PTSA: Realistic options

The clock has started ticking on the Prevention of Terrorism against the State bill; the first of many petitions against it have been filed at the Supreme Court. Many whose prime concern is human rights appear to believe this is a bad bill. What are the realistic options before us at this moment when a Government with a supermajority has decided to pay the political price of violating its election promise to repeal the abhorrent Prevention of Terrorism Act (PTA) under which their own comrades suffered?

Repeal

Implementing the manifesto promise is easy. Let the private member’s motion to repeal the PTA presented by MP Shanakyan Rasamanickam in June 2026 move forward. This Act did not create any organisation that has to be wound up. The only question is what to do about the people incarcerated under the PTA and the pending cases. 

The Government has been in power for two years. It has refused pleadings for repeal and has gazetted the PTSB. This option may be ruled out.

Fundamentally revise

There is strong support for scrapping the present bill and “going back to the drawing board.” That was my recommendation regarding the Anti-Terrorism Bill that was presented by former Minister Wijayadasa Rajapaksha.  

He did not go back to the drawing board (much of that draft reappears in the present bill), but that Government did not proceed with the bill after gazetting it. As Minister Rajapaksha said at the time, the result was the continuance of the PTA. 

The Arsecularatne committee appointed by this Government has completed its work, with a few dissents such as those of Saliya Peiris, discussed below. A new committee would have to be appointed and given time to prepare a new draft when the cycle would begin again. The result would be the continuation of the PTA. 

For a Government that has gone this far, this option is unlikely.

What remains

Other than repeal and fundamental revision, three options are open to the Government.

The first is that the Government ignores civil society and the bill goes to second reading and assured enactment. The Government has the supermajority and can easily override any changes indicated by the Supreme Court, short of a referendum. Alternatively, the Government can make some changes to allow the bill to be approved in the normal manner.

A few provisions that assign powers that belong to the judiciary to the executive may draw the attention of the Supreme Court. The entirety of Section VII which subverts the Constitutional safeguard mechanism of monthly approvals of declarations of emergency by Parliament is an example. The PTA will stand repealed on the day the new law comes into force.

The second option is for the Government to bow to the outcry and withdraw the bill or keep it suspended. There is precedent in the Penal Code amendments on corporal punishment under this Government and in the Anti-Terrorism Bill of the previous Government. The PTA will continue. The President appears to have no problems in signing detention orders.

The third option is to tweak the current bill. My priorities are the changes I have been advocating which overlap with Committee Member Saliya Pieris’s dissents: “At a minimum, a judge, preferably a High Court judge, should be authorised to approve or reject the Detention Order issued by the politically appointed Ministry Secretary by amending s. 26(3) and the decisions of the Independent Review Committee should be made binding and not subject to the whims of the Minister, by amending s. 30(8).” These changes will help us pass the international-norms test needed to retain the European Union’s GSP+ concession.

It is unwise to ask for too many changes at this stage where only the Attorney General’s undertakings to the court or committee-stage amendments are feasible. Based on that assessment I limited my change requests to three: the above plus Section VII that subverts Constitutional safeguards against abuse of emergency powers. But others are free to make their own recommendations. 

Unbeknownst to the committee, it appears that their approved text has been changed. Reversing these changes may be among those done now. 

The concerns that have been raised regarding section 9, 10, and 11 may be worthy of prioritisation. The drafters have sought to reduce the bite of sections 9 and 10 (affecting communication; impinging on freedom of speech) through safeguards in section 11. But the concern is that section 11 comes into play only when the case is taken up in court. The previous behavior of Government investigators and lawyers regarding the ICCPR Act, for example, does not give comfort that they will apply section 11 diligently. By the time the person accused of committing an offence under section 9 or 10 gets the opportunity to invoke section 11, he/she would have been deprived of liberty for months, of not years.

If the third option is taken by concerned individuals and organisations and by the Government, there is no guarantee that the tweaks will be adequate. That risk is unavoidable when the power asymmetry between a Government with a supermajority and civil society is so vast. But some good may result if the third option is taken by civil society and by the Government. In this scenario, the PTA will finally be repealed.