By Rohan Samarajiva
Agreement in principle has been reached on a massive trade agreement between the major economic powerhouses of India and the EU. This is a major and positive element of the reconstitution of international economic relations following the depredations of Donald Trump. But it requires attention and action on Sri Lanka’s part.
As soon as the agreement comes into effect, tariffs on textiles, apparel, marine, leather, footwear, chemicals, plastics/rubber, sports goods, toys, gems, and jewellery sectors, comprising more than USD 33 billion of exports that are currently subjected to import duty between 4-26 percent in the EU and are crucial for employment generation, will be subject to zero duty. Sri Lanka has been enjoying zero duty on major exports such as apparel, rubber products and bicycles from 2017 May when the GSP+ concession was regained.
Unlike a negotiated trade agreement, GSP+ is a concession that can be taken away by the EU if Sri Lanka does not keep its commitments, as happened in 2010. In May 2025, at the 8th Meeting of the EU Working Group on Governance, Rule of Law and Human Rights, the government “confirmed the commitment to repeal the Prevention of Terrorism Act (PTA) and briefed the Working Group on the timeline to replace it with new counter-terrorism legislation in compliance with international norms and standards.”
Meeting international norms
The International Covenant on Civil and Political Rights (ICCPR) is the overarching document that sets out international norms and standards in this area. Sri Lanka acceded to it on 11 June 1980.
| ICCPR Article 9 | Prevention of Terrorism against the State Bill (PTSB) 2025 |
| 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. | The proposed law violates the letter and spirit of Article 9. |
| 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. | S. 21 of PTSB complies. S. 25 requires notification of next of kin. |
| 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. | S. 29 gives the authority to Secretary of Defence (a Presidential appointee, shielded from political accountability) to issue detention orders (DOs), instead of the Minister of Defence as in the current PTA. S. 26 makes the Magistrate a rubber stamp: where “a Detention Order has been issued in terms of section 29 and is placed before the Magistrate for inspection, the Magistrate shall, subject to the provisions of section 27, make an order to give effect to such Detention Order.” S. 27 does not allow the judge to refuse to give effect to the DO. |
| 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. | Not if detained under s. 29, which is likely to be most common mode. |
| 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. | Not under PTSB. |
Under the draft, the politically appointed Secretary to the Ministry of Defence will issue detention orders under section 29. The magistrate will have no authority to modify or decline to implement of the DO. This is non-compliant with ICCPR Article 9(3). At a minimum, the magistrate must have authority refuse to implement or to modify the DO. Ideally, the “judge” referred to in the ICCPR would a High Court judge who is more likely to exercise his/her discretion withstanding pressure from the executive.
Defining terrorism
Previous submissions to the Committee pointed out the futility of trying to define terrorism and the dangers of overbroad definitions. The solution devised by Attorney at Law Ermiza Tegal to limit the PTA substitute to the provision of procedural exceptions applicable to existing offences that fit within the scope of terrorism set out in other legislation was proposed as an alternative. There are at least 15 Acts such the 1966 law pertaining to weapons, and offences related to aircraft, airports and maritime transport.If so desired, the committee may also include the UN Conventions on terrorism in a schedule of the Act and leave room for future legislation seeking to operationalize international law.
In this legislative design, the terrorism legislation will not include any substantive offences. It will be solely focused on exceptions to procedures re arrest, detention, etc. The new law read together with the specifically mentioned Acts will serve as the basis for terrorist investigations and prosecutions.
Normalizing the exception
Pragmatists recognize the need for states of exception to deal with extraordinary circumstances such as natural or human-made disasters, including terrorist attacks. A reasonable person can appreciate the difficulties of investigating terroristic offences and gathering evidence to successfully convict perpetrators.
It would be helpful to see what kinds of laws were used from the moment the bombs were set off on 21 April 2019. Within hours, calls had been traced and the house in Dematagoda surrounded. All these actions were taken under the provisions of the Public Security Ordinance (Chapter 140). That is the purpose of laws such as the Public Security Ordinance. In an extraordinary situation, actions normally not allowed are permitted. The seriousness of the exception is acknowledged by the provision in the 1978 Constitution that requires Parliament to approve such a declaration within a month and only for a month at a time.
The PTSB seeks to normalize the state of exception. All sorts of actions that are possible currently through emergency regulations made are to be made legal for normal times. The executive can proscribe organizations, impose movement restrictions, declare places as “prohibited places,” impose nationwide and local curfews, and so on. Not under emergency, but at any time. Without checks and balances. At the whim of the President or his appointees. No Parliamentary approval required. These provisions make the Constitutional safeguards applicable to a state of emergency meaningless.
In conclusion
The draft PTSB is not compliant with international norms and violates our Constitutional design. It will endanger exports to Europe that are even more important now in light of the risks associate with exports to the US. Because India will have zero tariffs in sectors important to Sri Lanka, the consequences will be worse than in 2010.
Disclaimer: The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official position of this publication.
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