Prevention of Organised Crime Bill: Flooding the zone?

   This law is being enacted as part of a flood-the-zone strategy without any public or stakeholder consultation not because new offences are needed, but because the security establishment and the Government want a workaround for the safeguards in existing law. The flood is not entirely of disconnected, discrete pieces of legislation. In this case, part of it is the organically connected PSTA and POCA

It appears that some in our Government have become acolytes of Steve Bannon, President Trump’s Rasputin. Bannon famously said: "The real opposition is the media. And the way to deal with them is to flood the zone with shit.” The idea is to overwhelm your critics (not limited to media in the Sri Lankan context) with multiple initiatives at the same time so that they are compelled to let some pass.

First, it was the 22nd Amendment. Then it was the Protection of the State from Terrorism Bill (PSTA). The NGO (Registration and Supervision) Bill, and the Prevention of Organised Crimes Bill (POCA), Prevention of Foreign Terrorist Fighters, amendments to the Poisons, Opium and Dangerous Drugs Ordinance . . . they keep coming. Who has the time and the resources to analyse all these? Who can mount efforts to reduce the dangers posed to human liberty by this flood through challenges before the Supreme Court in the permitted two weeks, or by other means?

The flood is real, but there may be more to it.

Whack-a-mole

The Government’s tactics also evoke the arcade game of whack-a-mole. As the player whacks down one mole, another pops up on the board. The term is used to describe a situation in which any attempt to deal with a problem is met with another problem, or a recurrence of the original problem.

There is great concern about the issuance of Detention Orders (DOs) by the executive without judicial authority in the PSTA. While the eyes of the critics are fixated on the PSTA, the identical mechanism of detention orders signed by a politically appointed Ministry Secretary appears in the POCA. A concerted effort that leverages UN condemnation, the GSP+ conditions and Constitutional principles may succeed in giving a judge, rather than a political appointee, the authority to approve, modify or reject a request for the DO under the PSTA. But the same Constitutionally problematic provision may get through under POCA. Whack-a-Mole + Flood-the-Zone.

Or take the case of the provisions to extract information from telecom or satellite service providers and platform companies such as Meta in the PSTA (December 2025 draft, section 53). Here, low-level police officers could use Magistrate’s orders obtained through ex-parte and in-camera procedures. Someone must have pointed out these provisions would be counterproductive and inimical to expression of ideas. Commendably, sections 53 and 54 were taken out by the time the PSTA was Gazetted. But they reappear with a few small changes in the POCA Bill. Whack-a-mole.

POCA does not repeal current laws, even partially. For a subset of “serious crimes” described below, the POCA provisions such as those on admissibility of statements may apply in addition to the underlying law (e.g., Penal Code or PSTA).

Overbroad definitions

Early drafts of the Anti-Terrorism Bill and the PSTA had overbroad definitions of terrorism, which has been significantly narrowed and improved in the Gazetted version, but many are still unhappy with it.

What falls within the scope of POCA? Section 3 states: “The provisions of this Act shall apply to the prevention, investigation, prosecution and punishment of offences specified in this Act or First Schedule hereto or any offence punishable by a maximum term of imprisonment of either description for four years or more in this Act (referred to as the “serious crime”), where such serious crime is committed by a member of an organised criminal group.”

The first schedule brings in all kinds of statutes, including the Antiquities Ordinance. But the truly dangerous part is the inclusion of “any offence punishable by a maximum term of imprisonment of either description for a term of four years or more.” It’s rare nowadays for offences to have the upper limit on imprisonment less than four years.

For example, take the controversial Online Safety Act (OSA) that the NPP Manifesto promised to “amend  . . . by removing restrictions on freedom of expression.” Almost without exception offences created by the OSA carry a maximum term of imprisonment of over four years and would constitute “serious offences” that can enable the executive to slap DOs on suspects and deprive them of liberty in ways contrary to international norms such as Article 9 of the ICCPR. Not all the offences in the old laws enacted by the British suffer from the imprisonment-inflation problem. For example, the highly problematic section 120 of the Penal Code (exciting or attempting to excite disaffection against the state) carries only a two-year maximum. No DOs for those exciting disaffection.

If the Police believe that the actions of any non-randomly formed group of three or more persons constitute serious crimes and therefore fall within the scope of this legislation dire consequences result, such as key provisions of the Evidence Ordinance (for example, section 24 which makes confession made under inducement, threat, or promise) being made inapplicable or relaxed (POCA, Part IV).

Most people may think this is no cause for concern because too many of those who perpetrate organised crimes are not caught or convicted. But the problem is that with the kinds of overbroad and vague definitions used in this bill, all sorts of people who are not engaged in organised crimes may fall within the net and lose protections built into the Evidence Ordinance and related laws. Even if the courts hold in favour of the accused, they would have already been punished by incarceration under administrative DOs.

The PTA was used against organised crime and underworld activities and not against suspected terrorists in 2025, as stated in Parliament by Minister Vijitha Herath. This was described as an interim measure or a workaround. But it can work the other way round too.

Most political activities that may be considered “terroristic” by the Government in power or the security establishment tend to involve more than three persons. The exception would be the psychopaths known as lone-wolf terrorists, who have not appeared in Sri Lanka so far. The offences under the PSTA carry prison terms that would bring them within the scope of POCA. Therefore, POCA is likely to be used on top of the PSTA.

For example, the removal of sections 53 and 54 from the December 2025 draft of the PSTA will actually be just a charade. They are removed from the high-profile PSTA but brought back in by the layering of POCA on top of PSTA. Similarly, the various safeguards regarding admissibility of statements in the current PSTA draft may be nullified by layering POCA above the PSTA.

The effect of this law is not necessarily limited to criminals.

Is this law needed?

Much of what this law seeks to do may be done under the tried and tested provisions of the Penal Code. For example, this bill hinges on the elements “organised criminal group” which “means a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes in order to obtain, directly or indirectly, a financial or other material benefit” (s. 66).

That definition, in turn, rests on the definition of a “structured group” which “means a group that is not randomly formed for the immediate commission of a serious crime and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.” (s. 66)

Why these convoluted definitions within definitions when the concepts of abetment, conspiracy and unlawful assembly in the Penal Code can do the job. But the Minister must explain to us why an entirely new law is needed and why the Penal Code and related legislation cannot do the job.

This law is being enacted as part of a flood-the-zone strategy without any public or stakeholder consultation not because new offences are needed, but because the security establishment and the Government want a workaround for the safeguards in existing law. The flood is not entirely of disconnected, discrete pieces of legislation. In this case, part of it is the organically connected PSTA and POCA.