{"id":249888,"date":"2026-11-12T04:43:19","date_gmt":"2026-11-11T23:13:19","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=249888"},"modified":"2026-11-12T04:43:19","modified_gmt":"2026-11-11T23:13:19","slug":"counter-terrorism-must-not-come-at-the-expense-of-democracy","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/counter-terrorism-must-not-come-at-the-expense-of-democracy\/","title":{"rendered":"Counter-Terrorism Must Not Come At The Expense Of Democracy"},"content":{"rendered":"

By Piyadasa Edirisuriya<\/a> –<\/strong><\/span><\/p>\n

\"\"

Dr Piyadasa Edirisuriya<\/p><\/div>\n

Suggested amendments to Sri Lanka\u2019s Protection of the State from Terrorism Bill offer an opportunity to establish a security framework that protects the public while upholding constitutional rights, judicial independence and the rule of law.<\/i><\/p>\n

Sri Lanka has a legitimate responsibility to protect its citizens, institutions and national security from terrorism. The country\u2019s experience of prolonged conflict, political violence and the Easter Sunday attacks have demonstrated the devastating consequences of failures in intelligence, law enforcement and national security coordination. No responsible government can ignore the need for effective legislation to prevent, investigate and prosecute terrorist activity. However, the challenge before Parliament is not simply to enact a law that gives the State stronger powers. It is to establish a legal framework that makes those powers effective, accountable and consistent with democratic principles.<\/p>\n

The proposed Protection of the State from Terrorism Act (PSTA), 2026, therefore presents Parliament with an important opportunity. Rather than merely replacing the Prevention of Terrorism Act (PTA), the new legislation should address the fundamental weaknesses that have made extraordinary counter-terrorism powers vulnerable to misuse. The central question is whether Sri Lanka can protect national security without compromising the freedoms and legal safeguards that distinguish a democratic society from an authoritarian system.<\/p>\n

Replacing the PTA requires more than changing its name<\/b><\/span><\/p>\n

The PTA was introduced in 1979 as temporary legislation but remained in operation for decades. Its application attracted persistent criticism over prolonged detention without trial, allegations of torture, restrictions on access to legal representation and the use of counter-terrorism powers against individuals engaged in political or other forms of dissent. The proposed legislation should not reproduce these weaknesses under a different name. The planned amendments should be guided by a straightforward principle: terrorism must be defined narrowly, investigative powers must be proportionate to the threat, detention must be subject to effective judicial supervision, and every person must retain access to fundamental legal protections.<\/p>\n

International human rights standards, particularly the International Covenant on Civil and Political Rights and the Convention against Torture, provide an important framework for achieving this balance. Concerns raised by United Nations human rights mechanisms about the proposed legislation also deserve serious consideration by the Parliament.<\/p>\n

A precise definition of terrorism is essential<\/b><\/span><\/p>\n

One of the most important areas requiring amendment is the definition of terrorism. A counter-terrorism law must distinguish clearly between genuine terrorist activity and ordinary criminal conduct, political opposition, industrial action, public protest and peaceful advocacy. The proposed legislation contains provisions dealing with conduct intended to provoke terror, intimidate the public or compel a government or international organisation. It also includes a range of consequences and activities that may fall within the definition of terrorism. Although the Bill contains safeguards stating that protests, advocacy, dissent and strikes should not, by themselves, provide sufficient grounds for an inference of terrorism, such safeguards may not be adequate if the underlying definition remains broad or ambiguous.<\/p>\n

Parliament should therefore ensure that terrorism offences require proof of a deliberate intention to carry out a serious act of violence or comparable grave harm for a specified terrorist purpose. The definition should focus on conduct such as causing death or serious bodily injury, taking hostages, or creating a grave danger to public safety through serious violence. Damage to critical infrastructure should qualify only where it creates a sufficiently serious danger and is connected to the required terrorist intention. Ordinary offences such as robbery, theft, extortion or damage to property should not automatically become terrorist offences merely because they are included in a broadly worded statutory provision. There must be a demonstrable connection with the terrorist purpose and the serious harm contemplated by the law. This distinction is particularly important in a country where demonstrations, trade union action and political campaigns form part of the democratic process. A government must have the authority to prosecute violence and intimidation. It must not, however, have the discretion to characterise legitimate opposition as terrorism.<\/p>\n

Detention powers must be brought under judicial control<\/b><\/span><\/p>\n

Perhaps the most significant concern relates to the proposed detention arrangements. Under the proposed framework, Section 29 allows the Secretary to issue detention orders initially for two months, with renewals subject to statutory limits. Section 26 requires the Magistrate to give effect to such an order. Section 28 provides for remand periods that may extend up to one year, while the combined period of detention and remand may reach two years. Section 35 provides for judicial approval of extensions beyond the initial two-month period. Nevertheless, the fundamental problem remains: the initial detention order is an executive decision, and the Magistrate’s role under Section 26 is constrained by the statutory requirement to give effect to it.<\/p>\n

This arrangement risks weakening the independence of judicial oversight at the very point when it is most necessary. The proposed amendments should remove the power of the executive to authorise prolonged detention without prior judicial approval. Any detention beyond the period reasonably required for immediate investigation should require a reasoned order from an independent court. A detainee should be brought before a Magistrate promptly, informed of the reasons for arrest and given an effective opportunity to challenge the legality of detention. The law should also establish strict limits on detention and remand, with every extension justified by specific evidence and necessity. The burden should rest on the State to demonstrate why continued detention is required. The principle should be clear: national security investigations may require special procedures, but they should not create a separate system in which the executive effectively determines the liberty of individuals.<\/p>\n

The military should not become a substitute for civilian policing<\/b><\/span><\/p>\n

Another important issue concerns the powers granted to members of the armed forces and the Coast Guard. The proposed Section 20 gives designated security personnel powers to stop, search, question, enter premises and seize property in specified circumstances. The legislation also provides for the transfer of persons arrested by the military or Coast Guard to the police within 24 hours, subject to the applicable provisions. Although military assistance may be necessary in exceptional security emergencies, routine investigation and arrest should remain the responsibility of the civilian police. The armed forces are trained primarily for defence and military operations. Police officers, by contrast, are expected to investigate offences, collect admissible evidence, protect suspects’ rights and prepare cases for prosecution. Expanding military powers without sufficiently precise safeguards could blur this institutional distinction and create uncertainty about accountability. The amendments should therefore restrict military and Coast Guard arrest powers to clearly defined exceptional circumstances. Any person arrested by military personnel should be transferred to civilian police custody as quickly as practicable, with a proposed six-hour limit as a legislative safeguard, subject to clearly specified emergency exceptions. Every arrest, search and seizure should be properly recorded. Where practicable, judicial warrants should be required, with narrowly defined emergency exceptions followed by prompt judicial review. These safeguards would protect citizens while ensuring that legitimate security operations remain effective.<\/p>\n

Access to lawyers and protection against torture<\/b><\/span><\/p>\n

A counter-terrorism law must not weaken the prohibition against torture or the right to a fair trial. In practice, the first hours following arrest are particularly important. A person held without access to a lawyer, family members or independent medical examination is vulnerable to coercion, intimidation and ill-treatment. The proposed amendments should guarantee immediate access to legal representation, subject only to narrowly defined and judicially reviewable restrictions that cannot undermine the substance of the right.<\/p>\n

The authorities should be required to notify the detainee’s family and the Human Rights Commission of Sri Lanka promptly. Every detainee should have access to an independent medical examination, and all interviews should be audio-visually recorded wherever practicable. Most importantly, evidence obtained through torture, cruel treatment, coercion or other serious violations of fundamental rights must be inadmissible in judicial proceedings. The law should also require an independent investigation whenever credible allegations of torture or ill-treatment arise. Such safeguards do not protect terrorism suspects from legitimate investigation. They protect the integrity of the investigation itself. Evidence obtained lawfully is more reliable and less vulnerable to challenge in court.<\/p>\n

Freedom of expression and media independence must be protected<\/b><\/span><\/p>\n

The provisions dealing with statements, publications and the dissemination of material require particularly careful examination. Terrorist organisations may use publications and digital platforms to recruit members, encourage violence, spread propaganda and coordinate criminal activity. The State is entitled to take proportionate action against such conduct. However, laws dealing with terrorist publications must not create uncertainty for journalists, academics, researchers, civil society organisations and ordinary citizens.<\/p>\n

The proposed amendments should distinguish between deliberately encouraging terrorist violence and reporting, analysing or discussing terrorism in the public interest. Journalists should not be compelled to disclose confidential sources merely because information is sought during an investigation. Any compulsory disclosure should require a court order, based on a demonstrated necessity and proportionality, with particular consideration given to the public interest in protecting journalistic confidentiality. Similarly, the possession or circulation of material should not automatically constitute an offence without proof of the required criminal intention. The proposed legislation must also ensure that criticism of government policy, reporting on security operations and peaceful political expression cannot be criminalised through broadly interpreted provisions. A democratic society must be able to investigate terrorism without intimidating the media or discouraging public scrutiny.<\/p>\n

Executive powers and the proscription of organisations<\/b><\/span><\/p>\n

The proposed provisions concerning the proscription of organisations, restrictions on public meetings and limitations on movement raise further questions about the balance between national security and civil liberties. The State must have the power to prohibit organisations that are demonstrably involved in terrorism. However, such decisions should not rest solely on broad executive discretion. The proposed amendments should require the authorities to present credible evidence of an organisation’s involvement in terrorist activity. Any proscription should be reasoned, time-limited and subject to independent judicial review. An organisation or affected individual should have access to sufficient information to challenge the decision, subject to narrowly defined protections for genuinely sensitive intelligence. The same principle should apply to restrictions on meetings, public places, movement and communications. Such restrictions should be imposed only where necessary to address a specific and identifiable security threat. They should be proportionate, geographically limited, time-bound and open to judicial challenge. National security should not become a general justification for restricting lawful political and social activity.<\/p>\n

Prosecutorial discretion and compensation require safeguards<\/b><\/span><\/p>\n

The proposed provisions concerning prosecutorial decisions and the possible deferral of proceedings for extended periods also deserve reconsideration. The Attorney-General must retain sufficient independence to make decisions in the public interest. However, lengthy deferrals of prosecutions can create uncertainty for suspects, victims and witnesses alike.<\/p>\n

Any decision to defer proceedings should be based on clearly defined statutory grounds, supported by written reasons and subject to periodic judicial review. An affected person should not be left indefinitely under the shadow of possible prosecution. Similarly, provisions dealing with compensation and immunity should be strengthened.<\/p>\n

A person who has been unlawfully detained, tortured or otherwise subjected to serious violations of fundamental rights must have access to an effective remedy. Compensation should not depend solely on executive discretion. Public officials who act unlawfully or abuse their powers should not enjoy blanket immunity. Good-faith protection for officials carrying out lawful duties may be appropriate, but it must never shield torture, deliberate abuse, corruption or serious violations of human rights. Accountability is not an obstacle to national security. It is a necessary condition for maintaining public confidence in security institutions.<\/p>\n

An independent oversight mechanism is necessary<\/b><\/span><\/p>\n

One of the most important institutional reforms would be the establishment of an independent National Security Legislation Review Commission. Such a body should be independent of the police, military, intelligence agencies and the political executive. Its membership should include persons with expertise in law, human rights, national security, policing and public administration.<\/p>\n

The Commission should review the implementation of the law, examine complaints concerning the exercise of counter-terrorism powers, assess detention practices and publish periodic reports to Parliament. It should also examine whether the legislation is achieving its stated objectives and whether particular powers are being used disproportionately. Parliament should receive regular information on arrests, detention orders, prosecutions, convictions, acquittals, complaints of ill-treatment and compensation paid for unlawful conduct. Sensitive operational information may need to remain confidential, but secrecy should not prevent meaningful parliamentary scrutiny. The legislation should also be subject to periodic review, with a requirement that extraordinary powers be reconsidered and renewed only where their necessity is demonstrated.<\/p>\n

Transitional provisions and the repeal of the PTA<\/b><\/span><\/p>\n

The repeal of the PTA is an essential part of the proposed reform. However, repeal provisions must be accompanied by clear transitional arrangements. Pending cases should not automatically be abandoned, nor should they continue indefinitely under procedures that violate the new legal safeguards. Each case should be reviewed to establish whether the alleged conduct remains an offence under the new law, whether the evidence was lawfully obtained and whether the prosecution can proceed consistently with fair-trial requirements. Persons detained under the previous legislation should also have their cases reviewed promptly by an independent court. This approach would protect the integrity of legitimate prosecutions while ensuring that individuals are not deprived of their liberty merely because of the continuation of an outdated legal process.<\/p>\n

Parliament must get the legislation right<\/b><\/span><\/p>\n

The proposed amendments are not intended to weaken Sri Lanka’s capacity to combat terrorism. On the contrary, a carefully drafted law can strengthen the State’s ability to investigate and prosecute genuine terrorist activity. Overly broad legislation, excessive executive discretion and weak accountability may produce the opposite result. They can undermine public cooperation, damage confidence in law enforcement and expose prosecutions to legal challenge. A credible counter-terrorism framework must therefore rest on several essential foundations: a precise definition of terrorism, effective judicial supervision, civilian control of investigations, immediate access to legal representation, protection against torture, freedom of expression, independent oversight and meaningful remedies for abuse.<\/p>\n

The Supreme Court’s consideration of constitutional petitions concerning provisions of the proposed Bill also makes it important that Parliament carefully examines the relevant constitutional questions and incorporates the Court’s determination into the final legislative process. The final text should be checked against the authenticated Gazette version of the Bill, and all proposed amendments should be cross-referenced with the relevant clauses before being presented as a formal amendment Bill.<\/p>\n

Sri Lanka has already paid a heavy price for prolonged conflict, political violence and institutional failures. It should not create another generation of legal uncertainty through legislation that gives excessive powers to the executive without adequate safeguards. The real test of a democratic State is not whether it can exercise extraordinary powers, but whether it can resist abusing them. Parliament now has an opportunity to establish a counter-terrorism law that protects the country from genuine threats while preserving the freedoms and institutions that the State itself is obliged to defend.<\/p>\n

National security and human rights are not competing objectives. A sustainable national security policy must protect both.<\/p>\n

*Author is a former academic at Monash Business School in Australia and previously worked at the Ministry of Finance in Colombo.<\/em><\/strong><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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