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  • Sri Lanka court orders release of lawyer held for two years
    A Sri Lankan court has ordered the release on bail of a lawyer arrested over his alleged links to the 2019 Easter Sunday bombings and held for nearly two years on charges rights groups say lacked credible evidence. Hejaaz Hizbullah was arrested in April 2020 and accused of being linked to the attacks on churches and hotels that left 279 people dead. But after prosecutors failed to provide evidence of his involvement in the attacks, blamed on a local group, he was instead Read More...
  • Hejaaz Hizbullah leaves from remand custody
    Attorney-at-law Hejaaz Hizbullah today left from remand custody after fulfilling his bail conditions before Puttlalam High Court.

    He was incarcerated for 22 months for allegedly committing offences come under the Prevention of Terrorism Act.Last Monday (07), the Court of Appeal ordered to release Hizbullah on bail pursuant to a revision application filed on behalf him.Hizbullah was ordered to be released on a cash bail of Rs.100,000 with two sureties of Rs.500,000 by Puttlalam High Court Judge Kumari Abeyratne. He was further ordered to report to the DIG office of Puttalam Police Division every second and fourth Sunday of every month.An indictment under the Prevention of Terrorism Act and the International Covenant on Civil and Political Rights (ICCPR) Act has now been served on Hejaaz Hizbullah. According to the indictment, Hizbullah...
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  • හිජාස් ගෙදර යයි

    (නිමන්ති රණසිංහ සහ හිරාන් ප්‍රියංකර ජයසිංහ) ත්‍රස්තවාදය වැළැක්වීමේ පනත සහ සිවිල් හා දේශපාලන අයිතීන් පිළිබද ජාත්‍යන්තර සම්මුති පනත ප්‍රකාරව චෝදනා ලැබ වසර දෙකකට ආසන්න කාලයක් රක්ෂිත බන්ධනාගාර ගත කර සිටි නිතීඥ හිජාස් හිස්බුල්ලා මහතා අභියාචනාධිකරණ නියෝගය ප්‍රකාරව ඇප මත මුදාහැරීමට පුත්තලම මහාධිකරණය අද (09)...
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  • Court of Appeal grants bail on Hejaaz Hizbullah
    The Court of Appeal today ordered to release Attorney-at-law Hejaaz Hizbullah on bail after nearly two years in detention and remand custody. Accordingly, the Court of Appeal directed the Puttalam High Court to release Hejaaz Hizbullah on bail with suitable bail conditions. The Court of Appeal two-judge-bench comprising Justice Menaka Wijesundera and Justice Neil Iddawala made this order taking into consideration a revision application filed on behalf of Hejaaz Hizbullah. The Attorney General did not raise objections to release Hizbullah on bail. On January 28, an application made by the defence requesting to release Attorney-at-law Hejaaz Hizbullah on bail was rejected by Puttalam High Court.   The High Court Judge Kumari Abeyrathne refused to grant bail citing that she has no jurisdiction to grant bail under the Prevention of Terrorism...
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  • Attorney at law Hejaaz Hizbullah granted bail
    Attorney-at-law Hejaaz Hizbullah has been granted bail by the Court of Appeal after being detained for over 20 months. Hizbullah was released on bail today after the Puttalam High Court judge refused to grant bail to him last month. Refusing bail, she claimed that it was not under her jurisdiction, despite the Attorney General having consented to grant bail. The judge further informed the defense to request bail from the Court of Appeal on the 9th of February 2022. The bail application had been filed at the Puttalam High Court after Hizbullah’s lawyer had agreed to a settlement with the other parties in the interest of his client. On 20th January, the Attorney General’s (AG) Department said it has no objections to releasing Hizbullah on bail subject to conditions. The AG’s Department informed the Court of Appeal that the bail...
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  • සී.අයි.ඩියෙ හිටිය දවස් 46ම නිදාගත්තෙ ප්ලාස්ටික් බෝතලේ ඔලුවට තියාගෙනයි - දොස්තර ශාෆි කියන කතාව
    “හිර කුටියේදී එයාල මට ලීටර් එක හමාරෙ ප්ලාස්ටික් බීම බෝතලයක් තියාගන්න ඉඩ දුන්නා. කාටවත් කොට්ට දුන්නෙ නෑ. ඒත් බිම ඔලුව තියාගෙන ඉන්නකොට මට නින්ද යන්නෙ නෑ. බෝතලේ වතුරෙන් පුරවල ටිකක් වතුර ඉවත් කළාම ඒක ටිකක් නම්‍ය වෙනවා. මම සී.අයි.ඩියෙ හිටිය දවස් 46ම නිදාගත්තෙ ප්ලාස්ටික් බෝතලේ ඔලුවට තියාගෙනයි. මම ඒකට හුරු වුණා.” ශාෆි සහාබ්දීන් එම...
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  • Trial of Hejaaz Hizbullah: Main witness flounders
    AG request to amend indictment refused The main witness in the case against Hejaaz Hizbullah, the 18-year-old Mohomed Malik on Friday, failed to give any evidence relating to the charge during his testimony when the case was heard at the Puttalam High Court.

    The young witness floundered when questioned as to the time period of the alleged incident at which Hizbullah is said to have made a speech and the contents of the speech.  As a result, right before the adjournment for lunch, the Attorney General (AG) requested the High Court Judge to amend the indictment. The Defence objected to it by pointing out that the indictment filed was based on repeated statements by the witness to the CID. They said that the statements to the CID by the witness, including statements...
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  • Revision application seeking bail for Hejaaz Hizbullah reserved for Feb.7
    The order regarding a bail application filed on behalf of Attorney-at-law Hejaaz Hizbullah was today reserved for February 7 by the Court of Appeal. The Court of Appeal two-judge-bench comprising Justice Menaka Wijesundera and Justice Neil Iddawala announced that the order on whether bail would be granted or not to Hejaaz Hizbullah will be delivered next Monday (7). Meanwhile, Additional Solicitor General Rohantha Abeysuriya appearing for Attorney General informed the Court of Appeal that the prosecution is not objecting to release Attorney-at-law Hejaaz Hizbullah on bail. This application was called before the Court of Appeal through a motion after the Puttalam High Court decides to refuse bail for Hejaaz Hizbullah on January 28. President's Counsel Romesh de Silva appearing for Hizbullah contended that the Court of Appeal has Inherent...
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  • හිජාස්ට ඇප දෙනවා ද? නැද්ද?
    (රන්ජන් කටුගම්පොල සහ නිමන්ති රණසිංහ ) රක්ෂිත බන්ධනාගාර ගත කර සිටින නීතිඥ හිජාස් හිස්බුල්ලා මහතා ඇප මත මුදා හරිනවා ද? නැද්ද? යන්න සම්බන්ධයෙන් වන නියෝගය ලබන  07 වැනිදා ප්‍රකාශයට පත්කරන බව අභියාචනාධිකරණය අද (02) දැනුම් දුන්නේය. තමන් ඇප මත මුදා හරින ලෙසට ඉල්ලා නීතිඥ හිජාස් හිස්බුල්ලා මහතා අභියාචනාධිකරණයට ගොනුකර තිබූ පෙත්සමක් අද...
    Read More...
  • Court refuses to grant bail to Hejaaz Hizbullah
    The Puttalam High Court has refused to grant bail to Attorney-at-law Hejaaz Hizbullah who has been detained for over 20 months. The judge has refused the bail order as it is not under her jurisdiction, despite the Attorney General’s consent to grant bail bail. The Attorney General’s (AG) Department said on January 20 that it had no objections to releasing Hizbullah on bail subject to conditions. https://www.dailymirror.lk/breaking_news/Court-refuses-to-grant-bail-to-Hejaaz-Hizbullah/108-230030 Please enable JavaScript to view the comments powered by Disqus.
    Read More...
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Hejaaz Hizbullah, The Shining Young Attorney Held Incommunicado By Mass L. Usuf

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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.

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.

https://www.colombotelegraph.com/index.php/hejaaz-hizbullah-the-shining-young-attorney-held-incommunicado/

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