Sri Lanka’s proposed Prevention of Organised Crimes Bill (OCB) has opened a troubling debate over how far the executive should be permitted to go in detaining citizens before a court independently determines whether their continued detention is necessary. The Bar Association of Sri Lanka (BASL) has warned that the legislation could allow extraordinary restrictions on liberty across an unexpectedly wide range of offences.
Under the Bill, a Detention Order may be issued by the Secretary to the Ministry responsible for the Sri Lanka Police Force. The order can authorise detention for periods of up to two months at a time, extending to a maximum of one year. The Magistrate is bound to give effect to the order, while bail is available only from the High Court.
The central concern is the absence of prior judicial determination. According to the BASL, no court decides whether detention is necessary before the order is issued. The association argues that this arrangement effectively bypasses judicial scrutiny at the critical point when a person’s liberty is taken away.
Detention powers are particularly sensitive because arrest and continued custody can have consequences long before guilt is established. A person may lose employment, suffer reputational damage, face financial hardship and experience disruption to family life even if the prosecution ultimately fails.
The danger, critics argue, is magnified when such powers are attached to a broad definition of serious crime. The OCB covers offences carrying imprisonment of four years or more and approximately 50 additional offences listed in its First Schedule, including certain intellectual-property, excise, forest and gambling licensing violations.
The definition of an organised criminal group also requires only three or more people acting together to obtain a financial or other material benefit. The group need not have formal roles, continuous membership or an elaborate structure.
The BASL questioned whether these provisions extend far beyond what is required to tackle organised criminal activity. The combination of a broad offence category and extensive detention powers makes the precision of the legislation crucial. Without clear limits, the reach of extraordinary measures could become difficult to predict.
The evidentiary provisions compound these concerns. The Bill permits statements signed by accused persons in police custody to be used against them and sets aside rules that ordinarily make confessions to police officers inadmissible. The BASL says these provisions, together with the detention regime, threaten the presumption of innocence and citizens’ freedoms of association and movement.
A further concern is the exclusion of people sentenced under the OCB from any early release scheme. The provision could limit opportunities for sentence-related relief regardless of whether comparable arrangements might otherwise be available.
The controversy also exposes a weakness in the legislative process. The BASL said there was no public consultation during preparation of the OCB and that it was neither consulted nor informed of the drafting. Such a process risks leaving serious constitutional and practical questions unanswered until after a law has been enacted.
The dispute extends to the proposed Protection of the State from Terrorism Bill (PSTA). The BASL said the gazetted version departs significantly from the draft approved by a committee appointed to review the Prevention of Terrorism Act. Its nominees reportedly said the changes were not referred back to the committee or brought to the attention of its chairman and members before publication.
The BASL has filed a Special Determination Application against the PSTA before the Supreme Court under Article 121 of the Constitution and called on the Government to withdraw both Bills in their present forms.
The underlying issue is not whether Sri Lanka needs stronger tools against organised crime and terrorism. It is whether those tools will operate within a framework of judicial independence, proportionality and accountability. When executive detention can extend for months without a court first deciding its necessity, the safeguards built into the final legislation become as important as the powers it grants.
