A Bar to Stand On

It is now common knowledge that two collectives of Attorneys-at-Law have written to the Bar Association of Sri Lanka (BASL) in connection with the arrest and detention of Mr Hejaaz Hizbullah, a fellow Attorney-at-Law.

By way of a letter dated 24 April 2020 addressed to the BASL, a collective of 158 Attorneys-at-Law raised their concerns regarding the unlawful arrest and detention of Mr Hizbullah, and its implications to the legal profession (‘original letter’). By way of a letter dated 29 April 2020, a second collective of Attorneys-at-Law wrote in response (‘letter of response’).

I am writing on certain matters that emerge from these two letters.

The key objective of the original letter was to require the BASL to take a ‘firm and open stand’ regarding the failure on the part of state officials to follow the due process in the arrest and detention of a member of the legal profession, as the State’s conduct ‘sends out a chilling message to other lawyers and the general public regarding the state of due process and the ability of the BASL to stand effectively for the rights of those who represent persons in high-profile cases’ (p.2). Importantly, the said letter pointed out that ‘[a] free, fearless and independent legal profession being one of the most important features of a democracy to protect rights of individuals, it is the duty of the leadership of the professional body to do its utmost to defend the ability to function as lawyers, without obstruction, fear or favour’ (p.2). It is crucial, and of significance, to note that at no point did the said letter purport to assess, if not discredit, the nature of the evidence presented against Mr Hizbullah. The sole focus of the original letter was on the lawfulness of the procedure adopted by the state officials in arresting and detaining Mr Hizbullah.

On 24 April 2020, and at the time of writing the original letter, the following matters, among other things, were known to the public and hence comprised common general knowledge. That is:

1. Mr Hizbullah was arrested on 14 April 2020, and based on a press conference by the spokesperson for the Criminal Investigation Department (CID), which was held on the day following Mr Hizbullah’s arrest,[1] it was made clear that his arrest and detention was in terms of the Prevention of Terrorism (Temporary Provisions) Act 1979 (PTA) in connection with the Easter Sunday terror attacks of 21 April 2019.

2. As had been pleaded in a Habeas Corpus application filed by Mr Hizbullah’s father, which is currently pending before the Court of Appeal of Sri Lanka [2], on 14 April 2020, the arresting officers had misrepresented themselves to Mr Hizbullah’s family as officials of the Ministry of Health. They had entered the premises on grounds connected to the COVID-19 epidemic, consequent to which they searched the premises and questioned Mr Hizbullah.

3. As a material point, the said Habeas Corpus application also revealed that during the questioning at his residence, the officers had entered Mr Hizbullah’s law chambers and accessed two case files relating to one of his clients–namely, Mohamed Yusuf Ibrahim [3], the father of two of the attackers who had detonated themselves on 21 April 2019. This is a significant encroachment into attorney-client privilege.

4. Later on 14 April 2020, upon requiring Mr Hizbullah to present himself at the CID for questioning, he was arrested. According to the Habeas Corpus application filed in the Court of Appeal, ‘[n]o reason for his arrest was provided to the best of the Petitioner’s knowledge’ [4].

5. During his detention, Mr Hizbullah had not been granted unhindered access to his Attorneys-at-Law. As reported by the media, a Fundamental Rights petition pertaining the Mr Hizbullah’s arrest that has been filed in the Supreme Court reveals that:

‘despite numerous requests, Hizbullah had been denied access to lawyers in a manner contrary to law and he was permitted very brief access to a junior counsel for approximately five minutes in the presence of police officers on 15th April 2020 and thereafter access to another Attorney on 16th April 2020 at the desk of the 4th Respondent OIC of the SIU Unit 3 who permitted the conversation to proceed for 15 minutes before terminating it. Further, the 4th Respondent Deepani Menike insisted that the interview […] be conducted in the Sinhalese language so as to enable her to understand its contents. Thereafter, until 28th April 2020, no access to lawyers was provided’ [5].

Based on the foregoing material, it is clear that the manner in which Mr Hizbullah’s arrest had taken place contravenes the Constitution of Sri Lanka and, in particular, Art. 13(1) of the Constitution, which provides that ‘[n]o person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest’.

For these reasons, the original letter dated 24 April 2020 observed that:

‘The above are all very basic guarantees to persons arrested under the law. Irrespective of the merits of the case, these guarantees should be available and assured to all persons subject to a deprivation of liberty. […] We further refer to the Constitutional provision that ‘all persons shall be presumed innocent until proven guilty’ which will be rendered meaningless if these basic protections are not guaranteed at the investigation stage’ (p.2).

In view of this, it is visibly clear that the original letter dated 24 April 2020 expressed concerns about the failure on the part of the state officials to adhere to the due process with regard to the arrest and detention of Mr Hizbullah. By no means did it purport to interfere or require the BASL to interfere with the pending investigations concerning Mr Hizbullah.

It was against this backdrop that a collective of 216 Attorneys-at-Law, including seven President’s Counsel, on 29 April 2020 submitted a letter to the BASL making a number of qualitative statements on the nature and quality of evidence presented against Mr Hizbullah. For instance, para 4 (p.3) of the said letter of response read:

‘In fact, it is common pubic knowedge [sic] now, as clearly enunciated by the Police as well as by the Police spokesman officially, and also at a media conference, that there is clear evidence of Mr. Hizbullah’s knowledge and involvement in extremist or extremist related activities and it is significant that the Police Spokesman replied to a pointed question posed by a journalist, by categorically stating that the evidence that had been elicited against Mr. Hizbullah, was beyond being merely prima facie evidence. He also expressly stated that more facts were being revealed during the investigation’.

Later at para 20 (p.6) the letter of response claimed:

‘In the circumstances, as the arrest of Mr. Hizbullah is not in connection with a matter regarding the discharge of his duties in the professional capacity, but totally outside the scope of a lawyer, being a matter as serious as an alleged connection to terrorist activity, the BASL is not permitted to intervene in to the said matter in any means and ways according to the Constitution of the BASL’.

It is unclear how the collective of 216 Attorneys-at-law who signed the letter of response came to the aforesaid conclusions. It is strange that statements made by a spokesperson for the CID at a press conference has been relied upon to conclude that ‘there is clear evidence of Mr. Hizbullah’s knowledge and involvement in extremist or extremist related activities’ and that such evidence ‘was beyond being merely prima facie evidence’ (para 4, p.3). The standard for making an arrest under the law is a ‘reasonable suspicion’ and not ‘prima facie’ evidence. As such, by claiming that the evidence (if it could be called that) as presented by the CID spokesperson is ‘clear’ and ‘prima facie’, the said Attorneys-at-Law have sought to import a certain quality to the evidence, which cannot be done unless the evidence in question is tested before a judge at an independent judicial inquiry. It is also unclear, and somewhat surprising, that the said Attorneys-at-Law go on to set out a further qualitative position on the evidence to the effect that ‘the arrest of Mr. Hizbullah is not in connection with a matter regarding the discharge of his duties in the professional capacity, but totally outside the scope of a lawyer’ (para 20, p.6). Suffice it to note that the said Attorneys-at-Law provide no basis for reaching this conclusion, and in any case, such a conclusion cannot be reached unless the nature and quality of evidence presented against Mr Hizbullah is tested before a court of law.

The letter of response also states at para 17 (p.5) that ‘what is important to stress is that Mr. Hizbullah has been detained in terms of a detention order issued under the PTA and the PTA is, as of today, valid and enforceable law’.

In this regard, it must be noted that s.7(1) of the PTA provides that:

‘Any person arrested under subsection (1) of section 6 may be kept in custody for a period not exceeding seventy-two hours and shall, unless a detention order under section 9 has been made in respect of such person, be produced before a Magistrate before the expiry of such…’

However, Mr Hizbullah has not been produced before a Magistrate so far. Thus, the failure to produce Mr Hizbullah before a Magistrate beyond the stipulated 72-hour period can only be justified on the basis of a detention order under s.9(1) of the PTA. Materially, s.9(1) of the PTA provides that:

‘Where the Minister has reason to believe or suspect that any person is connected with or concerned in any unlawful activity, the Minister may order that such person be detained for a period not exceeding three months in the first instance, in such place and subject to such conditions as may be determined by the Minister, and any such order may be extended from time to time for a period not exceeding three months at a time’.

The Minister referred to in s.9(1) is customarily the Minister in charge of the subject of Defence. However, and somewhat strangely, the current President of Sri Lanka, Mr Gotabaya Rajapaksa, who took office on 18 November 2019, has not designated a Minister for Defence in his Cabinet of Ministers. Whereas according to the Nineteenth Amendment to the Constitution, the President ‘shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of the Ministries so determined’ [6]. Although the President is the Head of the Cabinet of Ministers [7], he no longer retains the power to assign to himself or to be in charge of any subjects or functions not assigned to any minister [8]. As such, in the current circumstances, it is highly questionable whether a detention order as contemplated by s.9(1) of the PTA could have been lawfully issued, in the absence of a Minister in charge of Defence.

In fact, there is uncertainty as to whether a detention order was issued within the 72 hours stipulated by law. For instance, reports published by the International Commission of Jurists (on 21 April) [9], Lawyers for Lawyers (on 23 April) [10] and Human Rights Watch (also on 23 April)[11] have noted that Mr Hizbullah had not been served with a detention order even on the dates on which these reports were published. The stipulated 72 hours had long expired by then. Based on the Fundamental Rights petition filed in the Supreme Court of Sri Lanka in connection with Mr Hizbullah’s arrest, it appears that he was handed over a copy of a purported detention order on 25 April 2020, which he had handed over to his Attorney-at-Law on 28 April 2020. It is still unclear, however, as to when the purported detention order was issued.

Even assuming that the purported detention order was issued within the timeframe stipulated under the PTA, in the absence of a Minister being designated for the subject of Defence, it is unclear as to how such an order could have been lawfully issued by any other Minister or the President himself. As such, although the collective of 216 Attorneys-at-Laws had placed much faith on the purported detention order in their letter of response, there are some serious questions about the validity of the said order.

Lastly, the letter of response dated 29 April 2020 pleads that ‘the BASL should not intervene into the aforesaid issue and disturb the investigations, succumbing to the request of non-related third parties’ (para 22, p.6). To the contrary, those who drafted and signed the original letter dated 24 April 2020 expressly indicated that they ‘fully appreciate that investigations on any alleged or genuinely suspected offence should not be hampered’ but go onto stress that ‘the authorities should proceed only and strictly as prescribed under the law’ (p.2). As such, the letter of response responds to a request that never existed in the original letter.

I end by leaving you with a few reflections.

1. The original letter dated 24 April 2020 was purely aimed at drawing the BASL’s attention to the failure on the part of state officials to follow the due process in the arrest and detention of Mr Hizbullah. It also emphasised on how unlawful and capricious acts on the part of the State is a threat to the legal profession as a whole.

2. The letter of response dated 29 April 2020 attempts to impute guilt on the part of Mr Hizbullah when all suspects are presumed innocent under the Constitution.

3. The letter of response turns a blind eye to the blatant and obvious violations of Mr Hizbullah’s rights guaranteed under the Constitution insofar as his arrest and detention are concerned.

4. As claimed in the letter of response, if ‘clear’ and ‘prima facie’ evidence has already been revealed against Mr Hizbullah, then why is it that he is yet to be produced before a Magistrate, even though almost a month has elapsed since his arrest?

5. It is rather surprising (and alarming) to note that some Attorneys-at-Law and President’s Counsel who had signed the letter of response have been known for their neutral and objective views. It is very likely that they may have been misled or blinded by emotion in endorsing the contents of the letter of response, which is anything but neutral and objective.

6. While the BASL should remain neutral and impartial in matters such as this, where the State and its agencies have failed to comply with the due process and have acted with unreasonable delay, the BASL should intervene to the limited extent of ensuring compliance with the law.

7. The BASL, as the governing body of Attorneys-at-Law has a significant role to play in protecting the legal profession against extraneous threats that could have an adverse impact on the practise of the law.

8. When state officials begin to treat members of the legal profession without due regard to their constitutionally protected rights, we must be collectively concerned about the direction the country is taking.

Notes

[1] A video extract of the press conference is available on DAILY MIRROR’s YouTube channel: https://www.youtube.com/watch?v=JGM6TQkEGbI.

[2] The contents of the Habeas Corpus application filed by the Court of Appeal was reported in the DailyFT: see, SS Selvanayagam, ‘Habeas corpus application filed on behalf of lawyer arrested on allegations of links to Easter attacks’ DailyFT (18 April 2020) http://www.ft.lk/news/Habeas-corpus-application-filed-on-behalf-of-lawyer-arrested-on-allegations-of-links-to-Easter-attacks/56-698937.

[3] These case files were for case nos. DLM 05/10 and DSP 236/09 and was related to two cases pending before a district court in Sri Lanka (see, Selvanayagam, above [2]).

[4] Selvanayagam, above [2].

[5] SS Selvanayagam, ‘Fundamental Rights petition for Detained lawyer Hejaaz Hisbullah’ ASIAN TRIBUNE (7 May 2020) http://www.asiantribune.com/node/93973.

[6] Constitution, Art.43(2).

[7] Constitution, Art.42(3).

[8] Art.44(2) of the the Constitution before the 19th Amendment did allow this–‘The President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister under the provisions of paragraph (1) of this Article or the provisions of paragraph (1) of Article 45, and may for that purpose determine the number of Ministries to be in his charge, and accordingly, any reference in the Constitution or any written law to the Minister to whom such subject or function is assigned, shall be read and construed as a reference to the President’. The Constitution, as amended by the 19th Amendment, does not contain such a provision, which in effect acts as a curtailment on the powers of the President to self-assign any subject or function to himself.

[9] International Commission of Jurists, Sri Lanka: ICJ raises concerns about the arbitrary arrest and detention of lawyer Hejaaz Hizbullah; calls for repeal and replacement of the Prevention of Terrorism Act (21 April 2020) https://www.icj.org/sri-lanka-icj-raises-concerns-about-the-arbitrary-arrest-and-detention-of-lawyer-hejaaz-hizbullah-calls-for-repeal-and-replacement-of-the-prevention-of-terrorism-act/ (‘no remand or detention orders authorising his continued detention have been served even after the lapse of 72 hours as required by Sections 7 and 9 of the PTA’).

[10] Lawyers for Lawyers, Concerns about the arrest of lawyer Hejaaz Hizbullah (23 April 2020) https://lawyersforlawyers.org/en/concern-about-the-arbitrary-arrest-of-hejaaz-hizbullah-in-sri-lanka/ (‘however, according to our information, there is still no remand or detention order authorizing the detention of Hejaaz Hizbullah’).

[11] Human Rights Watch, Due Process Concerns in Arrests of Muslims: Government Critic, Lawyer Detained (23 April 2020) https://www.hrw.org/news/2020/04/23/sri-lanka-due-process-concerns-arrests-muslims (‘Although he is believed to be detained under the draconian Prevention of Terrorism Act, no detention order has been served, and he was not taken before a magistrate within the required 72 hours’).