COLOMBO — An examination of Sri Lanka’s proposed security legislation suggests that overlapping detention powers, broad definitions of crime and weakened evidentiary safeguards could undermine protections established under existing law.
Sri Lanka’s proposed Prevention of Organised Crimes Bill raises a question that goes beyond the Government’s stated intention of combating criminal networks. Why are exceptional investigative and detention powers appearing across several pieces of legislation at roughly the same time, even as similar provisions in other bills face criticism over their implications for civil liberties?
The Government argues that stronger legislation is needed to address organised crime, improve international cooperation and fulfil obligations arising from the United Nations Convention against Transnational Organized Crime.
Those objectives are legitimate. Organised criminal networks can threaten public safety, corrupt institutions and operate across national borders.
The difficulty lies in determining whether the proposed legal powers are sufficiently limited to those objectives.
Recent criticism by the Bar Association of Sri Lanka has reinforced concerns that the Bill could allow administrative detention for extended periods, weaken longstanding rules governing criminal evidence and expose people to exceptional investigative measures under definitions extending beyond conventional organised crime.
Viewed alongside the Protection of the State from Terrorism Bill and other legislative proposals, the organised crime legislation also raises a wider concern about the cumulative effect of the Government’s lawmaking programme.
A Possible Strategy of Overwhelming Opposition
The expression “flooding the zone” became associated with American political strategist Steve Bannon, a prominent figure in Donald Trump’s political movement.
Bannon argued that overwhelming opponents, particularly the media, with multiple simultaneous developments could reduce their ability to respond effectively to each one.
The relevance of that approach to Sri Lanka is not necessarily that the Government has deliberately adopted Bannon’s methods. No evidence establishing such a coordinated strategy has been presented.
Rather, the comparison describes the practical difficulty confronting those attempting to examine numerous legislative proposals within a limited period.
The measures attracting scrutiny include the proposed 22nd Constitutional Amendment, the Protection of the State from Terrorism Bill (PSTA), legislation concerning the registration and supervision of non-governmental organisations, the Prevention of Organised Crimes Bill (POCA), proposals relating to foreign terrorist fighters and amendments to the Poisons, Opium and Dangerous Drugs Ordinance.
Each raises distinct legal and policy questions.
Taken together, however, they place considerable demands on lawyers, civil society organisations, journalists and members of the public attempting to examine their implications.
Sri Lanka’s Constitution allows citizens to challenge the constitutionality of a Bill before the Supreme Court within a limited period after it is placed on Parliament’s Order Paper.
The commonly applicable period is 14 days.
Such a timeframe becomes especially demanding when several complex proposals require simultaneous examination.
Even where each Bill follows the legally prescribed procedure, the cumulative burden may reduce opportunities for meaningful public scrutiny.
That is the central concern behind the “flooding the zone” comparison.
The Legislative Version of Whack-a-Mole
A second comparison comes from the arcade game whack-a-mole, in which one target disappears only for another to emerge elsewhere.
Applied to legislation, the expression describes provisions challenged in one proposed law but subsequently appearing in another.
Consider executive detention orders.
The proposed Protection of the State from Terrorism legislation has attracted criticism because it retains powers allowing detention through executive authorisation rather than requiring a court to determine the necessity of detention before the initial order is issued.
Rights advocates have argued that judicial authority should replace administrative discretion in making such decisions.
Yet the Prevention of Organised Crimes Bill contains a comparable detention mechanism.
Under the organised crime proposal, detention orders may be issued by the Secretary to the Ministry responsible for the Sri Lanka Police.
The powers reportedly permit detention in periods of up to two months, extendable to a maximum of one year, with judicial oversight operating differently from the ordinary criminal process.
The concern is straightforward.
Even if critics succeed in restricting executive detention under terrorism legislation, a similar power could remain available through a separate organised crime law.
Whether the provisions would operate as interchangeable mechanisms in particular cases depends on their final wording, the offences involved and judicial interpretation.
Nevertheless, the overlap deserves examination before either Bill is enacted.
Investigative Powers Removed from One Bill Reappear in Another
The relationship between the two proposals extends beyond detention.
The December 2025 draft of the Protection of the State from Terrorism legislation contained provisions concerning access to information held by telecommunications, satellite service providers and digital platform companies.
Sections 53 and 54 attracted criticism because they contemplated investigative access through procedures involving applications made without the participation of the person concerned and, in certain circumstances, proceedings conducted privately.
Those particular provisions were removed from the later gazetted version of the terrorism Bill.
Their removal represented a response to objections about privacy, freedom of expression and the potential misuse of surveillance powers.
The organised crime proposal, however, contains provisions dealing with communications information and access to data.
Of particular concern is Section 44, including subsection 44(4), which the original legal analysis identifies as permitting a senior police officer, not below the rank of Deputy Inspector General, to obtain specified information concerning communications-service users without first obtaining a magistrate’s order.
The full scope of that authority must be assessed against the categories of information covered, conditions for its use and available safeguards.
It is not necessarily equivalent to unrestricted access to the content of private communications.
Even so, powers enabling authorities to establish subscriber identities, communications connections or location-related information without prior judicial approval have significant privacy implications.
The resemblance between provisions appearing in different bills raises an important question: are protections gained through amendments to one law being weakened by exceptional powers introduced through another?
Prevention of Organised Crimes Bill and Broad Definitions
The most fundamental concern involves the scope of offences covered by the proposed organised crime legislation.
Section 3 extends its application to specified offences, those included in the First Schedule and other offences carrying a maximum sentence of imprisonment of four years or more, where the relevant offence is committed by a member of an organised criminal group.
The four-year threshold is significant.
It means that offences outside the conventional public understanding of organised criminal activity may potentially fall within the proposed framework if the other statutory conditions are satisfied.
The First Schedule also refers to offences established under numerous existing laws, including legislation concerning antiquities.
Recent legal commentary has highlighted the inclusion of offences relating to copyright, trademarks, excise, forestry and gambling regulation.
It would be inaccurate to suggest that every offence punishable by four years’ imprisonment automatically activates every power under the Bill.
The proposed legislation also requires a connection with an organised criminal group as defined by the statute.
The criticism concerns how broadly that additional requirement has been drafted and how it might operate in practice.
If the definition is sufficiently expansive, activities not ordinarily associated with violent criminal syndicates could become subject to exceptional procedures.
That possibility should be examined before Parliament extends detention and investigative powers across such a broad range of conduct.
Could Ordinary Associations Be Caught by the Law?
Section 66 defines an organised criminal group by reference to three or more people acting together over a period of time for the purpose of committing serious offences to obtain a financial or other material benefit.
The accompanying definition of a structured group does not require formally assigned roles, continuous membership or a developed organisational hierarchy.
Such wording resembles terminology used in international instruments addressing organised crime.
It also reflects the reality that modern criminal networks do not necessarily maintain formal membership lists or rigid command structures.
The concern arises when these flexible characteristics are combined with a broad definition of serious crime.
Police investigators may have to determine whether persons participating in loosely organised activities satisfy the elements required by the statute.
An association of three or more people, by itself, would not establish membership of an organised criminal group. The law also requires the relevant criminal purpose and other statutory conditions.
Nevertheless, uncertain boundaries could expose individuals and organisations to investigation under powers intended for substantially more dangerous criminal enterprises.
Safeguards against arbitrary interpretation therefore matter as much as the wording of the offences themselves.
Executive Detention and the Right to Liberty
The proposed detention regime is one of the most serious issues requiring parliamentary scrutiny.
Under ordinary criminal procedure, judicial oversight serves as a safeguard against arbitrary deprivation of liberty.
Administrative detention allows an executive authority to authorise a person’s continued confinement without requiring the same initial judicial determination.
The Bar Association has warned that the Prevention of Organised Crimes Bill would permit a ministry secretary to issue detention orders for periods of up to two months at a time, subject to an overall maximum of one year.
It has also criticised restrictions affecting access to bail.
These provisions must be considered in light of the Constitution and Sri Lanka’s international human rights obligations.
Article 9 of the International Covenant on Civil and Political Rights protects individuals against arbitrary arrest and detention and recognises the right to challenge the lawfulness of detention before a court.
The existence of a statutory detention power does not automatically establish that every use of it would violate international law.
The concern is whether the legislation provides sufficient independent oversight, access to legal representation, clear grounds for detention and effective remedies against abuse.
Those safeguards become particularly important where the definition of offences bringing individuals within the legislation is broad.
A person ultimately acquitted of wrongdoing may nevertheless have spent a substantial period deprived of liberty.
Acquittal cannot restore that lost time.
Confessions and the Protection of Criminal Evidence
A further concern involves rules governing statements made by suspects during criminal investigations.
Sri Lanka’s Evidence Ordinance contains safeguards intended to protect the reliability and voluntariness of confessions.
Section 24 addresses confessions obtained through inducement, threat or promise.
Other provisions also restrict the admissibility of confessions made to police officers or while a person is in police custody, subject to applicable exceptions.
The proposed organised crime legislation contains special evidentiary provisions that critics argue could weaken the ordinary protections applying to statements obtained during investigations.
The Bar Association has specifically expressed concern about provisions allowing certain statements signed by accused persons in police custody to be used against them.
Such exceptions are especially sensitive when combined with extended detention and substantial investigative powers.
The reliability of criminal evidence depends not only on whether a statement has been recorded but also on the conditions in which it was obtained.
Any departure from ordinary evidentiary safeguards requires a clear justification and effective protection against coercion.
A law intended to strengthen prosecutions should not do so by undermining the fairness of the process used to obtain convictions.
Could Organised Crime Powers Overlap with Terrorism Laws?
The relationship between the organised crime proposal and terrorism legislation deserves particular attention.
Minister Vijitha Herath previously informed Parliament, according to the source commentary, that existing Prevention of Terrorism Act powers had been used in 2025 against organised crime and underworld activity rather than exclusively against suspected terrorists.
That reported use was presented as an interim approach to confronting serious criminal threats.
The proposed organised crime legislation could create a different form of overlap.
Where conduct satisfies the statutory elements of both terrorism and organised crime offences, investigators may seek to use powers available under more than one legislative framework.
Whether such overlap would be permissible in an individual case depends on the final statutes and judicial interpretation.
The concern is that restrictions imposed on exceptional investigative powers under one law might become less effective if comparable powers remain available under another.
This is not proof that the Government intends to use organised crime legislation against peaceful political opponents.
It is an argument for ensuring that the law’s definitions and safeguards are sufficiently precise to prevent such misuse.
The distinction between genuine organised criminal conduct and constitutionally protected political activity must remain clear.
Is Another Criminal Law Necessary?
A final question concerns the necessity of creating a separate legislative framework.
Sri Lanka’s Penal Code already addresses conduct involving abetment, criminal conspiracy and unlawful assembly.
Other statutes provide powers to investigate and prosecute particular offences, including financial crimes and violations involving public property.
Critics argue that those existing provisions could be strengthened without introducing a substantially broader detention regime.
The Government offers a different justification.
Its stated objective is to implement obligations arising from the United Nations Convention against Transnational Organized Crime, strengthen national and international cooperation and create a more effective framework for confronting sophisticated criminal networks.
That argument deserves consideration.
Traditional criminal laws may not fully address the structure, financial arrangements and cross-border activities of contemporary organised crime.
Yet identifying a genuine enforcement gap is only the beginning of the legislative task.
The Government should explain precisely which deficiencies cannot be resolved through existing laws, why extraordinary detention and evidence provisions are necessary, and how those powers will be prevented from extending into unrelated conduct.
The Bar Association has also criticised the lack of adequate public consultation during the preparation of the organised crime legislation.
Meaningful consultation would allow practising lawyers, judges, investigators, academics, rights organisations and affected institutions to test the proposal against practical and constitutional requirements.
The Real Question Is Whether Safeguards Survive
Sri Lanka needs effective laws against organised crime. It also needs a criminal justice system that protects the public from arbitrary detention, coerced evidence and excessive executive power.
These objectives are not mutually exclusive.
The central issue is whether the proposed legislation strikes an appropriate balance between them.
The appearance of comparable powers across several bills creates a legitimate concern about how the broader legislative programme may operate once its different parts are combined.
Calling this a deliberate “flooding the zone” strategy remains a political interpretation. The legislative overlap itself, however, is a concrete matter requiring examination.
Before proceeding, the Government should publish a clear explanation of how the proposed laws interact, identify the safeguards applicable where their powers overlap and provide adequate opportunity for independent scrutiny.
Parliament should also require a convincing explanation for departures from established criminal procedure.
The test of effective lawmaking is not simply whether additional powers help authorities pursue offenders.
It is whether those powers can be exercised without placing the liberty and legal protections of innocent citizens at unnecessary risk.
SOURCE:- PRAJA.LK
