Photo Courtesy : OMLANKA

On April 14, 2020, Attorney-at-Law Hejaaz Hisbullah was arrested for allegedly having ‘close contact’ with two suicide bombers responsible for the Easter Sunday attack. Mr. Hizbullah had last year represented Dr. Seigu Siyabdeen Mohammed Shafi, who was arrested and detained under the Prevention of Terrorism Act No. 48 of 1979 (PTA), under fabricated accusations of sterilizing 4,000 Sinhala women. By the time he was granted bail, the media, social media, and society at large have already deemed him a ‘terrorist’ and as of January this year he has not still been reinstated to service.

To the knowledge of the author, to date, Mr.Hisbullah has not been produced before a magistrate and has been kept in the custody of the CID. Despite media reports claiming that he was arrested for alleged connection with persons responsible for the Easter Sunday attack, it is unclear under what law of Sri Lanka Mr. Hisbullah is being detained.

The only law which permits detention without judicial oversight for over 24 hours is the PTA. However, even under the PTA, a suspect can only be kept in police custody up to 72 hours unless the ‘Minister’ issues a Detention Order.  Under the Act, only the Minister (who by practice and custom has become the Minister responsible for the subject of Defense) can make Detention Orders detaining a PTA suspect up to 18 months. Until the Presidency of Mr. Maithripala Sirisena, the Defense Ministry portfolio was held by the President, and so Detention Orders were issued and signed by the President.

However, the powers of the new President who took office in November 2019 were curtailed by the 19th Amendment to the Constitution. Under the amended Constitution, the new President cannot hold the portfolio of any Ministry, including Defense. After Mr.GotabayaRajapakse took office as President, he did not appoint a Minister for the subject of Defense, for reasons best known to him. Given this status quo, even if a person is arrested under the PTA after November 2019 he has to be produced before the Magistrate within 72 hours. Otherwise, the detention becomes illegal and an infringement of the detainee’s fundamental rights.

Apart from this specific legal conundrum, the case of Mr.Hisbullah is mired in the improper procedure which was followed in his arrest and detention. The habeas corpus petition filed by the father of Mr. Hisbullah states that Police officers impersonated themselves as health officers to enter his house. The detainee’s wife, who is not a Sri Lankan national, was asked to sign a statement in Sinhala. Aside from not being produced before a Magistrate, to the knowledge of the Author, Mr. Hisbullah has also not been allowed free access to lawyers and neither the family nor his lawyers know of the specific charges against him. Despite this, a spokesman on behalf of the Police has made regular public appearances on television making statements to the effect that they had ample evidence to arrest Mr. Hisbullah.

This practice of keeping persons detained under the PTA and their legal representatives in the dark as to the basis of their arrest, and at the same time painting them as a ‘terrorists’ to the media and to the public, has been a consistent trend of persons arrested under ‘anti-terror’ laws. See, for instance, the article titled “Lawyer held on charges of conspiracy, aiding and abetting Easter carnage probe” which appeared on The Island newspaper published on April 27, 2020. Apart from the misleading title of the detainee being ‘charged’ with an offence which he has not been as yet, the article begins with the statement that “Police headquarters said that that there was irrefutable evidence to link Attorney-at-Law, Hejaaz Hisbullah, who had been recently taken into custody by the Criminal Investigation Department (CID), in connection with the 2019 Easter Sunday suicide bombings.”

Mr.Hisbullah is thus already deemed guilty by law enforcement, by the media, in social media and in the eyes of the public with ‘irrefutable evidence to link’ him to the Easter Sunday attack. This is indeed the fundamental problem with any arrest made under any law claiming to ‘prevent’ terrorism – the suspect is already guilty even before the trial starts against him.

Our criminal legal procedure functions on the basic principle that a person suspected of an offence should always be treated as an innocent person until the judiciary finds him guilty. ‘Anti-terror’ laws such as the PTA reverse this principle. Once a law allows a person to be treated as if he is already guilty of the crime he is suspected of, then indefinite imprisonment, extraction of confessions (even through torture), denying access to lawyers, and not having the right of bail all become sanctioned legal practice.

‘Anti-terror’ laws set out to tarnish a person as a ‘terrorist’ even before the judiciary can weigh the merits of his case. The procedure of investigating offences under the PTA is so disturbingly flawed and biased against defendants that, even in instances where the person is found guilty by our Courts, lawyers still ponder whether the convicted were, in fact, guilty for the crimes they were punished for many years after the cases have concluded.

The question we need to be asking is not whether the ‘irrefutable evidence’ claimed to have been found against Mr. Hisbullah deems him guilty of ‘aiding and abetting Easter Sunday carnage’. We have already given the power to the Courts to ask these questions and find answers. What we as a democratic society should be asking and demanding from our Governments is that, even if a person is guilty of the crimes he is accused of, was he given a fair chance of presenting his case. If the answer is ‘no’, then we are saying ‘yes’ to a lawless country, weakening our Court system, and opening the floodgates for the Government to punish anyone at their will. 

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