By The Pulseline News Desk
President’s Counsel (PC) Eraj de Silva has told the Supreme Court that the proposed Protection of State from Terrorism Act (PSTA) Bill could undermine fundamental rights, restrict judicial independence and suppress dissent, arguing that it must be approved by the people at a referendum in addition to securing a two-thirds majority in Parliament.
In written submissions filed in support of a petition challenging the Bill, de Silva has contended that several provisions were inconsistent with Articles 3, 4, 10, 12, 13 and 14 of the Constitution, which relate to sovereignty, the exercise of judicial power, freedom of thought and conscience, equality before the law, personal liberty and freedom of expression.
He has particularly challenged Clause 3, which defines the offence of terrorism, and Clauses 26, 27, 28 and 29, which he has argued would permit detention without adequate judicial oversight.
The submissions maintain that the proposed legislation goes beyond addressing terrorism and could create a legal framework capable of discouraging political dissent, artistic expression and academic debate.
Government accused of departing from its mandate
De Silva has argued that the proposed legislation lacked a mandate from the electorate, pointing to the National People’s Power’s presidential election manifesto, A Thriving Nation – A Beautiful Life.
The manifesto, on page 129, has pledged the abolition of oppressive laws, including the Prevention of Terrorism Act (PTA), and the protection of civil rights throughout the country.
The submissions have contended that the Government must provide a compelling policy justification for departing from that commitment, particularly when introducing legislation that the petitioner considers more restrictive.
In the absence of such justification, the petitioner has argued that the legislation could be arbitrary or driven by collateral motives.
He has further submitted that, where the proposed legislation departs substantially from the mandate given by the people, the Government should seek their approval under Article 4(a) of the Constitution.
The submissions have characterised the Bill as legislation that could thwart independent thought, stifle dissent and suppress opposing political views.
Broad definition of terrorism under scrutiny
A central objection concerns Clause 3, which defines the offence of terrorism.
De Silva has argued that the proposed definition differs from previous anti-terrorism legislation because it could make a person criminally liable for an act that causes a specified consequence, even if that person did not personally commit the act resulting in that consequence.
According to the submissions, this could create uncertainty over who may be prosecuted for terrorism and expose individuals engaged in political, artistic, literary or academic activities to the risk of being labelled terrorists.
The petitioner has also challenged the use of expressions such as “state of terror”, “unduly compelling the government or an international organization” and advancing a “political or ideological objective”.
He has argued that these expressions were insufficiently precise and that the definition was circular, leaving room for an overly broad interpretation of the offence.
The submissions have contended that such uncertainty could have a chilling effect on freedom of expression and the exchange of ideas.
To illustrate the potential implications, de Silva has referred to a well-known song by veteran singer Nanda Malini that questions a system in which imagining a new world is treated as an offence.
He has argued that, under an expansive interpretation of the proposed definition, an artist could face the risk of criminal liability if another person acted upon ideas expressed through a song or other creative work.
The argument is that the law must distinguish between the expression of an idea and criminal conduct, rather than allowing the consequences of another person’s actions to determine the criminal liability of the person who expressed that idea.
De Silva has further relied on the Supreme Court’s determination on the Sri Lanka Broadcasting Authority Bill in 1997, arguing that the constitutional implications of legislation must be assessed not only by considering whether powers are likely to be abused, but also by examining the potential for abuse inherent in the powers granted.
He has submitted that Clause 3 should be examined against the protection of freedom of thought and conscience under Article 10, particularly where the threat of losing one’s liberty could discourage legitimate public expression.
Executive detention and judicial oversight
The proposed detention provisions form the other principal basis of the challenge.
De Silva has argued that Clauses 26 to 29 could remove effective judicial oversight from decisions affecting personal liberty, placing individuals at the discretion of the executive.
He has warned that the provisions could create opportunities for abuse by allowing liberty to be curtailed without a criminal conviction and without adequate judicial control.
The submissions have invoked the principle that personal liberty is a fundamental safeguard of the rule of law, referring to its historical recognition under Magna Carta.
They also rely on the Supreme Court’s recent determination on the Anti-Corruption (Amendment) Bill, identified in the submissions as SC (SD) 49-119/2026, in which the petitioner has said the Court had held that deprivation of liberty without judicial oversight was inconsistent with Articles 3 and 4 of the Constitution.
De Silva has urged the Court to apply the same constitutional principles to the proposed anti-terrorism legislation.
He has further argued that detention provisions must be examined in conjunction with Articles 11 and 13, which protect against cruel, inhuman or degrading treatment and safeguard personal liberty through constitutional guarantees relating to arrest, detention and the presumption of innocence.
Citing the Supreme Court judgment in Abeywickrema v. Gunaratna and Three Others ([1997] 3 Sri LR 225), the submissions have contended that the treatment of a person in custody and the circumstances surrounding the deprivation of liberty may engage both Articles 11 and 13.
The petitioner has maintained that safeguards against unlawful detention must be effective in practice and cannot be displaced by executive or prosecutorial decisions that materially restrict access to liberty before conviction.
Existing laws do not settle constitutionality
Addressing the question of whether similar provisions already exist in Sri Lankan law, de Silva has submitted that their presence in existing legislation does not relieve the Supreme Court of its constitutional responsibility to examine the provisions of the Bill currently before it.
He has cited the Supreme Court determination on the Special Goods and Services Tax Bill, SC/SD/01-09/2022, in support of the argument that the constitutionality of challenged provisions must be determined afresh.
The submissions also rely on the Supreme Court’s 1984 determination on the Poisons, Opium and Dangerous Drugs (Amendment) Bill.
In that determination, the Court has found that a provision restricting the granting of bail without the Attorney General’s sanction was inconsistent with Articles 3 and 4(c), because it placed a fetter on the judicial power exercised by courts.
The Court had held that the relevant provision required approval by a two-thirds majority in Parliament and approval by the people at a referendum.
De Silva has argued that the same constitutional principle applies where the proposed PSTA Bill restricts judicial discretion or places decisions affecting liberty beyond effective judicial control.
He has further cited the Supreme Court’s determination on the Industrial Disputes (Special Provisions) Bill in 2022, arguing that constitutional provisions governing judicial appointments and the exercise of judicial power must be read alongside Article 4(c), which deals with the exercise of the judicial power of the people.
On that basis, the petitioner has contended that restrictions on judicial discretion under the proposed legislation raise issues extending beyond individual fundamental rights to the sovereignty of the people.
Article 75 and the limits of legislative power
The submissions have also invoked Article 75 of the Constitution, which concerns Parliament’s legislative power.
De Silva has argued that the Bill could undermine the effective operation of Article 4, which provides for the exercise of the sovereignty of the people, including through the judiciary.
He has relied on the Supreme Court’s determination on the 19th Amendment to the Constitution, reported in (2002) 3 Sri LR 85, in which a seven-judge bench presided over by then Chief Justice Sarath N. Silva had held that the legislature could not enact laws that suspend the operation of the Constitution.
The petitioner has maintained that the proposed legislation must be assessed against this constitutional principle, particularly where its provisions could interfere with judicial power and fundamental freedoms.
Referendum sought alongside parliamentary majority
The central question raised by the submissions is whether the proposed PSTA Bill can be enacted through a two-thirds parliamentary majority alone or whether constitutional inconsistencies require approval at a referendum as well.
De Silva has argued that the combined effect of the challenged provisions, particularly those relating to the definition of terrorism and detention without judicial oversight, would affect the sovereignty of the people guaranteed by Articles 3 and 4.
The submissions have asked the Supreme Court to determine that Clauses 3, 26, 27, 28 and 29, in their present form, require approval by the people at a referendum.
The Court’s determination will establish the constitutional requirements for the Bill’s passage.
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