Protecting human rights while preventing terrorism

As long as we are willing to accept the existence of terror laws in Sri Lanka, arbitrary actions void of accountability by the executive such as the arrest of Mr Hizbullah will continue

Fears over threats to national security and chauvinism are political tools used by rulers to gain and consolidate power. Increased militarization and raising mistrust against Muslims and Tamils are part of this campaign

In the past many controversial investigations turned into public theatrical displays, and over time become silent. Their common feature was that less attention was given to due process

The arrest and detention of lawyer Hejaaz Hizbullah under the Prevention of Terrorism Act (PTA) has drawn protest from sections of the local and international legal community. Mr Hizbullah was arrested on April 14 by the Criminal Investigation Department (CID) as part of ongoing investigations into the 2019 Easter bombings. A total 197 suspects have been arrested so far.

Soon after Mr Hizbullah’s arrest, the Bar Association of Sri Lanka (BASL) wrote to the Police Chief expressing concern over the wellbeing of one of its members. The letter, signed by BASL President Kalinga Indatissa PC, sought reasons for the arrest. It asked that Mr Hizbullah’s professional rights be upheld, while adding that the BASL had no intention of disturbing lawful investigations. 

Meanwhile, the International Commission of Jurists (ICJ) raised concerns regarding due process. “No one questions the government’s need and obligation to investigate the horrendous Easter Sunday attacks,” ICJ Asia-Pacific Director Frederick Rawski said. But he urged that the investigations respect human rights, and that Mr Hizbullah be guaranteed due process, including full and confidential access to his lawyers. These calls have been echoed by Sri Lankan lawyers and civil society members.

The ICJ also reiterated its calls to repeal the PTA, and said investigations must adhere to the Constitution and international law. “The ICJ reiterates its calls for the PTA to be repealed, and replaced with a law that conforms with Sri Lanka’s international human rights obligations,” Mr Rawski said, echoing the sentiments of lawyers and activists, who have been campaigning to remove the anti-terror law enacted in 1979.  The ICJ and others have noted that the PTA has been used to detain suspects for prolonged periods without charge or trial, and has facilitated torture and abuse.

Moreover, the International Convention on Civil and Political Rights (ICCPR) states people must be informed of why they are being arrested, and under what charges. Also, suspects must be given time to prepare their defence with their lawyers. Similar guarantees are found in Article 13 of the Constitution.

On April 17, Mr Hizbullah’s father filed a Habeas Corpus petition stating that five persons posing as Health Ministry officials had entered his son’s home. They had questioned Mr Hizbullah, demanded to see his case files, and arrested him. 

In light of these events, Daily Mirror spoke to members of the legal community to gather their views on the arrest and detention of Mr Hizbullah and the PTA. 

That Mr Hizbullah has had no meaningful access to his lawyers is a violation of constitutional and legal provisions, as well as the ICCPR, constitutional lawyer Dr Asanga Welikala said. Persons detained under the PTA must be produced before a Magistrate within 72 hours or issued a Detention Order (DO) by the relevant Minister, Dr Welikala noted. However Mr Hizbullah was not produced before a Magistrate within the said time, and his family or lawyers have not seen a DO. “He has also not been charged under any other law,” Dr Welikala said. Moreover his habeas corpus application has not been heard because of courts being shut down due to COVID-19. 

The unchecked detention powers, special trial procedures and absence of meaningful judicial review in the PTA facilitate arbitrary and capricious official conduct, including torture

Regarding the PTA, Dr Welikala said the law flouted “almost every conceivable human rights norm”. This includes detention without charge for prolonged periods, admissibility of confessions in court proceedings, shifting the burden of proof to the defendant, and unfair penalties. “The unchecked detention powers, special trial procedures and absence of meaningful judicial review in the PTA facilitate arbitrary and capricious official conduct, including torture,” Dr Welikala said. “The PTA really should be seen as an aberration of the rule of law, rather than a part of it.”

Senior lawyer, diplomat and human rights advocate Dr Radhika Coomaraswamy said Mr Hizbullah’s arrest was worrisome on two counts. “First, because the normal procedure for arrest and detention was not followed. Second, because the government does not seem to care that it is blatantly violating the rule of law,” Dr Coomaraswamy said. 

She noted that certain segments believed the Executive could do anything because the President won the elections with a large majority. “Certain circles believe that issues of rule of law concerning minority communities can be drowned by playing on people’s fears and insecurities,” she said. “This is an unacceptable state of affairs.”

Commenting on the PTA, Dr Coomaraswamy said the law was made by the J.R. Jayawardene government, based on a South African law. “At the time it was drafted there was a great deal of protest,” she recalled, while noting the law has been used against Sinhala, Tamil and Muslim youth. “If you are not a terrorist and you are caught up in that sweep, you may be instantly radicalized by the treatment you receive,” she cautioned. Dr Coomaraswamy said since the 1970s, anti-terrorism laws that respected human rights have been adopted by many countries and at international level. “We should repeal the PTA and ensure that any law fighting terrorism has the necessary human rights safeguards.”

Ramindu Perera of the Open University Legal Studies Department noted that while the state had the right to enforce law and order, it must be done within legal limits, while upholding human rights obligations. Mr Perera said the Constitution guaranteed citizens’ fundamental rights and due process, whereas Mr Hizbullah was not given reasons for his arrest, and was denied legal access for some time. 

Commenting on the principle of “presumption of innocence”, Mr Perera said the police spokesperson had made a public statement connecting Mr Hizbullah to the Easter bombings. “Following these remarks, certain media outlets were quick to portray him as a terrorist, severely tarnishing his image.” 

Calling the PTA “draconian”, Mr Perera noted the discourse around the law constructed a subject as a dangerous ‘terrorist’ that deserved punishment at all costs. “Due to this construction, once a person is detained under terrorist charges, the public tends to accept the narrative of the state without scrutiny,” he said. This in turn is manipulated by the state to act arbitrarily, and creates conditions for torture. He welcomed the BASL’s intervention on the legal rights of Mr Hizbullah. “But it is also important to raise the larger issue of the impact the PTA is having on fundamental rights in general.”

A basic norm in criminal justice is that a suspect be treated as innocent until proven guilty, lawyer and activist Swasthika Arulingam said. But anti-terror laws reversed this principle, and suspects are treated as guilty of the accused crime.  “Therefore a suspect of terrorism can be detained for months without access to courts or legal representation. Bail cannot be granted at a Judge’s discretion. An executives order for detention cannot be questioned by the judiciary,” she noted. 

Ms Arulingam added the PTA tacitly sanctioned torture as confessions could be used as evidence against the accused. “Terror laws such as the PTA should not exist in a democratic society. And yet today, all over the world, rule under terror laws have become the norm.”

Certain circles believe that issues of rule of law concerning minority communities can be drowned by playing on people’s fears and insecurities

She said the approach followed in arresting and detaining Mr Hizbullah was “no surprise to lawyers who have worked on cases concerning persons charged under ‘anti-terror’ laws”. He was kept for days without being produced before a Magistrate, neither his family nor lawyers knew the reasons for arrest, and he could only see his lawyers with an intelligence officer, she said. “As long as we are willing to accept the existence of terror laws in Sri Lanka, arbitrary actions void of accountability by the executive such as the arrest of Mr Hizbullah will continue,” she said. 

Lawyer and activist Sanjaya Wilson Jayasekera said the arrest had little to do with the security concerns of the public. “This arrest is also part of whipping up anti-Muslim communalism in view of the planned general election,” Mr Jayasekera said. He added the PTA has been used to indefinitely remand and torture political prisoners, and was used during and after the war against the LTTE, and to brutally suppress rural unrest in the 1988–1990 periods.

“From the eyes of Sinhala-Buddhist extreme elements, the highest crime Mr Hizbullah has committed is to provide legal counsel for Muslim arrestees after the Easter Sunday attacks and to appear for Dr. Seigu Shihabdeen Safi, who was arrested on concocted charges of forced sterilization of Sinhalese women,” Mr Jayasekera said.
He said fears over threats to national security and chauvinism were political tools used by rulers to gain and consolidate power.  Increased militarization and raising mistrust against Muslims and Tamils were part of this campaign, he added. 

“These are aimed at concentrating power, in the backdrop of growing public dissatisfaction over government’s implementation of IMF-dictated austerity measures and the inadequate, criminally negligent response to the pandemic crisis.” Mr Jayasekera warned the country was heading towards a presidential dictatorship, and repressive measures would undermine the democratic gains of the working class, won over decades of struggles. 

Lawyer Ermiza Tegal said Mr Hizbullah’s arrest highlighted the uncertainty that confronts those arrested under the PTA. “Arrests cannot be, to use common parlance, ‘shrouded in mystery’”, she said. “Our legal framework is designed to ensure that a suspect has the opportunity to meet the case against himself or herself.” 

She said Article 13 of the Constitution and the International Convention for the Protection of All Persons from Enforced Disappearance ensured that persons must be informed under what law they are arrested, and the reasons for the arrest, in addition have access to proper legal representation. “Failure to practice these basic legal standards seriously affects rule of law, creates opportunity for misinformation, and colours public perception and public confidence in institutions mandated with securing justice.”

Lawyer and academic Dinesha Samararatne also cited Article 13 of the Constitution that arrests must be made according to procedure established by law. “Media reports about the police accessing the case files maintained by Mr Hizbullah are of particular concern. The confidentiality of communications between an attorney and client is foundational to our criminal justice system,” she stressed. “Unless the confidentiality of those communications is preserved, the criminal justice system cannot guarantee the presumption of innocence of any accused person.”

In principle and practice, she said, the PTA is a draconian law. “It grants discretion to the Minister in issuing detention orders and to the police for admission of confessions -- made while in custody -- in criminal proceedings.”

Ms Samararatne noted that the Supreme Court (SC) has upheld petitions by detainees complaining of torture, and that studies had shown severe miscarriage of justice like indefinite detention and wrongful convictions. “Lawyer Hizbullah’s arrest is cause for grave concern, due to what seems to be an unconstitutional restriction of his liberty and also because it reveals the grave shortcomings of our criminal justice system, in principle and in practice.”  

Lawyer and researcher at the Law and Society Trust Vidura Prabath Munasinghe said the Easter attacks were barbaric, and the culprits, including those who allowed it through inaction and negligence, must be punished following due process. “But the investigation and trial process needs to be done in accordance with the process prescribed by the law. Otherwise there will be no difference with the uncivilized acts of the bombers and the process of serving justice,” he said. “If that happens, it will undermine the legitimacy of justice.”
Mr Munasinghe reiterated that everyone was a suspect until proven guilty. He said all suspects must have access to legal support and to a transparent and impartial trial. “Any act which hinders or disobeys this due process is a threat to justice.” 

He said in the past many controversial investigations had turned into public theatrical displays, and over time had become silent. Their common feature was that less attention was given to due process. “As citizens’ we should not be misguided by these public theatrical displays, and demand that the Executive follows due process and assures justice to the families of the innocent victims of the tragedy.”

Human Rights Commission on PTA 
In 2016, the Human Rights Commission of Sri Lanka (HRCSL) issued directives on arrests and detentions under the PTA. Among them were instructions that persons making arrests should identify themselves by name and rank, and inform suspects of the reasons for their arrest. Suspects should also be allowed to meet their lawyers during interrogation, and HRCSL officers should be permitted to meet detainees. Also, those making the arrest should inform the HRCSL of their actions within 48 hours of the arrest, the directives said.  

Lawyer Hizbullah’s arrest is cause for grave concern, due to what seems to be an unconstitutional restriction of his liberty and also because it reveals the grave shortcomings of our criminal justice system, in principle and in practice

Later the same year, the HRCSL issued a statement welcoming government moves to repeal the PTA. The letter, signed by HRCSL chairperson Dr Deepika Udagama, stressed that national security laws replacing the PTA should adhere to international human rights standards. Among the HRCSL recommendations were proposals that detainees be granted private and unmonitored legal counsel, and that the burden of proof should lie with the state. Further, courts should be allowed to determine if detentions were justified, and release those 
unduly detained. 

The HRCSL also stressed the importance of giving detainees a fair trial, adding that only confessions made to a judicial officer be admissible as evidence. In conclusion, the Commission emphasized that national security laws adhere to “tests of necessity and proportionality” and be subject to judicial review.