AG’s duplicity in Hejaaz’s case

The Attorney General’s Department on Thursday informed the Court of Appeal that it would consent to the granting of bail to Attorney-at-Law Hejaaz Hizbullah who has now been held in detention without bail for nearly two years. With this change in position by the AG’s Department, Hizbullah is expected to be granted bail on 28 January by the Puttalam High Court when his trial begins.

The arrest and detention of Hejaaz Hizbullah are demonstrative of the collective shame of the whole criminal justice system in Sri Lanka. The case has demonstrated the level of rot that has set in at every level and sphere of the judicial system. 

The young lawyer who once brilliantly argued in front of the Supreme Court to defeat the constitutional coup of 2018 was arrested on 14 April 2020 and was held without access to a lawyer for over 10 months. He was later produced by the CID before a magistrate and remanded under the Prevention of Terrorism Act (PTA). 

Initially arrested in connection with alleged involvement in the April 2019 Easter Sunday bombings, the Attorney General finally filed charges against Hizbullah nearly a year into his detention for hate speech and incitement under the PTA and the ICCPR Act. The case against Hizbullah is tenuous at best. The State’s case against Hejaaz rests on a single witness who claimed the lawyer made extremist statements at a school owned by the Save The Pearls Trust. The Trust was administered by Hizbullah.

The question that needs to be asked of the Attorney General is why consent to bail now after nearly two long years when clearly bail should have been granted. What material facts have changed in the case for this change of opinion?  

The fact of the matter is Hejaaz Hizbullah should not have been detained under the PTA in the first place. The case filed by the AG deals with hate speech and not terrorism. The AG, Police and the judiciary have denied the basic right of bail to the detainee for no apparent reason. Granting bail in Sri Lankan law is the norm and not the exception. It is unfathomable that an individual accused of hate speech, that too by a single child, has been held in detention for 21 months.

The reason why the Government has now agreed to grant bail to this prominent lawyer has nothing to do with the material facts of the case or the law. It is clearly a politically motivated move to ease the blow at the upcoming Human Rights Session in February in Geneva and to provide minimum criteria for the European Union to continue the GSP plus trade concessions.  It may be unlikely the EU will not extend the GSP concessions considering the dire economic conditions in the country. However, the concessions are closely linked with compliance with numerous human rights treaties, norms and standards. 

The use of the PTA for arbitrary detention has been a point of contention for the EU. The European Union Parliament passed a resolution against Sri Lanka in June 2021 critical of the PTA and demanded that the PTA be reformed or abolished in order to continue the GSP+ concessions. The arrest of individuals including Hizbullah has been severely criticised by the UN High Commissioner for Human Rights and numerous international human rights organisations. Eleven international organisations issued a joint statement in July 2021 urging the Government to release Hejaaz Hizbullah and others denied due process under the abusive law. 

The fact that the Attorney General’s Department has been an active enabler of the current administration’s arbitrary, often racist policies, especially using and weaponising the PTA is a matter of utter contempt. The case of Hizbullah demonstrates that professional institutions such as the Attorney General’s department have been corrupted to its very core and cannot any longer be expected to uphold the interest of the public. It is also clear that in such a pathetic situation the only remedy available for justice is through international intervention. Let there be no doubt that if Hejaaz Hisbullah is to get bail next week, it is simply because of the EU, UNHRC and the pressure exerted by international organisations.