By Mohamed Harees –

Lukman Harees

The dubious circumstances surrounding the arbitrary arrest of Hejaaz Hizbullah, a former State Counsel and a prominent Sri Lankan lawyer, on 14 April 2020 by the CID for ‘alleged involvement in the 2019 Easter Sunday terrorist attacks’ under Sri Lanka’s notorious Prevention of Terrorism Act (PTA), has been a shocker; not just to the family and friends; rather to the legal fraternity as well. He is still being reportedly detained without charges or access to a lawyer for well over a month. No reasons were provided to him or his family at the time of the arrest. While acknowledging the need to conduct thorough investigations into any alleged offence, in this instance, prima facie it appears that the detainee has been denied due process rights. 

With the BASL, International Bar Association. International Commission of Jurists as well as Amnesty International, among many bodies, expressing their serious concern over this arbitrary detention, what is clearly is at stake, is the due process of the law, smacking  of a rule of law crisis, on top of a impunity crisis, which have been assuming dangerous proportions for quite some-time in Sri Lanka. This palpably ‘State sanctioned’ onslaught on the due process, impinges of the constitutional guarantees that prevents governments from impacting citizens in an abusive way. In the case of Hejaaz, the most troubling aspect is the blatant disregard of the due process rights of an officer of the Supreme Court of Sri Lanka and what appears to be his right to practice his profession freely, as it creates fear they will be penalized for meeting with persons who are alleged to have committed offences as part of performing their duties as attorneys-at-law. Besides, if he was detained under the Prevention of Terrorism Act, he should have been produced before a magistrate before the conclusion of seventy-two hours or a detention order should have been issued. In his case, neither appears to have taken place, which could render the arrest and detention illegal, and hence constitute a violation of Article 13 of the Constitution of Sri Lanka. In this context, Hejaaz’s arbitrary arrest and detention bear all the tell-tale marks of Sri Lanka fast becoming a ‘police state’- a totalitarian state controlled by a political police force that secretly supervises the citizens’ activities.

Lawyer Hejaaz Hizbullah

Whilst the eyes of the world and the nation are diverted to addressing the Covid-19 pandemic, it is a shame that the government authorities are patently violating the rights guaranteed by the Constitution of Sri Lanka and the International Covenant on Civil and Political Rights, to which Sri Lanka is a state party, including his right appear before a court to challenge the lawfulness of his detention. Yes! Prominent legal bodies and Human Rights watchdogs have spoken out against this injustice, although there are questions in some quarters about the adequacy of BASL’s role in defending the ability to function as lawyers, without obstruction, fear or favour and in acting as a voice for justice, rule of law and democracy. Yes! There are also concerns expressed from within about the Muslim community’s callous and disgusting indifference to this case, when Hejaaz has been a strong community activist defending its interests against the formidable hate lobby which took shape in Post-war Sri Lanka! 

However, Hejaaz’s issue is neither a Muslim issue nor an issue which only the legal fraternity should be concerned about. This case has assumed public importance for the mere fact that its implications have spilled over to the public domain and become a subject of the public discourse. Fundamental rights, personal liberty assured under the Constitution have been denied. This case also reflects that the public space for expressing dissent is shrinking. There were vile and vicious media campaign carried out against him with the intention of prejudicing public opinion. The family say that they believe that this campaign is being carried out with the support those involved in the investigation in order to justify their unlawful activities in arresting and detaining him. There were attempts to threaten children to testify falsely against Hejaaz too. There were media reports revealing the contents of confidential statements made by the child witnesses before a magistrate. These are serious violations of human rights and erosions of public confidence in the justice dispensation system.  In this context, this contentious issue cannot be left to the family or the legal profession to sort matters out. It has thus become an issue which should be the immediate concern of every public spirited citizen, to stem the rot within the justice system, with ‘the level of impunity, as well as a lack of public accountability and due process stooping to a ‘new low level’.  

In a classic style of ‘King Kekille type of meting out justice, the hasty arrests made, an year after the Easter Sunday attacks, smacks of a well –planned move to show ‘results’ to a predominantly Sinhala Buddhist audience with the parliamentary elections round the corner, rather than a result of a thorough Police investigation. If the revelations of the Parliamentary Select Committee (PSC) proceedings is anything to go by, the investigation cleverly left out the main culprits arising from the then-government’s culpability (Sirisena-Ranil and their law enforcement arm) in ignoring intelligence warnings and the ‘masterminds’ who reaped the harvest out of the Post-Easter demonization of the Muslim community which led them to achieve their narrow political ends. The revelations of many at the PSC proceedings, including the evidence of DIG Nalaka Silva, and the Head of  Intelligence furnished many pointers and clear proof of their culpability. Still those culprits are at large with Sirisena not being even questioned; but allowed to be housed within a luxurious cocoon after retirement. How the Post-war rulers played games with the rule of law and their power to pardon criminals are public knowledge!  

Besides, there are international angle too to this case. According to Article 9 of the International Covenant on Civil and Political Rights, “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” Article 14 entitles anyone charged of a criminal offence “to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. The UN Basic Principles on the Role of Lawyers provide that, “Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.”

In this light, International Bar Association’s Human Rights Institute (IBAHRI) urged, ‘the Government of Sri Lanka need to fall in line with international obligations – for example, to respect the independence of lawyers and their right to exercise freedom of expression, as part of their vital role holding the government to account. Incidentally, this year marks 30 years since the adoption of the UN Basic Principles on the Role of Lawyers and the IBA Standards for the Independence of the Legal Profession, which uphold the rights of lawyers to be able to carry out their professional responsibilities. Part of the latter instrument is the ‘protection of the lawyer’s files and documents from seizure or inspection’ and the defence of the rights of lawyers ‘to take part in public discussion of matters concerning the law and the administration of justice.’ In Hejaaz’ case, these principles were grossly violated. 

In fact, Hejaaz case is not a unique one for IBAHRU as it has been showing its’ ongoing concerns regarding the rule of law, the rights of lawyers and the Prevention of Terrorist Act in Sri Lanka, which allows for warrantless entry, the search of premises and arrest of persons. Following a rapid-response fact-finding mission in 2013, the IBAHRI published a report highlighting the country’s ‘longstanding official hostility’ towards members of the legal profession who express legitimate criticism of the government, the right to which is protected by the Constitution. 

Putting matters in perspective, Hejaaz has also been actively involved in a number of high-profile cases, including a challenge to the dissolution of parliament in 2018 in Supreme courts, which saw the ouster of the short lived Mahinda Rajapakse government, thereby obviously making him unpopular with the Rajapaksas. He also appeared for Dr Shafi who was demonised by a rogue monks-led campaign and through Divaina, in the aftermath of the Easter Sunday attacks that he has been responsible for sterilization of more than 8000 Sinhala women. These charges were subsequently proved to be unfounded in CID investigations. In this backdrop, his arrest also comes at a time of rising discrimination against the Muslim community and political dissidents even during the Covid-19 pandemic with officials and media openly identifying Muslim victims as responsible for spreading the disease and government denying burial rights to the Muslims, in contravention of WHO guidelines, on the ludicrous basis that Covid bodies can be used as biological weapons. 

Witch hunt is not novel in Sri Lanka. Both the previous Yahapalana governments as well as Rajapakse governments have been seen to be engaging in tit-for tat witch hunts of prominent political opponents and social activists. In bad taste, a group of 216 lawyers loyal to the Government, called upon the BASL not to intervene in this case, alleging that he was connected to the 21 April 2019 Easter Sunday bombings and that the arrest was a result of matters completely outside his scope of work as an attorney. Police spokesman also said “This lawyer had connections with 2 of the bombers, he had also been part of an organisation these bombers were part of, even though not a shred of evidence has been put forward by police to any court in proof of this allegation. As alleged by Hejaaz’ family, this arrest is prima facie illegal and arbitrary and appear to have been done for collateral purposes, with the intention of stifling dissent. 

It is important to note rights activists, journalists facing surveillance and threats, with security agencies shutting down civic space in Sri Lanka.  According to an extremely scary Report (March 2020) by Human Rights Watch, Sri Lankan security agencies are stepping up surveillance, harassment, and threats against human rights activists and journalists, and since November 2019, when the new government came into office, there has been a rapid closing of civic space and freedom of expression. Meenakshi Ganguly, HRW South Asia director said “The activities of the government’s security apparatus are evident in some violent attacks and public death threats against activists and journalists, but also in equally dangerous actions happening out of sight. Some of these calls have apparently been to tell activists that they are being watched at that moment’. Sri Lankans are seeing their civil and political rights being stripped away and replaced by authoritarian structures at a rapid pace”.

In his book, Sri Lanka: Impunity, Criminal Justice & Human Rights (Hong Kong: Asian Human Rights Commission, 2010); Basil Fernando describes the current situation in Sri Lanka as one of “abysmal lawlessness.” Use of the word “abysmal” is explained as follows: Lawlessness of this sort differs from simple illegality or disregard for law, which to differing degrees can happen anywhere. Lawlessness is abysmal when law ceases to be a reference. What would normally be crime ceases to be thought of as crime and lawlessness becomes routine. Under circumstances of abysmal lawlessness, according to Fernando, the concept of legal redress – which is vital to the proper functioning of any legal system – has in fact been completely decoupled from whatever may be called law. In Sri Lanka, the primary cause of this decoupling has been the fundamental failure of the institutions ostensibly designed to implement and enforce legal redress. In his book, Fernando identifies six themes which, in his opinion, lie at the heart of the current situation of abysmal lawlessness in Sri Lanka: the lost meaning of legality; the predominance of the security apparatus; the disappearance of truth through propaganda; the extraordinary concentration of power in the hands of the executive president (termed ‘the superman controller’); destroyed public institutions; and the zero status of citizens.

Sri Lanka’s justice and accountability institutions have been eroded to the point that they have become dysfunctional sham institutions which are little more than hollow impressions that merely approximate some of the external characteristics of genuine functional institutions. Sri Lanka does not lack for a constitution, a court system, and other formal mechanisms for legal redress; however, none of these institutions have any more depth or substance to them than a Hollywood film set. As the country’s public institutions have fallen to zero, so has the status of its citizens. Where there are no effective public institutions there can be no individual rights. The rights that citizens enjoy under the statute books have no actual relevance, because there is no effective mechanism to guarantee and protect them. Thus, insofar as the nation’s public institutions have vanished, so has any conception of Sri Lankans’ individual rights. As Kishali Pinto-Jayawardena points out ‘At each historical juncture, the framers of Sri Lanka’s post-independence constitutional documents have suffered from a deep-rooted reluctance to give practical effect to the rule of law and the idea of justice; From the core political objective to subvert the rule of law sprang a rabidly intolerant response to legitimate dissent’. Whether Hejaaz’s case will thus  wake up and stir the (lost) dynamism of public activism in Sri Lanka at this challenging time of history, is anyone’s guess! But, as Ella Wheeler Wilcox said “To sin by silence when they should protest makes cowards of men.”