THE HEEJAZ HIZBULLAH CASE AND THE FARCE OF THE PREVENTION OF TERRORISM ACT AMENDMENT
Author: Judit Kolbe
On January 7, 2022, the Sri Lankan Court of Appeal issued an order releasing a Muslim human rights and minority rights lawyer and advocate, Hejaaz Hizbullah, on bail after two years of detention and remand custody (Sooriyagoda, 2022; Ameen, 2022). He was arrested in April 2020 by the Criminal Investigation Department (CID), a department under the Sri Lankan Police (Colombo Gazette, 2022). Initially, Hizbullah was not informed of the reason for his arrest. However, he was later charged under the Prevention of Terrorism Act (PTA) and the International Covenant on Civil and Political Rights (ICCPR) Act for speech-related offences, due to certain statements he made to students after the 2019 Easter Sunday attacks (Colombo Gazette, 2022; Sooriyagoda, 2022). While Hejaaz Hizbullah’s case gained a lot of international attention, he is only one of many members of the Muslim minority community in Sri Lanka who have been arbitrarily arrested, detained or discriminated against under the PTA (Amnesty International, 2021a).
Sri Lanka’s Muslim Minority and the PTA
In Sri Lanka, the marginalization of and discrimination against the Muslim minority community are evident, with an increase in State-sanctioned violence and discrimination since 2013 (Amnesty International, 2021b). What started out as lobbying for the removal of the halal food certification, anti-Muslim riots, and anti-Muslim mob violence, mainly by Sinhala Buddhist nationalist groups, escalated after the 2019 Easter Sunday attacks (Amnesty International, 2021b). The Easter Sunday attacks were a series of coordinated suicide bombings that killed over 260 people, committed by a local Islamist group, later claimed by ISIS/ISL. The attack was aimed at the Christian community in Sri Lanka (Amnesty International, 2021b). Since then, the use of the PTA by the government and law enforcement authorities as a tool to arbitrarily detain and discriminate against the Muslim minority in Sri Lanka, is well documented (Amnesty International, 2021a; HRW, 2022a).
“While failing to prosecute the actual perpetrators [of the 2019 Easter Sunday bombings], the state has singlehandedly used the Prevention of Terrorism Act (PTA) as a cudgel to persecute the entire Muslim minority.“
– Saroor (2022).
The PTA was adopted in 1979 as a temporary legislative measure and made permanent in 1982, during Sri Lanka’s Civil War involving the government and the Liberation Tigers of Tamil Eelam (LTTE) (DeVotta, 2021). The PTA permits authorities to detain suspects of “any unlawful activity” without a prior warrant, and the detention period can be prolonged up to 18 months without specific charges being filed against the individual (Prevention of Terrorism Act 1979, Sects. 6(1) and 9(1)). There have been 109 arrests under the PTA in 2021 alone (HRW, 2022a). According to a defence lawyer for PTA cases, “during this 18-month period [the arrested individuals] are at the mercy of whichever security agency is detaining [them]” (HRW, 2022a). There have been numerous reports of torture during remands in custody and convictions based on confessions obtained under torture, as the PTA contains special rules on evidence that allow for uncorroborated confessions made to police officers to be admissible in court (HRW, 2022a; Prevention of Terrorism Act 1979, Sects. 16 and 17).
Moreover, in March 2021, the Sri Lankan government issued an extension to the PTA, namely the Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations (PTA Regulations) (Amnesty International, 2021a). These Regulations enable law enforcement authorities to detain individuals in the so-called de-radicalization, rehabilitation, and reintegration centres for up to two years without a trial, if a person “by words either spoken or intended” commits or seeks to commit “acts of violence or religious, racial or communal disharmony or feelings of ill will or hostility between different communities or racial or religious groups” (PTA Regulations 2021, Sect. 2). According to Amnesty International, after the Easter Sunday bombings, “as many as 1,800 Muslim individuals were arrested using the PTA” and other Emergency Regulations (Amnesty International 2021a).
Hejaaz Hizbullah’s Case
As mentioned in the introduction to the article, Hejaaz Hizbullah was arrested in April 2020 by the Criminal Investigation Department (CID) (Colombo Gazette, 2022). He was not informed of the reason for his arrest until March 2021, when he was officially charged under the PTA and the ICCPR Act (HRW, 2022b). Specifically, he was indicted for “inciting communal disharmony” under Sect. 2(h) PTA, “advocating national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” under Sect. 3(1) ICCPR Act, and conspiracy and abetment charges under Sects. 102 and 113(a) of the Penal Code (Amnesty International, 2021a). During the period of his detention, Hizbullah was denied “regular and unrestricted access” to his lawyers and family members (Colombo Gazette, 2022; Amnesty International, 2022).
Given that, his release on bail has been welcomed by many human rights organisations, such as Human Rights Watch (HRW) and Amnesty International, as a step in the right direction. However, they remind the international community and the Sri Lankan government that many people remain in arbitrary custody under the PTA (Amnesty International, 2022; HRW, 2022b). Furthermore, in the Court order, in which Hizbullah was granted bail, the Appeal Court recognised the need for the government to review and remove certain elements of the PTA (Ameen, A., 2022).
“The Sri Lankan authorities must ensure that all those still detained under the PTA have access to fair bail hearings and release those who have not been charged with recognizable crimes under international law.“
– Yamini Mishra, Amnesty International’s South Asia Director (Amnesty International, 2022)
Proposed PTA Amendment
On January 27, 2022, an amendment of the PTA was introduced by the Sri Lankan government in a Bill (Amendment Bill) (Prevention of Terrorism (Temporary Provisions) (Amendment), 2022). However, organisations like Human Rights Watch and the International Commission of Jurists (ICJ) were quick to declare this Amendment Bill a farce (HRW, 2022a; ICJ, 2022; Satkunanathan, 2022).
Under the intended amendment of the PTA, Clause 2 addresses the prolonged detention period, reducing it from 18 to 12 months (Prevention of Terrorism (Temporary Provisions) (Amendment), 2022; ICJ, 2022). Additionally, Clause 10 entitles a detained person to seek bail after 12 months of detention (Prevention of Terrorism (Temporary Provisions) (Amendment), 2022; ICJ, 2022). Accordingly, a person can still be deprived of liberty for a year without the chance to be heard by a court of law (ICJ, 2022).
According to Clauses 4, 5 and 12 of the Amendment Bill, suspects may challenge detention orders by way of fundamental rights petitions or writ applications (Prevention of Terrorism (Temporary Provisions) (Amendment), 2022). Nevertheless, the ICJ pointed out that this makes the “right to legal and familial access respectively […] redundant as these are constitutional safeguards to which victims are already entitled” (ICJ, 2022). However, in reality victims are often denied full and confidential access, as seen in the Hizbullah case (ICJ, 2022).
Moreover, Sect. 16 of the PTA dealing with the special rules on evidence and uncorroborated confessions, which, as explored above, has led the police to use torture in numerous cases to force confessions, is not addressed by the Amendment Bill. The vague definition of terrorism enshrined in the PTA also remains, similarly to the lack of judicial oversight of investigations and arrests of suspects (ICJ, 2022).
On December 9, 2021, seven United Nations (UN) special procedures addressed the Sri Lankan government, with all seven mandates finding that the PTA is infringing on Sri Lanka’s obligations under international law and international human rights standards (UN OHCHR, 2021; HRW, 2022a). In their letter, they laid down five benchmarks that are “necessary prerequisites to ensure the PTA is amended to be compliant with international law obligations” (UN OHCHR, 2021). These benchmarks encompass a definition of terrorism that complies with international norms, more precise legislation that complies with the principle of legal certainty, the adoption of provisions and measures that prevent and stop arbitrary deprivation of liberty, guarantee of preventive measures against torture and enforced disappearances that “adhere to their absolute prohibition”, and lastly enable “overarching due process and fair trial guarantees” (UN OHCHR, 2021). Analysing the Amendment Bill against these benchmarks, it would not bring the PTA into compliance with Sri Lanka’s obligations under international law (HRW, 2022a; Satkunanathan, 2022).
“The fatally flawed PTA cannot be cured by these disingenuous reform attempts, but must be entirely repealed.”
– Ian Seiderman, International Commission of Jurists’s Legal and Policy Director (ICJ, 2022).
The case of Hejaaz Hizbullah is emblematic of the human rights violations under the PTA, which is used by the government to violate particularly the Muslim minorities’ fundamental rights. It showcases the arbitrary power wielded by government and security officials under the PTA. The proposed amendments are not going to be effective enough to stop the violations of fundamental rights under the PTA. Only a repeal of the main elements or the whole piece of legislation is going to be sufficiently effective and bring it in conformity with international human rights obligations.
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