7 July, 2020

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Hejaaz Hizbullah, The Shining Young Attorney Held Incommunicado

By Mass L. Usuf

Mass Usuf

The dreaded Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA) has been in public discussion ever since it was enacted.  It was initially introduced in Parliament as ‘Temporary Provisions’ vide Section 29 of the Act which read:

“The provisions of this Act shall be in operation for a period of three years from the date of its commencement.”

Thereafter, this Temporary Provision paradoxically found a permanent abode, approximating four decades, by virtue of an amendment; “Prevention of Terrorism (Temporary Provisions) Amendment Act, No. 10 of 1982.  It now reads:

“Section 29 of the principal enactment is hereby repealed.”

Widely condemned as an equivalent of Draco’s law, this statute was passed under the watch of the JR Jayewardene Presidency. It was specifically designed to confer on the police wide powers relating to search, arrest and detention of suspects. United Nations and International Human Rights organisations have been campaigning for long calling the State to institute reforms to this abusive Act.

This column should not be construed as an effort or campaign supporting Hejaz or any others who had been arrested at different times since 1979.

Lawyer Hejaaz Hizbullah

Rule Of Law Or Rule By Law

Sri Lanka is known to be a democratic country. In keeping with that spirit, she has inter alia, judicial institutions, where it is ideally expected that the rule of law Supremes. At a High-level Meeting of the General Assembly on the Rule of Law on 19 September 2012, it reaffirmed that “human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.” The diktat is for world governments to ensure that accountability, equality and justice are upheld and promoted in order to protect and secure the rights of citizens. These comprise the utilitarian aspects of strengthening democracy.

Sri Lanka has showcased its idea of the rule of law in Chapter III of the constitution, dedicating it to Fundamental Rights. The universal norm is that no law can supersede the Constitution of the country. It is said, ‘The judiciary, which applies the law to individual cases, acts as the guardian of the rule of law. Thus, the need for an independent and properly functioning judiciary becomes a prerequisite for the rule of law which requires a just legal system, the right to a fair hearing and access to justice.’ 

Consequence Of Rule By Law

Statutes, Rules and Regulations, executive actions and policies of a government must be regimented to function under the rule of law. Where there is unconstrained substantive or procedural abuse disregarding law such exploits cease to be governed by this precept.  In these instances, the doctrine of rule of law dissipates giving way to the repressive and cruel rule by law.  The beginning of abuse is from this point.

In the background of the aforesaid, to quote a dictum from the British Legal Philosopher, H.L.A. Hart is appropriate.  It illustrates the timeless limbo of persons like Hejaaz Hizbullah and the many others who have been incarcerated under the dreaded PTA, at different times:

“A paralysed man watching a thief’s hand close over his gold watch is properly said to have a right to retain it as against the thief, though he has neither expectation nor power in any ordinary sense of these words.” (Hart, Essays in Jurisprudence and Philosophy, 1983).

Hart using the analogy of a paralytic draws attention to the condition of a person who has a right but cannot expect to assert that right and, the same person having  no power to proclaim his right. How many such ‘paralysed’ persons are languishing in custody? The distressed family members are asking where are the democratic minded citizens who are supposed to act to strengthen equity and justice?

Communication, A Basic Right 

This column does not intend to traverse the gamut of the right to communicate. It would suffice to suggest a few markers to get an understanding.

Article 19 of the Universal Declaration of Human Rights:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (United Nations, 1948).

Our Constitution, 14. (1) (a), states:

“Every citizen is entitled to the freedom of speech and expression including publication”.

This is a restricted right by virtue of Article 15 (7) (2) of the Constitution:

“The exercise and operation of the fundamental right declared and recognized by Article 14(1)(a) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.”

It is clear as daylight that this restriction does not contemplate a situation where a detainee wants to consult with his or her Attorney.

Role of the Judiciary

It is well known, at least theoretically, that the pillars of democracy consist of the Legislature, the Executive and the Judiciary and the strict separation of their functions. The objective is to ensure proper checks and balances and to prevent the concentration of power. Due to novel developments in the political landscape, there has evolved hybrid versions of this foundation. For example, the separation of powers has significantly become diluted between the legislature and the executive. It is only the judiciary that has been able to stand alone and maintain its independence although, several attempts have been made in the past to inhibit its authority.

At the Finland’s Presidency of the Council of the European Union conference held in Helsinki in September 2019, much emphasis was placed on the protection of the rule of law with special responsibility placed on the judiciary. It resolved:

“Rule of law is the cornerstone of all democratic societies. A proper system of checks and balances maintains the separation of powers, ensures accountability and enhances resilience. In order to maintain trust in public institutions, the principles of legality, legal certainty, prohibition of arbitrariness of the executive powers, judicial independence, impartiality, and equality before the law need to be respected. The role of national and European courts is crucial for ensuring effective judicial protection.”

Animal Rights

With regard to the Rights of Animals, Mahatma Gandhi said: “The greatness of a nation and its moral progress can be judged by the way in which its animals are treated.”  Interestingly, he juxtaposes the way animals are treated as a measurement of value to judge the greatness and moral progress of a nation. What characteristics of a nation can be judged based on the way humans are treated?

The rights of freedom and liberty of any person are too sacred to be sacrificed at the drop of a hat. American Jurist Ronald Dworkin argues, “If someone has a right to moral independence, this means that it is for some reason wrong for officials to act in violation of that right, even if they (correctly) believe that the community as a whole would be better off if they did.” (Lloyds Jurisprudence, 6th Edition, P. 434).

At a time when man is being silenced by man, it is strange to see and hear some people talking in the following terms, as seen in a poster with a picture of a dog:

“Animals have no voice.

They can’t ask for help.

They can’t ask for freedom.

They can’t ask for protection.

HUMANITY MUST BE THEIR VOICE.”

 

How confused can we be between the imperatives of treating animals and human beings?  It is ironic to note that in Sri Lanka, we are excessively worried about the rights of animals than the rights of human beings. 

State Of Limbo Unethical

Hejaz and many others who are under detention, most of them without the due process of law, also deserve this Voice Of Humanity. Apparently, the voice of humanity for the welfare of the humans themselves, seems pathetically lost or hypocritically ignored!  Apart from the voice of humanity, it is the duty of the government to treat its subject with equality and concern. 

The writer is clearly not campaigning for Hejaz or, for the others in custody under the PTA, that they are innocent. If they are found guilty by a court of law, let them be punished.The emphasis of this column is that suspects should be handled in accordance with the laid down legal procedures. Apply the rule of law and avoid rule by law.  Arbitrary actions are prohibited even under international law. Sri Lanka is an unconditional signatory to many international instruments protecting equality in multiple fields. See, Right to equality: The new frontier of judicial activism, by Deepika Udagama.   

The Geneva based Association for the Prevention of Torture (APT) in its monitoring guidelines on detention centers, states:

“Depriving a person of his or her liberty is a serious coercive act by the State, with inherent risks of human rights abuses. Through the loss of liberty, the detained person comes to depend almost entirely on the authorities and public officials to guarantee his or her protection, rights, and means of existence. The possibilities for persons deprived of their liberty to influence their own fate are limited, if not non-existent.”

Never Deprive

Neither does acceptance of the right of a person make that person noble nor does non-acceptance make that person ignoble. The basic rights of a person are intrinsic to his self as a person and is deep-rooted in the nucleus of his naturally endowed liberty. He should never be deprived of it by arbitrary action or the denial of justice but by the due process of the law.

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Latest comments

  • 15
    5

    All this racist regime must do is, give him his basic rights, give him access to his attorneys, state why they have arrested him, and treated him inhumanely.

    They are ignoring human rights groups, and international agencies, who have criticized this (racist) arrest, and have no answers as to why he has been arrested. Why is that such a difficult thing for this regime to do? If everything is above board, and if everything is according to our laws, why are they unable to give the country a simple answer as to why this man, has been arrested, behind bars, not given proper access to his attorney, unable to communicate in any way?

    What the hell are you doing Rajapaksa’s? Is this your idea of democracy, human rights, and showing the country you are not racists? You are going about it the WRONG way.

    Sri Lankans, who thought the last regime was bad, keep in mind, this lot will be far, far WORSE.

    • 5
      13

      Mr. Ashan,
      .
      EASTER SUNDAY BOMBING VICTIMS
      “….. had no voice.
      EASTER SUNDAY BOMBING VICTIMS
      ….. couldn’t ask for help.
      EASTER SUNDAY BOMBING VICTIMS
      ….. can’t ask for freedom.
      EASTER SUNDAY BOMBING VICTIMS
      ….. can’t ask for protection.
      EASTER SUNDAY BOMBING VICTIMS
      ….. application of law MUST BE THEIR VOICE.”
      .
      Writer missed some other quotes by A.D. Williams.
      .
      “”Animals don’t frighten me. Mankind does””
      .
      “”Not a single creature on earth has more or less right to be here.””

      • 10
        3

        Thousands of Tamil civilians up North had no voice, and the Rajapaksa’s ignore the voice of their families who ask for accountability. The Rajapaksa’s ADMIT 20,000 (their fake number) are missing, and no explanation. TWENTY THOUSAND KILLED BY THE RAJAPAKSA WAR CRIMINALS.
        Those responsible are given top posts, and these war criminals protected from being held responsible.

        How about the victims of Rathupaswela, who were begging for clean water? The Rajapaksa’s silenced their voices by shooting them.
        Any killers punished so far?

        How about Lasantha Wickrematunge’s voice, which was silenced when he was brutally killed by Rajapaksa goons? His family have still not found justice, in fact those killers have been rewarded with good jobs as a thank you.

        Where are the the members of the media and activists like Prageeth Eknaligoda and those taken away in white vans? Why are their families not being heard?

        That okay for trolls and Rajapaksa apologists? THEY ARE IGNORING THE VOICES OF THE FAMILIES OF THOUSANDS OF INNOCENT SRI LANKANS DEMANDING ANSWERS FOR DECADES.
        Hypocrites.

        • 2
          5

          Mr. Ashan,
          .
          “Thousands of Tamil civilians up North had no voice”
          Yes.
          That’s why we liberated them from LTTE.
          They had provincial councils until “Yahapalana setup” took it away.
          GR’s government will hold provincial councils election as early as possible.

    • 7
      10

      Mr Ashan
      Do you know the names of all involved in the plot?
      If not how do you exclude this individual?
      Because he is a lawyer?
      Because he is rich?
      Because he is a Muslim?
      We want this case investigated thoroughly.
      Police routinely take people into custody; some are released after investigation, some are charged in the courts, some are acquited by the courts.
      Let me ask you again.
      HOW do you know he is innocent?
      Why don’t you handover the list of names of ALL involved to the CID?

      Soma

      • 11
        2

        Soma,
        Do you know the names of all those involved in the plot?
        Do you know Mahinda Family and Sirisena involved in the constitutional plot in October 2018?
        Do you know who murdered Lasantha?
        How did you exclude Mahinda Family from this murder? Where is the CID?
        Have you charged this Muslim in the Courts?
        Why the CID did not arrest this lawyer for a year? where was the CID?

        • 3
          7

          He will be investigated, may be prosecuted and probably acquited by the courts -the step by step procedure a farmer, clerk or three-wheeler drive has to go through. Learn some basics Mr Ajith.
          Soma

      • 7
        4

        Take it up with Human Rights Watch:
        “Sri Lankan authorities should uphold due process rights and ensure that recently detained Muslim figures have proper access to lawyers, Human Rights Watch said today. The arrests, soon after the government adopted a Covid-19 funeral policy biased against Muslims, raise concerns about the safety of Sri Lanka’s Muslim minority.

        On April 14, 2020, the authorities arrested Hejaaz Hizbullah, a prominent lawyer, apparently under the draconian Prevention of Terrorism Act. He was one of six people, including the brother of a former minister and a customs official, whom police recently detained for their alleged involvement in the 2019 Easter Sunday bombings by an Islamist group, which killed over 250 people. Ramzy Razeek, a retired government official who has a following on Facebook, was arrested on April 9 after decrying religious discrimination in a social media post.

        “Sri Lankan authorities have a responsibility to prosecute those responsible for the horrific Easter Sunday attacks last year, but the arrests should be lawful, and not used to vilify an entire community,” said Meenakshi Ganguly, South Asia director. “The recent arrests of well-known Muslims, combined with biased government actions and rising anti-Muslim hate speech, raise concerns for the broader safety of the Muslim community.”

  • 8
    8

    How many innocent people instantly died?
    How many people suffered to death?
    How many are permanently disabled?
    How many families and friends are still suffering from the loss of their loved ones?
    What is the magnitude of the economic loss to the poor country and consequent effect on poor souls who were directly involved in tourism?
    Is the ideology still live and kicking?
    That is the Himalian reality WE face today mr. Mass Usuf.
    We HAVE to get to the bottom of the affair not only for the sake of justice but also for our safety. We live in fear.
    Now in this enormous task of uncovering this meticulously implemented dastardly crime woven around religious fundamentalism ‘fundamental rights’ of ONE PERSON is ‘possibly’ violated.
    Critically that person HAPPENS to be a Lawyer, a rich individual who is entitled for immunity and soft handling.
    Definitely this should not happen.
    WHICH HUMAN BREAST CAN BEAR THE THOUGHT OF THIS ‘INNOCENT’ INDIVIDUAL IS HELD ‘INCOMUNICADO’ !!
    Is everyone blind to this injustice?
    Where are gods? Where is Allah?
    On which planet we live?

    Soma

    • 7
      0

      somass

      “”””How many innocent people instantly died? How many people suffered to death?
      How many are permanently disabled? How many families and friends are still suffering from the loss of their loved ones?””””

      Too many, since 1958.
      My Elders who tend to keep records have lost count of tragedies that had not only killed and maimed innocent people but also obliterated the notion of truth and actual truthfulness.
      Let me jog your memory

      1956
      1958
      1961
      1971
      1974
      1977
      1981
      1983
      1987 and 1991
      1997 Kalutara prison riots
      2001 – Mawanella Riots
      2002 – Beruwala riots
      2012 Welikada prison riot
      2014 anti-Muslim riots
      2018 anti-Muslim riots
      2019 anti-Muslim riots
      between 1983 and 2015

      I apologise in advance if I have missed other serious incidents.

  • 15
    4

    In the Rajapaksa moral compass there is absolutely no difference between imprisoning an honest crusader for social justice and licking the corpse of a degenerate politician who took advantage of impoverished people as long as both actions bring them the votes. We have indeed entered the Orwellian world of ‘doublespeak’ and ‘alternative facts.’

    • 6
      1

      Good point. We have entered the dark ages where honest crusaders can be arrested without cause, not given any legal rights, proper representation, not given his day in court, not even informed of what charges he has been held for, and the warnings of International like Amnesty International, Human Rights Watch, and the International Commission of Jurists, disregarded, and ignored.

  • 4
    12

    Your Shining Young Attorney had met with one of the suicide bombers at a reputed hotel On a day close to April 21.
    .
    Your Shining Young Attorney had borne title deeds of various welfare societies and organizations alongside the suicide bombers.
    .
    Some suicide bombers had donated land and invested money into these organizations.

    • 3
      10

      And…..
      .
      The legal jargon must put human rights of the victims before surrounding a accused colleague simply because he is ‘one of them’.

  • 20
    8

    “Hejaaz Hizbullah, The Shining Young Attorney”…
    /
    Is the shine coming from all the explosives he is carrying in his backpack?
    /
    You can quote any legislation you like, but evidence shows he is as guilty (of terrorism) as sin. Just read what is coming out at the presidential commission to see what good work our CID has been doing (after that thief gooShani) was sacked.
    /
    Satyajith Andradi who is a promoter of a secular Sri Lanka affirms. His other ego, the real ‘poet’ however, is currently unhappy with the Rajapakse brothers for not giving him a Lakehouse editorial post (the scrunt obviously has a ridiculously high opinion about his stupid self) disagrees.
    /
    So Hizbullah will be in custody until ge faces the courts, charged under the PTA. Keep apologising for him

    • 5
      1

      Please share with commenters here from where you got your “wonderful” information that he carried a “backpack with explosives”, and before you make a fool of yourself further, make sure you give us credible links to support what you say. Commenters making wild accusations should be able to prove what they are claiming.

      While you are at it, you can also give us credible sources explaining what the “evidence” and charges of terrorism are, since you seem to be an “expert” on knowing it all. Thank you.

  • 2
    6

    Mr Ashan
    Do you know the names of all involved in the plot?
    If not how do you exclude this individual?
    Because he is a lawyer?
    Because he is rich?
    Because he is a Muslim?
    We want this case investigated thoroughly.
    Police routinely take people into custody; some are released after investigation, some are charged in the courts, some are acquited by the courts.
    Let me ask you again.
    HOW do you know he is innocent?
    Why don’t you handover the list of names of ALL involved to the CID?

    Soma

    • 8
      2

      “HOW do you know he is innocent?”

      Seems you are Ignorant of the Well Established Legal Principle that a ‘person is Innocent until Proven Guilty.’

      • 4
        0

        Muhandiram, it is under normal law that a person is innocent until proven guilty, and the onus of proving guilt lies on the state. In PTA a person is guilty unless proven innocent, and the onus of proving innocence lies on the accused. So do not blame the government when it applies PTA, but blame all your Muslim MPs who voted for its promulgation and subsequent extensions. Not a single Muslim MP objected to it, because it was against Tamils, and no Muslim lawyer appeared for Tamil accused. Muslims who turned a blind eye to PTA and when it is applied to Muslims are now voicing concerns. If you think that lawyer Hisbullah is innocent, please help to bring the real culprit, politician Hisbullah to face charges. Probably lawyer Hisbullah has not bribed top Sinhala politicians of both sides and top security personnel, and is facing this ordeal. Even if lawyer Hisbullah has financed terrorism through a trust chaired by him and had met few terrorists, that is a drop in the ocean compared to financing and support given by politician Hisbullah. Cardinal correctly said, even this government is not conducting investigations properly.

        • 0
          1

          Dr. Gnana

          Tks. for pointing out that the arrest was under PTA and not Normal Law.
          Well, even under PTA, doesn’t the person have any rights such as being produced in Court within 3 days of Arrest, Free Access to Lawyers etc.? Even when the Lawyers were allowed once, it was ONLY for 15 mins. and there were CID men nearby who made it anything but Free Access.

          Lawyer Hizbullah’s fault was being a trustee of a Charity which ran a Madrasah which, obviously, was Only One of the Charity’s Operations. The chances are, he had no idea of how the Madrasah was run and how accurate the information doing the rounds are about the Madrasah’s activities.

          As for the politician Hisbullah, he is a politician first and last. But, to accuse him of involvement in terror activities is something else.

          But, the WORST CULPRITS for the Easter Sunday Terror are the High and Mighty in the last Govt., from the President downwards , who have been given More than Enough Warnings and Time about the Impending Attacks but Did NOTHING to STOP it. Aren’t they as Bad or even Worse than the Terrorists themselves? How come they are Walking FREE and there is NOT Even mention about their Culpability? Why is that NO ONE is even talking about their Role, Conducting Investigations and taking Action against them?

      • 2
        3

        Mr Muhandiram
        Probably you are ignorant of the fact that Police routinely take people into custody; some are released after investigation, some are remanded and charged in the courts, some are acquited by the courts.
        This guy is under investigation. The issue at hand is deadly serious. The villager who stole a jackfruit also is entitled for human rights and innocent until proven guilty..

        Soma

        • 0
          1

          “This guy is under investigation.”

          Yeah. He is under investigation, just like Dr. Shaffi, but WITHOUT Access to his Legal Rights,.

          By the way, his Family filed a Fundamental Rights Application in the Supreme Court, I believe, about a month back. Any idea when it will be taken up?

  • 7
    2

    “”Animals don’t frighten me. Mankind does””

    You certainly are one of that Mankind.

  • 2
    0

    not a single charge sheet or indictment in respect to the easter bombing even after one year and two months. where is justice ???

  • 0
    0

    Basil,

    How come Asian Human Blights is silent, deaf, dumb and castrated over the arrest of Mr. Hajez Hisbulla against and in violation of all norms and decencies known to human kind?????

  • 1
    0

    The author of this article clearly states “This column should not be construed as an effort or campaign supporting Hejaz or any others who had been arrested at different times since 1979.”

    What I understand from this article is that the author tries to emphasize on the adherence to the Rule of Law by the parties concerned.

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