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  • Sri Lanka has locked up this Muslim lawyer without charge for nearly five months
    The prominent Sri Lankan Muslim lawyer, Hejaaz Hizbullah, is being described by human rights groups as the latest victim of Sri Lanka’s draconian Prevention of Terrorism Act.

    On April 14, Hizbullah, 40, got a call from the Ministry of Health saying they were worried he may have contracted COVID-19 and advised him to remain at home.

    A day earlier he and others had written to the Sri Lankan president about his government’s decision to ban Muslims from burying their dead, forcing them to cremate their remains instead – a violation of their right to freedom of religion, as protected by Sri Lanka’s constitution and its international obligations.

    Hejaaz Hizbullah was a lawyer at the Supreme Court and worked as a state counsel for the Attorney General’s department. Beyond his legal work, he was involved...
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  • “කවදා හෝ යුක්තිය ඉටුවේයැ’යි බලාපොරොත්තු සහගතව ජීවිතය ගෙවනවා විනා වෙන කිසිවක් කළ නොහැකි වීම ගැන මට ඇත්තේ නොදැරිය හැකි වේදනාවකි”: මගේ මල්ලි හිජාස්
    හිජාස් හිස්බුල්ලා මගේ බාල සොහොයුරා ය. අගෝස්තු 25 වැනි දිනට එළඹුණු ඔහුගේ 40 වැනි උපන්දිනය ඔහුට ගත කිරීමට සිදු වුයේ පාස්කු ඉරිදා ත්‍රස්තවාදී ප්‍රහාරයට සම්බන්ධ බවට අභූත චෝදනා එල්ල කරමින් අයුතු ලෙස අත්තඩංගුවට පත්ව අපරාධ පරීක්ෂණ දෙපාර්තමේන්තුවේ රැඳවුම් භාරයේදී ය. හිජාස් පිළිබඳව මට ඇති පැරණිතම මතකයන් අතර බොහොමයක් කළුබෝවිල සිට...
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  • Hejaaz Detention: Fort Magistrate Orders CID To Submit All Statements Obtained In Investigations


    Following submissions by Defence Counsel that the Criminal Investigations Department is selectively reporting facts to the Magistrate in order to malign Hejaaz Hizbullah, Fort Magistrate today ordered the Criminal Investigations Department to submit a report of all statements obtained by them from persons relating to the investigations of Hizbullah.
    When the case was taken up today. Counsel for the Defence informed Court that the Criminal Investigations Department had obtained statements from all persons of the Save the Pearls Charity and the Teachers and Board of Management of the Al-Zuhriya Madarasa.

    However, none of those statements had been produced to date.
    They said that the statements would reveal that all the allegations made by the CID are a fabrication and were made in order to malign Hizbullah and...
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  • Hejaaz Hizbullah: Symptom and symbol
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    I first encountered the man in 2013 at my law school. He didn’t...
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  • Coronavirus funerals: Sri Lanka's Muslims decry forced cremation
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  • ජිනීවා මානව හිමිකම් කවුන්සිලයේදී රටවල් 5කින් ලංකාවට චෝදනා
    පාස්කු ප්‍රහාර සම්බන්ධයෙන් සැකපිට අත්අඩංගුවට ගෙන සිටින නීතිඥ හිජාස් හිස්බුල්ලා රඳවා තබාගැනීම, විශේෂ බළකායේ සැරයන් සුනිල් රත්නායකට ජනාධිපති සමාව ලබාදීම ඇතුළු කරුණු ගණනාවක් පදනම් කරගනිමින් එක්සත් රාජධානිය ඇතුළු රටවල් 5ක කණ්ඩායමක් එක්සත් ජාතීන්ගේ මානව හිමිකම් කවුන්සිලයේදී ශ්‍රී ලංකාවට චෝදනා එල්ල කර ඇතැයි ජිනීවා තානාපති...
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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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