By Dinesh Dodamgoda –

Dinesh D. Dodamgoda

The proposed Protection of the State from Terrorism Act (PTSA) is another attempt to replace Sri Lanka’s Prevention of Terrorism Act (PTA). Although the government presents it as a ‘human rights enhancement,’ critics contend that it is the ‘same old wine,’ retaining the PTA’s draconian powers.

The government has proposed this PTSA in a context in which Sri Lanka relies on international support from geopolitical blocs that emphasise the protection of human rights and freedoms, particularly as guided by the UN Office of the High Commissioner for Human Rights (OHCHR).

The OHCHR and the Special Rapporteur on Counterterrorism have set out a ‘Roadmap’ of prerequisites for Sri Lanka (December 9, 2021, Ref: OL LKR 7/2021) and ‘urged’ the government to ensure that any amendments to the PTA address identified international human rights law deficits and align the legislation with Sri Lanka’s international obligations. The OHCHR outlined a key benchmark with five points. These are (1) employ definitions of terrorism that comply with international norms; (2) ensure precision and legal certainty, especially when this legislation may affect the rights to freedom of expression, opinion, association, and religion or belief; (3) institute provisions and measures to prevent and halt arbitrary deprivation of liberty; (4) ensure preventive measures are in place to prevent torture and enforced disappearance and adhere to their absolute prohibition; and (5) enable overarching due process and fair trial guarantees, including judicial oversight and access to legal counsel.

Since the OHCHR established five core benchmarks—the Principles of Legality (Precision), Necessity and Proportionality, Independent Judicial Oversight, Non-Discrimination, and the Absolute Prohibition of Torture—the government has an international obligation to adhere to these standards when repealing the PTA and enacting new terrorism legislation. This article examines the first two principles, Legality (precision) and Necessity and Proportionality, of the proposed PTSA in light of the OHCHR and the Special Rapporteur’s ‘Roadmap’ for Sri Lanka.

The Principles of Legality (Precision)

The OHCHR emphasises that laws should be clearly defined and specific. Some critics of the PTSA argue that ‘terrorism’ should refer only to acts of extreme violence against people, noting that the PTSA also encompasses non-violent acts such as severe property damage and the disruption of vital services. These critics worry that such broad definitions could enable the government to label political protests or labour strikes as ‘terrorist acts,’ raising concerns about legal clarity.

While I too note the government’s broad and vague definition of terrorism, I must emphasise a vital point: as terrorism expert Alex Schmidt noted, terrorism as a modus operandi primarily revolves around propaganda rather than violence; violence seeks to influence behaviour through coercion, while propaganda aims to persuade. Terrorism integrates both elements.

Hence, the government must create a counterterrorism framework within the PTSA to tackle terrorism that goes beyond severe violence. Nonetheless, such a framework should not violate citizens’ rights to freedom of speech, of the press, of opinion, of association, or of religion. Any limitations on these rights should be ‘necessary’ for specific counterterrorism objectives and ‘proportionate.’ Therefore, it is essential to establish and adhere to proper procedures when implementing counterterrorism measures that go beyond suppressing violence.

Necessity and Proportionality

Section 74 of the PTSA overrides citizens’ privacy rights protected by the Data Protection Act and bypasses the procedural safeguards of the Computer Crime Act, particularly in terrorism-related cases. Moving from the Computer Crime Act’s focused approach to the broad surveillance enabled by the PTSA, it equates digital interference with terrorism. This lowers the threshold for monitoring activists, journalists, professionals and citizens, thereby increasing the risks and costs associated with dissent.

Furthermore, Section 19 of the PTSA militarises digital evidence by permitting military personnel to confiscate devices such as mobile phones and laptops. Given that the military lacks training in managing digital evidence, this raises concerns about data tampering, privacy violations, and the possibility of forced device unlocking under pressure.

The PTSA criminalises ‘serious obstruction or damage to any electronic or automated system’ to address ‘cyberterrorism.’ However, the language is so broad and vague that it could cover a Distributed Denial-of-Service (DDoS) attack during a political protest or even an unintentional shutdown of a government website. Usually, such actions are classified as misdemeanours or standard computer crimes, but under the PTSA, they could carry a life sentence!

The PSTA dangerously allows authorities to access ‘any analogue or digital data or information exchange system.’ Experts highlight that this effectively provides the government with legal grounds to seek ‘backdoors’ in encrypted messaging apps such as WhatsApp or Signal, or to compel individuals to disclose passwords under the ‘Duty to Report’ clause. Not providing a password could be interpreted as withholding critical information about a terrorist offence. Section 15 of the PSTA imposes a 7-year prison sentence for failing to disclose information, which is seen as unnecessary and excessive. It criminalises silence and risks turning every citizen into a potential informant, representing an unjustified intrusion into private life and violating professional ethics, including those of lawyers and journalists.

Therefore, I observe that the PTSA has not adhered to the first two Principles of the OHCHR—Legality (Precision) and Necessity and Proportionality—because it lacks a clear, internationally compliant definition of terrorism and has failed to ensure precision and legal certainty, particularly when this legislation could affect rights such as freedom of expression, opinion, association, and religion or belief. The shift from the Computer Crime Act to the PTSA marks a transition from targeted law enforcement to broader surveillance powers. By classifying digital interference as terrorism, the state reduces the evidence required to track activists, journalists, lawyers, doctors, and citizens, thereby making dissent and the protection of professional rights more costly.

Modern Terrorism and Dissent

Modern terrorism stems from the suppression of political dissent. Its roots trace back to the 19th-century anarchist movement and the influence of the sensationalist ‘yellow press’ or tabloids. From around 1850, affordable daily newspapers, particularly in the U.S.A., sought to attract a broad audience and advertisers by emphasising sensational stories rather than delivering factual reports, political opinions, or analysis. Consequently, news became a commodity. This shift made it difficult for 19th-century middle- and upper-class revolutionaries to use the yellow press to convey their political messages, as sensationalism was prioritised to delight audiences.

Deprived by the yellow press, revolutionaries and anarchists turned to the doctrine of ‘propaganda by deed’ after the invention of dynamite. Paule Brousse, an early anarchist advocate, viewed the ‘exemplary deed’ as a means to demonstrate to the masses what they could not read, to teach them socialism in practice, and to make it visible, tangible, and concrete. This modus operandi gained popularity, giving rise to modern terrorism.

Therefore, unnecessary and disproportionate restrictions on freedom of expression, opinion, association, and religion do not help prevent terrorism. On the contrary, they may radicalise political dissent and promote acts of ‘propaganda by deed’ or terrorism. Thus, as a final word, I must say that the PTSA’s approach to countering terrorism should avoid being counterproductive!

*Dinesh Dodamgoda: Dinesh is an Attorney-at-Law and holds an MSc in Global Security from the Royal Military College of Science (Cranfield University), Shrivenham, UK. He conducted research on terrorism and counterterrorism at the University of Newcastle upon Tyne, UK, and at The Centre for Terrorism and Political Violence (CSTPV) in the School of International Relations at the University of St Andrews, Scotland. In 2011, he was awarded a Fulbright Scholarship to study U.S. National Security Policy Making at the University of Delaware.