Fundamental Rights petition seeks to extricate detained lawyer Hejaaz Hizbullah

By S.S. Selvanayagam

A Fundamental Rights Violation Petition was filed on Tuesday 5 May on behalf of lawyer Hejaaz Hizbullah, who is purportedly under custody on detention order.

Hejaaz Hizbullah

The Petition was filed by senior Attorney-at-Law Gowry Shangary Thavarajah citing Acting IGP C.D. Wickramaratne, Director of CID SSP W. Thilakaratne, Chief Inspector Karunatilaka of the CID, OIC of the SIU Unit 3 Deepani Menike, OIC of the CID Mihindu Abeysinghe, as well as the Attorney General Dappula de Livera as Respondents.

Petitioner Gowry Shangary Thavarajah filed the petition upon her personal knowledge, from documents and information made available to her and from instructions.

She received instructions from the Hizbullah family, namely his Egyptian wife Mariam M. Khalifa and his father Neina Mohamed Hizbullah.

She states on instruction that the following transpired on or about 14 April 2020:

Hizbullah received a phone call at around 4.00 pm, purportedly from a person identifying himself as an officer of the Ministry of Health. The said person had asked Hizbullah if he withdrew cash from a specific ATM machine, to which Hizbullah responded in the affirmative;

Hizbullah was thereafter informed to stay at his house and to expect a visit from officials of the Ministry of Health, and he, his wife, and his mother-in-law accordingly stayed at home, expecting a visit from officials of the Ministry of Health;

At around 5 pm, five persons including a female arrived at his residence identified themselves as being from the CID, and Hizbullah was thereafter handcuffed and asked to sit on a sofa in the house in the presence of his wife and his mother-in-law, without informing any reason whatsoever;

The said persons questioned Hizbullah with regard to a person named “Mubarak”. Hizbullah denied knowledge of a person by the said name, and they then proceeded to take into their custody the personal laptop of Hizbullah and several flash drives.

They thereafter said they were mistaken about “Mubarak”, and that the person regarding whom they intended to question him was “Ibrahim”, and Hizbullah had informed them that he had a client by the name of Mohomed Yusuf Mohomed Ibrahim and appeared on his behalf in case No. DLM 05/10 and DSP 236/09 in or around 2014/2015, after the cases were referred to him by a President’s Counsel who had handled the matters previously;

They then recorded a statement from him, and his wife was directed to place her signature on a statement written in Sinhalese, which she did while she does not read or understand the Sinhalese language;

Then Hizbullah was ordered to be present at the CID on 15 April 2020. Shortly thereafter one of the persons received a call. They then informed him and his wife that he should accompany them to the Criminal Investigations Department.

Thereafter Hizbullah was taken to the 4th floor of the CID and the Chief Inspector Karunatilaka informed Hizbullah that he was to be arrested and gave no reasons whatsoever for his arrest and no receipt of arrest was issued to the Hizbullah family.

However, the Police Spokesman held a press conference on 15 April 2020 and informed the public that Hizbullah was arrested and detained due to involvement in the Easter Sunday terror attacks. He also informed the public that Hizbullah is “suspected of involvement” in the Easter Sunday terror attacks, and when questioned stated that Hizbullah was arrested because information had been unearthed that:

(a)    Hizbullah had been in contact with two of the Easter Sunday bombers

(b)    Had interacted with the bombers through various organisations

(c)     Had various contacts with respect to the preparation for the attacks

The Police Spokesman had also stated that the steps taken by the Police were without seeking advice from the Attorney General. At another press conference, he provided more information about the arrest, and said that the focus of the investigation was that Hizbullah had formed youth organisations with the suicide bombers, through which extremism had been spread.

Petitioner states that despite numerous requests, Hizbullah had been denied access to lawyers in a manner contrary to law, and he was permitted only very brief access to a junior counsel for approximately five minutes in the presence of Police officers on 15 April 2020, and thereafter access to another Attorney on 16 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 would be conducted in the Sinhalese language, so as to enable her to understand its contents. Thereafter, until 28 April 2020, no access to lawyers was provided.

With the exception of a brief visit on 16 April 2020 where his wife only was permitted to meet him for approximately 10 minutes, Hizbullah had not been permitted to meet his family and all requests for the same have been denied, until 3 May 2020 when his wife was permitted to meet him.

Petitioner was instructed that Hizbullah repeatedly said to the lawyer that there was evidence which would exonerate him completely, and has said “these are crucial, it will prove I knew absolutely nothing and that I am completely innocent.”

The Officer in Charge of SIU Unit 3 interjected and told Hizbullah that he could inform the investigators of the said evidence, and the lawyer was told by her that what Hizbullah intends to say forms a part of the investigations, and that he was precluded from informing the Attorney-at-Law about the said evidence. As such, Hizbullah was unable to disclose to his Attorney-at-Law matters which he believed would exonerate him.

Petitioner states that in the circumstances:

(a)    Hizbullah has been denied the assistance and advice of an Attorney-at-Law and has been informed that no access would be provided to him in the future;

(b)    The said Attorneys-at-Law who sought to assist, advice and represent Hizbullah have been denied the meaningful exercise to their right to do so;

(c)     Hizbullah has been denied the effective exercise of his Right to be heard and be properly represented by an Attorney-at-Law before the Court of Appeal and the Supreme Court.

The wife of Hizbullah received a call from him on 1 May 2020. During the said call he sounded anxious and informed his wife that there was “something sinister” taking place and pleaded with his wife to inform the Human Rights Commission to visit him.

Petitioner states that contrary to law, Hizbullah has not been produced before a Magistrate since his arrest, and that despite him being arrested on 14 April 2020, a copy of the purported Detention Order was said to have been handed over to him on 25 April 2020. Hizbullah in turn made the same available to his Attorney-at-Law on 28 April 2020.

Petitioner states that ex facie, the purported Detention Order is no Detention Order in law, inasmuch as it has not been issued by the Minister of Defence, and the purported Detention Order is unlawful, void ab initio, and has no force or effect in law inter alia in that:

(a)    The said purported Detention Order has not been made in terms of the law;

(b)    There is no basis on which to detain Hizbullah;

(c)     There is no material to reasonably believe or suspect that he is connected with or concerned in any unlawful activity

(d)    The President would have been misled by officers of the 1st Respondent and/or the CID and/or others with respect to Hizbullah which resulted in his unlawful detention.

 She states that no rational object and/or purpose is served by keeping Hizbullah in detention and the said detention is arbitrary.

In the aftermath of the Easter Sunday attacks, he and his other Muslim classmates organised an interreligious iftar celebration for all members of his school batch, where religious clergy from all 4 religions – a Venerable Buddhist monk, a Hindu priest, Christian priest and Muslim Maulavi – officiated and spoke on topics related to peace and humanity and conducted prayers.

Petitioner states that the conduct of one and/or more of the Respondents impugned above in respect of Hizbullah is:

(a)    Ultra vires the law and the Constitution;

(b)    Void ab initio and of no force or effect in law;

(c)     In breach of natural justice;

(d)    Irrational

(e)    In breach of the principles of reasonableness and proportionality;

(f)      In breach of the duty to give reasons;

(g)    In breach of the principle of legitimate expectations;

(h)    Motivated by improper and/or extraneous considerations and mala fides.

She states the arrest of Hizbullah, his detention and the manner of detention, as well as his treatment including the denial of access to lawyers and family, are in violation of the law and the Constitution, as well as the denial of access to a lawyer, and the denial of an opportunity to disclose material that he has stated will demonstrate his innocence seriously jeopardises and undermines his right to seek redress from the Supreme Court.

Petitioner seeks the court to

(a)    Grant leave to proceed in the first instance;

(b)    Grant and issue Interim Orders directing the 1st and/or 2nd and/or 3rd and/or 4th and/or 5th Respondents until the hearing and final determination to:

(c)     Permit designated lawyers representing Hizbullah to have access to him on such dates and times as determined by the Supreme Court as well as to permit in the same manner his wife, siblings and parents to visit him on such dates and times as determined by Court.

She is asking an Interim Order from the court to immediately produce Hizbullah before the relevant Magistrate’s Court and/or before this Court, as well as another Interim Order directing his release from custody on such terms and conditions which the Court deems reasonable, pending the hearing and final determination.

She seeks the Court to make Interim Order suspending and/or varying the operation of the purported Detention Order and/or the decisions contained therein pending the final hearing and determination.

She seeks a Declaration from the Court that the acts and/or omissions of one and/or more of the Respondents inclusive of the arrest and/or detention and/or issuance of a Detention Order in this respect constitute infringements and/or imminent infringements and/or continuing infringements of his fundamental rights guaranteed by the Constitution.

She asks for Declarations that his arrest is unlawful, void ab initio and of no force or effect in law and his detention is unlawful, void ab initio and of no force or effect in law; as well as an Order quashing and/or declaring that the purported Detention Order and/or the decisions contained therein are unlawful, void ab initio and of no force or effect in law.