Colombo, Oct. 21 (Daily Mirror) - The Bar Association of Sri Lanka (BASL) has called on the government to withdraw the proposed Protection of the State from Terrorism Bill and the Prevention of Organised Crimes Bill in their present forms, warning that the legislation could undermine fundamental rights and weaken judicial oversight over arrests and detentions.
In a statement issued today (21), BASL President Rajeev Amarasuriya and Secretary Nalin De Silva said the two bills, which have been placed on Parliament’s Order Paper, would confer extraordinary powers of arrest, detention and surveillance on the Executive while potentially restricting freedom of association, expression and movement.
The BASL said it recognised the State’s responsibility to protect the public from terrorism and serious organised crime. However, it stressed that these objectives could not justify weakening constitutional safeguards or allowing individuals to be deprived of their liberty without effective and timely judicial oversight.
Expressing serious concerns over the Protection of the State from Terrorism Bill (PSTA), intended to replace the Prevention of Terrorism Act (PTA), the BASL said the gazetted version differed significantly from the draft approved by the committee appointed to review the existing law.
According to the BASL, the changes were not referred back to the committee before publication. Its nominees to the review committee, President’s Counsel Saliya Pieris and President’s Counsel Chanaka de Silva, had informed the BASL of the departures from the approved draft.
The BASL said the proposed legislation would require Magistrates to remand suspects, significantly restricting their discretion to assess whether detention was justified. It also provides for bail only through the High Court, with exceptional circumstances required for bail in offences punishable by life imprisonment.
The BASL further warned that the removal of a requirement for Magistrates to approve extensions of detention beyond the initial two-month period under PSTA bill would diminish judicial oversight over continued detention.
It also raised concerns about provisions relating to restriction orders, the proscription of organisations, an expanded range of offences and immunities, and the creation of criminal liability through subordinate legislation and executive directives. The BASL said the proposed safeguards for legal advice had also been narrowed.
The BASL said it had written to Justice and National Integration Minister Harshana Nanayakkara on October 8, requesting that the changes be rectified, including through amendments at the Committee Stage. However, it said no response had been received from the Ministry.
The BASL has also filed a Special Determination application before the Supreme Court challenging provisions of the PSTA on the grounds that they are inconsistent with constitutional protections, including those relating to equality, personal liberty, freedom of expression, assembly, association and movement, and access to information.
Turning to the Prevention of Organised Crimes Bill (OCB), the BASL said that although it recognised the need to combat organised crime, there had been no public consultation during the preparation of the proposed legislation. It maintained that the BASL had neither been consulted nor informed about the drafting process, while the composition of the body responsible for preparing the Bill had not been made public.
The BASL warned that the Bill’s definition of “serious crimes” and “organised criminal groups” was excessively broad. It classifies offences punishable by imprisonment of four years or more, together with approximately 50 offences listed in its First Schedule, as serious crimes.
The BASL maintained that under the proposed legislation, a structured group of three or more persons acting together to obtain a financial or other material benefit could fall within the definition of an organised criminal group, even without formal roles, continuity of membership or a developed structure.
The BASL said the Bill could allow individuals to be detained under orders issued by the Secretary to the Ministry responsible for the Sri Lanka Police Force for periods of up to two months at a time, amounting to a maximum of one year, with bail available only through the High Court. It argued that a court would not determine whether detention was necessary before such an order was issued.
Illustrating its concerns, the BASL said even a minor copyright infringement could potentially be treated as organised crime under the proposed law.
It cited the example of an amateur band performing popular songs at a restaurant without permission from the relevant copyright holders. Under a literal interpretation of the Bill, the BASL said, the band members could be treated as an organised criminal group and face detention, while their instruments and equipment could be seized and subjected to forfeiture.
The BASL also warned that the Bill could enable courts to consider factors such as dress, tattoos, hand signs, language, associations with known members and attendance at physical or virtual meetings when determining whether a person belonged to an organised criminal group.
Such provisions, it said, could disproportionately affect young people and marginalised communities. Depending on how the definitions were interpreted, the legislation could also encompass peaceful protests, trade union activities and civil society organisations.