Hejaaz Hizbullah and due process

The very process aimed at serving justice should be, more than anything else, a process that is fair to everyone, as this is what gives the public the confidence that they are safe in their own country.

Of those arrested in connection with investigations launched into the Easter Sunday terror attacks that shattered Sri Lanka in April 2019, the case of lawyer Hejaaz Hizbullah caused much controversy due to many a reason, and now, after a long wait, Attorney General (AG) Dappula de Livera PC has instructed the Inspector General of Police (IGP) to take action to produce Hizbullah in court.

The AG had further instructed that charges be filed against Hizbullah under Section 2(1) (h) of the Prevention of Terrorism (Temporary Provisions) Act (PTA) and Section 3(1) of the International Covenant on Civil and Political Rights (ICCPR) Act.

In fact, Hizbullah, who was in the custody of the Criminal Investigation Department (CID), was to be produced before court last month. However, it did not happen as planned, as he was reported to have contracted Covid-19. On 8 January, just before being produced before court, the court was informed of his health situation, and the much-awaited appearance of Hizbullah in court was postponed.

The PTA, under which Hizbullah will be charged as activists for Hizbullah had speculated, has been criticised by many due to the fact that it contains provisions which are not in step with internationally accepted human rights laws (especially with regard to the admissibility of confessions recorded by the Police) and deprives a person arrested under the PTA of the right to a fair trial and investigation. Hizbullah’s arrest and subsequent prolonged detention also raised concerns as to whether his rights had been violated.

The freedom from arbitrary arrest and detention is a right granted by the Constitution, and the PTA contains provisions that violate these rights, such as a person’s right to be informed of the reason for his/her arrest and to be produced before a court without being held in custody for a prolonged period of time. In fact, one of the reasons why the arrest and detention of Hizbullah attracted attention was the allegation that the nature of his arrest and detention amounted to a violation of his rights.

Due process, or the right to be treated fairly and equally, according to the established legal framework, is a right to which every citizen is entitled, and any law or act that violates that right is inconsistent with the Constitution.

One might feel that stern laws are necessary to maintain the rule of law, especially when it comes to matters of national security. However, in the eyes of the law, every person is considered innocent until proven guilty, and proving the charges against someone beyond a reasonable doubt should be done in a fair manner, as the ultimate motive of prosecuting a person is serving justice to those in the aggrieved party.

Law is a fact and justice is an abstract, and that abstract is meant to be achieved through facts, not speculation, and the ultimate aim is to ensure that the proper implementation of the law finally leads to serving justice.

And, most importantly, justice is not about Hizbullah or any particular person. Justice is everyone’s right, and so too is the right to be heard and treated properly.

Amending and repealing laws and practices that may violate people’s rights, as well as introducing and implementing laws that serve justice, are not the people’s job. It is the country’s rulers’ duty.