Several Special Determination petitions have been filed in the Supreme Court challenging the constitutionality of the Prevention of Organised Crime Bill, arguing that it would undermine judicial independence, deny suspects a fair trial and create conditions conducive to torture.

Among the petitioners is the Law and Society Trust (LST), which asks the court to determine that the Bill as a whole — or several of its provisions — is inconsistent with the Constitution, and therefore requires a two-thirds majority in Parliament and approval at a referendum to become law, the Daily Mirror reported.

The Bill was published as a Gazette Supplement on 6 October and tabled in Parliament on 20 October. It is intended to give effect to the UN Convention Against Transnational Organised Crime and to support cooperation in investigating and prosecuting serious offences.

The core objection: a term the Bill does not define

LST argues the Bill introduces uncertainty by failing to define “organised crime” while granting police extensive powers of arrest, search and questioning.

It points to a gap between two clauses. Clause 3 limits the law to serious crimes committed by members of organised criminal groups — but Clause 17 lets any police officer arrest any person on reasonable suspicion of a serious crime, regardless of whether that person belongs to such a group. On the petitioners’ reading, the limiting clause does not in practice limit anything.

Magistrates required to give effect to executive orders

The petition contends the Bill would transfer judicial power to the executive. Under Clause 20, a magistrate must give effect to a detention order issued by the executive, or remand the suspect if no such order is produced, and loses the power to grant bail or to question the grounds of arrest when a suspect first appears.

Clause 32(2) compounds this: an officer producing a suspect for the first time is not required to furnish a B report to court — the document that would ordinarily tell a magistrate the circumstances of the arrest.

Clauses 46 to 50 are said to remove Evidence Ordinance safeguards, including restrictions on the admissibility of confessions and statements made by suspects.

Detention periods, and a figure to read carefully

LST states the Bill permits detention at police stations for up to one year, for up to six months where a person is already in remand or prison custody, or until the conclusion of a trial. Combined with the proposed admissibility of confessions, it argues, prolonged police detention could create conditions conducive to torture, contrary to Article 11 of the Constitution.

Readers should note these are the petitioners’ characterisations of clauses cited in their own submissions. This desk’s earlier clause-level reporting set out the detention architecture differently — executive detention in two-month blocks under one clause, with a further period on remand before indictment under another. The figures quoted by different parties are not necessarily in conflict; they count different things. The Supreme Court is being asked to resolve exactly this.

Objections were also raised to Clause 65, said to override attorney-client confidentiality by requiring disclosure of information on serious crimes notwithstanding professional duties — which, the petition argues, could expose defence lawyers to criminal liability and discourage suspects from seeking representation. Clauses 21, 22, 25 and 27 on detention powers and provisions on restriction orders, which the petition says could limit movement and communication indefinitely through repeated extensions, are also challenged.

Counsel Ermiza Tegal, with Thahira Cader, Mark Schubert, Vihangi Liyanagamage, Nisara Wickramasinghe, Oshadhi Ganisha Hapuarachchi and Alagaratnam Jinoshan, instructed by Tharmarajah Tharmaja, appeared for the petitioner.

Context

The Bill has drawn sustained objection since it was gazetted. The Human Rights Commission called for its withdrawal, the Bar Association raised concerns alongside the PSTA Bill, and Human Rights Watch, Amnesty International and PAFFREL have each objected in turn. Twenty-two petitions were separately filed against the companion PSTA Bill.

Not reported

The filing does not state how many petitions have been lodged against this Bill, who the other petitioners are, when the Supreme Court will take them up, or whether the Attorney General has responded. No other verified newsroom had carried the petitions at the time of writing; the report is by the Daily Mirror’s legal correspondent Lakmal Sooriyagoda. The copy carries a “Colombo, Oct 30” dateline while the page’s structured data gives a publication time of 9.07 a.m. on 31 October; the later stamp is used here.

Update, 2 November: two journalists file, and the clauses they are challenging

One of the questions recorded above — who the other petitioners are — now has an answer. Special Determination petitions are “mounting” before the Supreme Court, the Daily Mirror reported on Monday, with petitioners arguing that several provisions could undermine fundamental rights, judicial oversight and media freedom.

Among them, two journalists — Tharindu Uduwaragedara and Mohamed Fazeer — have filed a further petition seeking a declaration that several clauses are inconsistent with the Constitution. They are represented by Gowry Shankari Law Associates.

Clause 56 and public-interest reporting

The journalists’ central objection is to Clause 56, which criminalises the disclosure of information likely to prejudice an investigation conducted or proposed under the Act.

They accept that the provision carries certain protections for legal communications, and a defence based on the absence of knowledge or reasonable grounds for suspicion. What it does not contain, they argue, is any express protection for public-interest reporting. The breadth of the clause, they say, could create uncertainty for journalists, family members and others seeking to disclose information about an investigation — and is inconsistent with Articles 12(1) and 14(1)(a) of the Constitution, the equality guarantee and the freedom of speech guarantee.

The other clauses challenged

The petitioners argue that several further provisions confer excessive powers on law enforcement and executive officials while restricting judicial supervision of investigations and detention.

How this sits with the detention figures above

The detention periods in Clause 20 are measured in hours; the periods described in the earlier petition reported above — up to a year at a police station, six months where a person is already in custody — are measured in months. These are not competing accounts of the same provision. They describe different stages: Clause 20 governs the initial period before a suspect first appears before a Magistrate, while the longer periods concern detention authorised thereafter.

The caution recorded above therefore still stands, and is reinforced. Different parties quoting this Bill are counting different things, and the figures should not be compared directly. That is among the matters the Supreme Court is being asked to resolve.

Still not reported

The number of petitions lodged against the Bill is still not stated — Monday’s filing says only that they are mounting. No date for the Supreme Court to take them up is reported, and no response from the Attorney General has been filed publicly.

Update, 4 November: 26 petitions, a named bench, and the hearing begins

The two questions left open above — how many petitions, and when the court would take them up — are now both answered.

Twenty-six Special Determination petitions have been filed against the Prevention of Organised Crimes Bill, the Daily Mirror reported on Wednesday morning. Chief Justice Preethi Padman Surasena nominated a three-member bench to hear them, with the Chief Justice presiding alongside Justices Achala Wengappuli and Sampath Abayakoon.

The petitions were listed for 10 a.m. on Wednesday, and Hiru News reported shortly after that the court had begun considering them.

What the count tells us

Twenty-six exceeds the 22 petitions filed against the companion Protection of the State from Terrorism Bill, and is close to the 30 lodged against this year’s cricket administration Bill. Both figures are worth holding in mind: this is a heavily contested Bill, but not an unprecedented one in volume.

The two security Bills are being challenged in parallel, and the stakes are not confined to the courtroom. Former Foreign Minister G.L. Peiris warned on Tuesday that the package could put Sri Lanka’s EU GSP+ concession at risk, and the Ceylon Chamber of Commerce had raised the same concern in October.

What remains unreported

Neither Wednesday filing names the other petitioners beyond those recorded above, reports what was argued at the hearing, or gives a date for the court’s determination. No position from the Attorney General has been reported, and neither filing states the deadline by which the court must communicate its determination to the President and the Speaker.

Nor does either filing say whether the 26 figure is final: the Daily Mirror’s wording is that 26 petitions have been filed “so far”.

Update, 4 November: what was argued — “the President or the Government has been misled”

The question left open above — what was argued at the hearing — now has an answer.

President’s Counsel Romesh de Silva, appearing for journalist Malinga Chandana Peiris, told the three-judge bench on Wednesday that it appears some party misled the President or the Government in drafting the Prevention of Organised Crime Bill, Hiru News reported.

The bench is as recorded above: Chief Justice Preethi Padman Surasena with Justices Achala Wengappuli and Sampath Abeykoon.

The preamble argument

De Silva’s central submission was that the Bill does not do what its own preamble says it does. The preamble states the Act is being brought to domesticate an international convention in Sri Lanka — but, he argued, the Bill does not properly carry out that task.

A number of matters not contained in the convention have been inserted into the Bill, he said, and in places it goes beyond the convention’s specific provisions and is drafted in a manner contrary to them. The Bill creates three categories of offence, a classification he said does not conform to the convention’s method.

Intellectual property in the Schedule

De Silva drew particular attention to the inclusion of the Intellectual Property Act in the Bill’s Schedule, which he said would allow copyright and trademark infringements to become serious offences under this Act. Offences such as theft and bribery could likewise be classified as serious crimes.

“If a person commits an offence under the Intellectual Property Act, or under the Excise Act, or an offence relating to trademarks and so on, they can be arrested and remanded under this Act. The boundaries of the definition of serious crimes are not clearly stated here.”

Any police officer could arrest a suspect for such offences, he said, after which senior officers could obtain detention orders through the Secretary to the Ministry of Defence.

The magistrate’s position, and a clause number to note

“The clauses of this organised crime Bill directly violate provisions of the Constitution. Under clause 44 of this Act, when a person is produced without a detention order, there is nothing a magistrate can do other than remand them. Under the clauses of the Bill, the interpretation of ‘detention order’ is not clear. On the other hand, ‘serious crime’ has not been clearly defined.”

Where a suspect is produced without a detention order, he argued, the magistrate is obliged to remand them, with no possibility of granting bail.

Readers should note the clause number. The petitions reported above located this same objection — a magistrate stripped of discretion — in Clause 20; de Silva cites Clause 44. This desk is not in a position to reconcile the two references from the filings available, and does not treat either as settled.

The relief sought

These provisions severely restrict judicial power and seriously affect personal liberty, de Silva submitted. He therefore asked the court to determine that the Bill is wholly inconsistent with the Constitution and, because it does not conform to the convention it claims to implement, requires both a two-thirds majority in Parliament and approval at a referendum.

He invited the court’s attention to a well-known liberty case, in which he said the then Chief Justice held that the liberty of the person is important and that the executive cannot obstruct it by its own decisions. The case name appears in the Sinhala filing only in transliteration — rendered there as Bresgard — and this desk has not confirmed the citation; the wording and subject matter are consistent with the 1937 Bracegirdle habeas corpus case, but that identification is an inference and is not asserted here. De Silva went on to cite former Chief Justice Samarakoon, but the available copy of the filing is truncated at that point and the submission is not reproduced.

What is still unreported

The filing does not report submissions by any other counsel, any response from the Attorney General, or any observation or question from the bench. It does not say whether the hearing concluded on Wednesday or continues, gives no date for the court’s determination, and does not state the deadline by which the determination must be communicated to the President and the Speaker.

Update, 4 November night: the hearing concludes, written submissions ordered

The question left open above is now answered: the hearing has ended. Consideration of the 26 petitions concluded on the night of 4 November, Hiru News reported at 11.44 p.m.

The bench ordered written submissions on the issues raised by the petitioners to be filed before 4 p.m. on Thursday 5 November, and the Attorney General’s written submissions to be filed on Monday 9 November.

The bench and the relief sought

The petitions were heard by a three-judge bench of Chief Justice Preethi Padman Surasena, Achala Wengappuli and Sampath Abeykoon — the same composition reported earlier in the week.

Hiru identifies the petitioners as including the Bar Association of Sri Lanka, alongside several other parties, and states the relief sought in the same terms recorded throughout: a determination that the Bill can be passed only with a two-thirds special majority in Parliament and approval at a referendum.

Still unreported

No date is given for the court’s determination, and the filing still does not state the constitutional deadline by which it must be communicated to the President and the Speaker. The ordering of the two submission deadlines — petitioners on the 5th, the Attorney General on the 9th — is reported without explanation. The filing carries no indication of the bench’s thinking and no account of the Attorney General’s oral position.

Update, 5 November: a second counsel, and an intellectual property clause

The gap recorded immediately above — that no submissions by counsel other than Romesh de Silva had been reported — is now partly filled. A further account of the concluded hearing, published by Hiru News at 7.28 a.m. on Thursday, carries submissions from a second counsel and an argument from de Silva not previously reported.

It confirms the deadlines and the bench as recorded above: written submissions before 4 p.m. on 5 November, the Attorney General’s on the 9th, before Chief Justice Preethi Padman Surasena, Achala Wengappuli and Sampath Abeykoon.

De Silva submitted that the Bill creates three categories of offence, and that this classification does not follow the methodology of the international convention the Bill is said to implement.

He then pointed to the Bill’s schedule. Because the Intellectual Property Act is listed in it, he argued, infringements of copyright and trademarks could themselves become serious offences under this legislation.

That matters because of the arrest and detention powers already recorded above, which de Silva tied directly to it: any police officer would have the power to arrest a suspect for such an offence, after which senior officers could obtain detention orders through the Secretary to the Ministry of Defence. On his argument, the schedule’s reach and the detention machinery combine — a trademark or copyright infringement would carry the arrest and detention consequences the Bill attaches to organised crime.

Women and children are absent from the Bill, a second counsel argues

Attorney Suhasthika Arulingam, also appearing for petitioners, submitted that the primary victims of organised crime are women and children, and that the Bill contains no reference to them at all. A specific provision on the trafficking of women and children is needed in the legislation, she told the court.

This is the first submission by any counsel other than de Silva to be reported in the filings available to this desk.

Still unreported

The gap is only partly closed. The filing still reports no response from the Attorney General, no observation or question from the bench, and no date for the court’s determination, and it does not state the constitutional deadline for communicating that determination to the President and the Speaker. It does not say how many counsel appeared in total, so it remains unclear whether de Silva and Arulingam were the only two to be heard or only the two reported.

The clause-number discrepancy recorded earlier — Clause 20 against Clause 44 for the objection that a magistrate is left with no discretion — is not addressed by this filing either, and remains unresolved.

Update, 5 November: the Bar Association’s counsel named, and two clause numbers supplied

A later Daily Mirror filing on the same hearing answers one of the questions left open directly above — whether de Silva and Arulingam were the only counsel heard — and attaches clause numbers to objections recorded above without them.

The Daily Mirror reported on Thursday that President’s Counsel Romesh de Silva appeared on behalf of senior journalist Malinda Seneviratne — the first identification in these filings of the petitioner he represented.

Clause 21 and the erosion of judicial power

De Silva submitted that Clause 21 effectively undermines judicial power by empowering police officers and a Ministry Secretary to make decisions on detention orders. Vesting that authority in police officers without adequate judicial supervision, he argued, would undermine individual liberty and amount to an erosion of judicial power.

This supplies a clause number for the detention-order objection recorded throughout the sections above, where the filings available earlier gave the substance but not the provision.

He also contended the Bill is inconsistent with the United Nations Convention against Transnational Organized Crime: the Convention provides for bail, while the Bill effectively denies it for offences within its ambit.

A third counsel: the Bar Association on court reporting

President’s Counsel Saliya Pieris, appearing for the Bar Association of Sri Lanka, challenged Clause 14(3), which restricts the reporting of judicial proceedings conducted under the proposed law without prior permission from the court. The provision would prevent court journalists from reporting on proceedings unless they first obtained the court’s approval, he submitted.

Pieris is the third counsel to be reported, which answers the question above: de Silva and Arulingam were not the only two heard.

He also drew the court’s attention to Clause 4(2) — the provision recorded earlier permitting membership of an organised criminal group to be inferred from dress, tattoos, hand signals, language, associations and visits to particular premises — describing it as criminalising individuals on the basis of their associations and appearance. The Daily Mirror notes the range of circumstances the clause lists is non-exhaustive.

Two restrictions on reporting, not one

Note that this is a second press-freedom objection, distinct from the Clause 56 point recorded in the 2 November update. Clause 56 concerns public-interest reporting; Clause 14(3) concerns reporting court proceedings without prior judicial permission. Both are before the court.

Still unreported

This filing still records no response from the Attorney General, no observation from the bench, and no date for the court’s determination. It confirms the bench as Chief Justice Preethi Padman Surasena with Justices Achala Wengappuli and Sampath Abayakoon, and the petition count as 26, both as recorded above.

Update, 5 November: the Attorney General’s position is due on Monday, and the government offers three amendments

The gap flagged in every update above — that no position from the Attorney General had been reported — now has a date.

The Attorney General is to present the government’s position on the petitions challenging the Bill to the Supreme Court on Monday 9 November, Hiru News reported at 4.31 p.m. on Thursday.

This matches the deadline recorded in the 4 November night update, where the bench ordered the Attorney General’s written submissions to be filed on the 9th. What is new is the characterisation: the filing describes those submissions as the government’s position, not merely the State’s written response. The bench is confirmed once more as Chief Justice Preethi Padman Surasena with Justices Achala Wengappuli and Sampath Abeykoon, and the count again as 26 petitions seeking a determination that the Bill requires a special majority and a referendum.

A date discrepancy in Hiru’s own filings

Note a conflict within one outlet’s coverage. Hiru 498447 and 498459 report that consideration of the petitions concluded on the night of 4 November. This filing states the petitions were called before the Supreme Court and taken up for hearing today (05). Both cannot be straightforward descriptions of the same event. The likeliest reading is that the matter was listed again on the 5th for the submission deadlines to be recorded, but the filings do not say so, and this desk does not treat either account as settled.

The government moves before it files

Separately and on the same afternoon, President Anura Kumara Dissanayake signalled that the government is prepared to amend three provisions of the Bill: reducing the police detention period from 72 hours to 48 hours, removing the provision on tattoos and identifying marks, and revisiting matters relating to offences under the Excise Ordinance. That is reported in full separately.

Two of those three correspond directly to submissions recorded above — Saliya Pieris on Clause 4(2) and the inference of gang membership from tattoos, and Romesh de Silva on the schedule sweeping Excise and Intellectual Property offences into the Bill’s reach. The concessions were announced before the Attorney General files, which means the position put to the court on Monday may not be a defence of the Bill as drafted.

Still unreported

No date is given for the court’s determination, and no filing yet states the constitutional deadline for communicating it to the President and the Speaker. Nothing reported says whether the proposed amendments will be placed before the court, moved at committee stage in Parliament, or both. The clause-number discrepancy recorded earlier — Clause 20 against Clause 44 for the loss of magisterial discretion — remains unresolved.

Update, 5 November evening: the Attorney General’s oral position, and who appeared

The longest-running gap in this article — that no filing recorded any response from the Attorney General or any observation from the bench — is now closed on the first count. A NewsFirst account of the concluded hearing, published at 6.15 p.m. on Thursday, reports what the State told the court.

Following the conclusion of the petitioners’ arguments, Solicitor General Viraj Dayaratne PC, appearing for the Attorney General, informed court that the concerns raised by the petitioners could be considered.

That is a significant disclosure. Every previous filing recorded the petitioners’ case and the submission deadlines but nothing from the State. The Attorney General’s position, delivered orally in court before any written submission is filed, was not a defence of the Bill as drafted — it was an indication that the objections were open to accommodation. It was also made on the same afternoon the President announced three proposed amendments, and it precedes the written submissions due on the 9th.

Counsel on record

The filing supplies the roster that earlier accounts omitted. Appearing for the petitioners were President’s Counsel Sanjeewa Jayawardena, Saliya Peiris, M.A. Sumanthiran, Eraj de Silva, Ali Sabry and Naveen Marapana, together with Attorneys-at-Law Suren Gnanaraja, Lakshan Dias, Rukshan Senadheera and Ruwantha Cooray.

Appearing for the Attorney General were Additional Solicitor General Sudarshana de Silva, Deputy Solicitor General Sudarshi Herath, Dr Avanthi Perera, and Solicitor General Viraj Dayaratne PC.

This confirms that Romesh de Silva PC, whose submissions were reported at length earlier in the week, was one of a large bar appearing across the 26 petitions, and it independently confirms Saliya Peiris PC’s appearance — the counsel whose argument on tattoos and the inference of gang membership maps onto one of the President’s three concessions.

What this filing confirms, and one thing it muddies

It confirms the count at 26 petitions, the Bar Association of Sri Lanka among the petitioners, the relief sought — a determination that the Bill requires a two-thirds majority and a referendum — and the bench as Chief Justice Preethi Padman Surasena with Justices Achala Wengappuli and Sampath Abeykoon. It confirms the Attorney General’s written submissions are due on the 9th.

On the petitioners’ own deadline, however, the filing contradicts itself within a few paragraphs: it first says the bench directed written submissions before 4.00 p.m. today, then says before 4.00 p.m. tomorrow. Both appear in the same account. The date discrepancy flagged in the update above — Hiru placing the conclusion on the night of the 4th and the hearing again on the 5th — now has a parallel inside a second outlet’s copy, which suggests the confusion is a reporting artefact of a matter listed across two days rather than a disagreement about the facts. The 4 p.m. hour is consistent everywhere; only the day is unstable. This desk continues to treat the deadline as 4 p.m. on 5 November, as recorded above, and does not regard the point as settled.

Still unreported

No filing yet records any observation or question from the bench, any date for the court’s determination, or the constitutional deadline for communicating it to the President and the Speaker. The Clause 20 against Clause 44 discrepancy remains unresolved. Nothing reported says whether the government’s three proposed amendments will be placed before the court on the 9th or moved only at committee stage.