Protection of the State from Terrorism Act: A critique of the current proposal

The current draft, Protection of the State from Terrorism Act, (PSTA), which has been in the making for almost a year, was published in December 2025.

- By Professor G.L. Peiris

Notwithstanding the high level of expectation which it had generated, regrettably, the draft Bill fails, in fundamental respects, to advance the law towards justice and freedom.

One of the main weaknesses of the draft legislation is that it is entirely unsuccessful in addressing the pivotal issue of the legitimate boundaries of an extraordinary system of criminal liability which displaces seminal rights inherent in the Rule of Law.

In all democratic cultures, it is recognised that imperatives of security in extreme circumstances call for measures incompatible with guarantees of freedom upheld by the regular law. The lines of demarcation, however, are of overriding importance. From this standpoint, the proposed legislation is a singular disappointment.

Structurally, in its very foundation, it contravenes criteria imposed by international human rights law. This is starkly evident in the approach of the draft Bill to definition of the mental ingredient in terrorism-related offences, one of the critical factors in containing liability within appropriate limits.

International law requires, in this context, a hybrid mental requirement consisting of a dual-layered intention to cause death, serious bodily harm, or taking of hostages — but necessarily combined with the calculated intention of bringing about a reign of terror and intimidating the public. Both elements are compulsory requisites of liability for a terrorism-related offence. This fundamental postulate is breached by the proposed legislation which adopts the approach of requiring direct intention or knowledge in respect of the first element [section 3(1)], but regards the second as an oblique inference from a “consequence” such as the death of a person, hurt or hostage taking [section 3(2)]. Dramatic lowering of the threshold of responsibility by this mode of definition strikes at the root of the value system entrenched in international law.