exercising coercive powers over civilians and raise questions about safeguards against arbitrary arrests. The central issue is not simply whether authorities should possess powers to combat terrorism, but whether those powers are accompanied by adequate accountability and protection against misuse.
Another contentious provision is Clause 37. Hizbullah argued that it would curtail Magistrates’ ability to discharge suspects when evidence is insufficient to proceed, by requiring the Attorney General’s consent. He warned that this could reduce judicial officers to little more than “rubber stamps”, undermining the independence of judicial scrutiny at a critical stage of criminal proceedings.
Referring to earlier PTA cases, he cited the discharge of former Inter-University Students’ Federation convener Wasantha Mudalige and DIG Nalaka Silva after Magistrates concluded that the suspects had not committed offences under the Act. His argument highlighted the importance of preserving the judiciary’s ability to prevent continued proceedings unsupported by sufficient evidence.
Clause 60 also came under criticism for allowing Magistrates to impose restriction orders based on allegations that a suspect is preparing to commit an offence under the proposed legislation. Such preventive powers could have far-reaching implications if the threshold for intervention is insufficiently precise.
President’s Counsel Ali Sabry, appearing for another petitioner, questioned whether a definition of terrorism drawn from legislation in countries such as Canada, New Zealand and Australia was suitable for Sri Lanka. He warned that vague language could criminalise conduct that was not necessarily criminal and suppress freedom of expression.
Sabry also highlighted the proposed possibility of detention for up to one year, followed by a further year on remand.
The Supreme Court’s determination will therefore be crucial in assessing whether the Bill strikes a constitutionally acceptable balance between national security and fundamental freedoms. The challenge confronting lawmakers is to ensure that counterterrorism legislation targets genuine threats without weakening judicial safeguards or placing ordinary citizens, journalists and dissenters at disproportionate risk.