By The Pulseline News Desk
President’s Counsel Eraj de Silva has warned that the proposed Prevention of Organised Crimes Bill could expose legitimate businesses, professionals and ordinary citizens to arbitrary arrest and detention, arguing that its broad definitions and extensive investigative powers create considerable scope for abuse.
In written submissions filed before the Supreme Court in connection with two constitutional petitions, SC (SD) Nos. 177/2026 and 182/2026, de Silva contended that the Bill, in its present form, creates parallel legal regimes for investigating and prosecuting the same offences, undermines judicial authority over personal liberty and imposes unjustifiable restrictions on media reporting.
The submissions have identifed five major constitutional concerns, arguing that the proposed legislation is inconsistent with the United Nations Convention Against Transnational Organised Crime (UNTOC), contains vague and potentially arbitrary provisions, and grants the executive excessive powers to deprive individuals of their liberty.
One of the central concerns is the possibility that ordinary commercial activities could be brought within the scope of organised crime investigations.
The petitioners have argued that the Bill’s definition of a serious crime, when read alongside its definition of an organised criminal group, could potentially result in three or more individuals involved in an ordinary commercial activity being treated as members of an organised criminal group if an offence listed in the First Schedule is alleged.
The submissions particularly highlight the implications for businesses operating under the Excise Ordinance, where numerous regulations, licensing conditions and administrative requirements govern commercial activities.
A breach, or even an alleged breach, of one of these requirements could potentially trigger arrest or detention under the proposed legislation, the petitioners have contend.
They have cited possible commercial disputes involving the classification of Harmonised System (HS) codes, tax calculations and the applicability of particular taxes as examples of situations that could expose businesses to coercive investigative powers.
The submissions have emphasised that neither commercial standing nor public service should confer immunity from criminal investigation. However, they have argued that citizens and legitimate businesses must be able to understand precisely when ordinary legal procedures can be displaced by exceptional powers.
Two legal regimes for the same offences
A major objection has been concerning the creation of what the petitioners have describe as two parallel legal regimes for investigating, prosecuting and punishing the same offence.
Under the proposed arrangement, an offence could be investigated under the relevant existing legislation or brought under the Prevention of Organised Crimes Bill if the conditions specified in Clause 3 are considered satisfied.
The petitioners have pointed out that Clause 17 provides extensive police powers, including entry, search and arrest, while Clauses 20 to 22 establish provisions governing custody, detention orders and subsequent judicial involvement.
The Bill has also introduced special evidentiary provisions under Clauses 46 to 49, while Clause 31 provides for exclusive trial jurisdiction in the High Court and Clause 23 regulates bail for the specified category of offences.
The submissions have argued that certain provisions, particularly those dealing with arrest, search and detention, could operate independently once there is reasonable suspicion of a serious crime.
This could result in parallel investigations by different authorities. For instance, an alleged violation of the Excise Ordinance could be investigated by the Excise Department under the existing law while the Police initiate proceedings under the proposed legislation.
The petitioners have questioned whether authorities would be able to selectively decide which legal framework to invoke, potentially depending on the individual or business being investigated.
They have also raised concerns about situations in which one authority decides not to pursue a case, while another authority uses the proposed legislation to arrest or detain the same individual over the underlying allegation.
Describing this as an unprecedented arrangement, the submissions have warned that it could create considerable opportunities for selective enforcement and harassment.
UN convention and proposed legislation
Another major argument is that the Bill departs significantly from the framework established by the United Nations Convention Against Transnational Organised Crime.
The petitioners have acknowledged that the proposed legislation adopts certain definitions from the Convention, including those relating to organised criminal groups and structured groups.
However, they have argue that the Convention’s scope is fundamentally different from that of the proposed domestic legislation.
Under Article 3 of UNTOC, the Convention applies to relevant offences where they are transnational in nature and involve an organised criminal group.
The Convention defines transnational criminal activity through circumstances such as offences committed in more than one country, criminal planning or direction taking place across national borders, groups operating in multiple countries, or offences having substantial effects in another State.
By contrast, Clause 3 of the proposed Bill has extended its application to specified serious crimes committed by members of organised criminal groups within a considerably broader range of circumstances, including offences committed entirely within Sri Lanka.
The petitioners have argued that the Government has adopted selected provisions from different legal frameworks without adequately considering how they function together.
In a particularly pointed observation, the submissions have compared the legislative approach to selecting unrelated items from an international buffet, arguing that provisions drawn from different jurisdictions have been combined without sufficient coherence.
They have contended that the resulting legislation is confused in its scope and application and could become unworkable.
The submissions have also referred to previous Supreme Court determinations concerning the Broadcasting Authority Bill, Bureau of Rehabilitation Bill, Special Goods and Services Tax Bill and Gender Equality Bill, in which constitutional defects in proposed legislation were considered.
Executive detention powers challenged
The constitutionality of detention orders issued by the executive is another central issue raised by the petitioners.
They have argued that provisions allowing executive authorities to issue detention orders under Clause 21 violated the constitutional principle that judicial power must be exercised by the judiciary.
Referring to Articles 3 and 4 of the Constitution, the submissions have maintained that deprivation of personal liberty is a matter that must be determined by a competent court rather than through an executive decision.
The petitioners have cited previous Supreme Court determinations concerning the Poisons, Opium and Dangerous Drugs (Amendment) Bill, the Industrial Disputes (Special Provisions) Bill and the Anti-Corruption (Amendment) Bill in support of their argument.
They have questioned why an individual should be detained by executive order, even for a single day, rather than having the decision made by a judicial authority.
The submissions have argued that the constitutional validity of such provisions must be examined independently rather than justified by reference to detention arrangements that may exist under other laws.
Vague provisions could encourage arbitrary enforcement
The petitioners have also challenge the overall clarity of the proposed legislation, arguing that several definitions and provisions fail to establish sufficiently precise boundaries for the exercise of state power.
They have contended that vague legal provisions make it difficult for citizens to understand what conduct is prohibited while leaving enforcement authorities with excessive discretion.
Citing previous Supreme Court determinations, including those concerning the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill, Ayurveda (Amendment) Bill and Bureau of Rehabilitation Bill, the submissions have argued that legislation granting powers without adequate guidelines and safeguards could violate Article 12(1) of the Constitution.
They have maintained that even where provisions appear unambiguous, the absence of sufficient safeguards governing the exercise of powers could make their implementation arbitrary.
Media reporting could become a criminal offence
A further constitutional concern relates to Clause 14(3), which makes the publication of matters relating to court proceedings concerning serious crimes under the proposed Act an offence unless prior permission has been obtained from the court.
The provision carries a possible prison sentence of up to two years.
The petitioners have argued that the restriction extends beyond legitimate concerns such as protecting victims’ identities or preventing the publication of material that could prejudice a particular trial.
According to the submissions, the provision could criminalise accurate reporting of court proceedings by making prior judicial permission a general requirement.
They contend that the public’s right to receive information is protected under Article 14(1)(a) of the Constitution and refer to the Supreme Court judgment in Visuvalingam and Others v. Liyanage and Others in support of this position.
The petitioners have further argued that public scrutiny is particularly important when proceedings involve exceptional arrest, search and detention powers.
Any restrictions on reporting, they have submitted, should be based on a demonstrated need, supported by recorded judicial reasons and limited in scope and duration.
Business petitioner highlights tax contributions
The submissions have also provided details of the commercial petitioner in SC (SD) No. 177/2026, a company established in 1924 and engaged in the manufacture, import, sale and distribution of alcoholic beverages.
The company employs approximately 500 people and says it has consistently fulfilled its tax obligations.
According to figures submitted to the Court, its total tax payments increased from approximately Rs. 9.7 billion in 2021/22 to Rs. 26.67 billion in 2025/26.
The company has argued that its legitimate commercial activities could be exposed to the proposed legislation because of the broad manner in which scheduled offences and organised criminal groups are defined.
The other petitioner, in SC (SD) No. 182/2026, is a senior Attorney-at-Law with more than 30 years of professional experience who has been involved in civil society organisations working on fundamental rights, democratic governance and the rule of law.
He has previously served as Director General of Government Information, Chairman of the Sri Lanka Broadcasting Corporation and Chairman of the Independent Television Network.
The petitioners have maintained that their concerns are not based on opposition to investigating organised criminal activity but on the potential for the proposed legislation to extend exceptional powers beyond the circumstances for which they are intended.
In their concluding submissions, they have asked the Supreme Court to consider whether the Prevention of Organised Crimes Bill, as a whole, is inconsistent with Articles 1, 3, 4, 10, 11, 12, 13, 14 and 75 of the Constitution.
They have argued that the legislation, in its present form, poses serious questions concerning personal liberty, judicial independence, equality before the law, freedom of expression and the proper limits of executive authority.
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