Fort Magistrate makes historic order in Hejaaz Hizbullah case

• Says PTA detention order does not suspend Criminal Procedure Code

Fort Magistrate Priyantha Liyanage yesterday made a historic order holding that the Prevention of Terrorism Act (PTA) does not suspend the application of the Criminal Procedure Code.

In the order pronounced in open court, Magistrate Liyanage held that all provisions related to an investigation in the Criminal Procedure Code applied to persons arrested and held in detention under the Prevention of Terrorism Act. 

Quoting from the book ‘Criminal Procedure Code’ by Professor G.L. Peiris, the Magistrate said that all investigations into any offence come under the Supervision and Control of the Magistrate, unless otherwise specifically provided by any other Act.

Earlier the Attorney General objected to submitting statements of witnesses in the Hizbullah investigation to the Magistrate. Former Magistrate Ranga Dissanayake in an order dated 19 August 2020, ordered the Criminal Investigations Department to submit a comprehensive report on all statements obtained in the process of the investigations into prominent Attorney-at-Law Hejaaz Hizbullah.

The CID did not comply with the order. 

Thereafter lawyers for Hizbullah filed a motion seeking adherence to the order after which the Attorney General objected stating that investigations under the PTA were not subject to the supervision of the Magistrate.

Lawyers for Hizbullah pointed out that the Criminal Procedure Code applied at all times unless there were contrary provisions in special laws. They said citing a landmark Supreme Court judgment of Justice Mark Fernando in the case of Weerawansa V Attorney General that there was no contrary provision in the Prevention of Terrorism Act with regard to investigations and reporting of facts before the Magistrate. 

The request for submitting all statements obtained during the investigations into Hizbullah came after his lawyers pointed out that the Criminal Investigations Department was submitting partial facts to Court for media publicity. 

Lawyers said that the statements of all persons obtained during the investigation including the teachers of Al-Zuhriya Arabic School and other members of Save the Pearls organisation would exonerate Hizbullah of any wrongdoing. 

Earlier the officers of the Criminal Investigations Department in a series of media leaks said that Hizbullah had provided terrorist training at the Arabic College. Thereafter two children made confessions before Magistrate Ranga Dissanayake on 12 May 2020. On the very same evening and the next day newspapers splashed the contents of the purported statements.

Thereafter, lawyers for Hizbullah informed Court that the only mode in which the confessions could have been leaked to the media were through the CID and that they had in fact coerced the children into making the statements. Four Children filed Fundamental Rights applications before the Supreme Court alleging coercion by the CID.

Magistrate Ranga Disanayake thereafter in open court said that the CID officers had attempted to show photographs of Hizbullah inside his chamber to the children. He thereafter made order to investigate how confessions which were made to him in confidence were leaked to the media. In the order dated 1 July 2020 the Magistrate said that the ‘leak’ goes to the root of the integrity of the Court. 

In his order the Magistrate quoting a judgment of the Supreme Court also said that the detention order by the Minister of Defence was only to investigate an offence and not to punish a person held in custody.

The CID was ordered to submit a comprehensive report including all statements obtained in the Court of the investigation into Hejaaz Hizbullah on 24 February.

President’s Counsel Nalinda Indathissa, Hafeel Farisz, Dhanushan Kaneshayogan and Kavindu Indathissa appeared for Hejaaz Hizbullah.

Hizbullah was arrested on the 14 April 2020 for alleged phone conversations he had with one of the suicide bombers, Inshaf Ahamed. 

He was also alleged to have provided terrorist training to students at an Arabic school in Puttalam. The students were given scholarships to the school by Save the Pearls, a charity headed by Hizbullah. 

The sleuths also alleged that Hizbullahs charity received funding from Qatar Charity which they named as a terror funding organisation. 

A poet Mohomed Ahnaf was also arrested after copies of a book titled Nawarasam were found in a building owned by Save the Pearls in Putthalam. The poet remains incarcerated to date.