Hejaaz Hizbolla arrest: The legal fraternity must put the human rights of the victims before surrounding a colleague simply because he is ‘one of them’

The International Bar Association’s Human Rights Institute has written an open letter on 13 May 2020 to Sri Lanka’s Minister of Justice urging Sri Lanka to abide by due process in the case of arrested lawyer Heejaz Hizbullah. While the International Bar Association President is Horacio Bernardes Neto. The IBAHRI is only an entity within the IBA. IBAHRI President is Michael Kirby. The IBAHRI in its letter is asking Sri Lanka to ‘uphold the rights of lawyers to be able to carry out their professional responsibilities” but the arrest has nothing to do with any lawyer being denied his/her right to carry out professional responsibilities. The arrest is related to his connections to the mass murder that took place on Easter Sunday. IBAHRI should not confuse the prima facie reason for the arrest nor try to divert attention away from that fact. The rest of the letter is virtually a cut and paste of ICJ and Amnesty International statements being circulated.    https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=2685b88b-87ed-452c-83c7-19404f7b06f1

Strangely IBAHRI is issuing a statement after a drought of 7 years. Its last statement on Sri Lanka was in 2014 https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=39648b5e-489b-4634-a530-558464f9502f

The selective topics of the IBAHRI is seen in its own website https://www.ibanet.org/Human_Rights_Institute/Work_by_regions/Asia_Pacific/Sri_Lanka.aspx

A lot has since happened. How come IBAHRI did not question the due process followed in the removal of Chief Justice Mohan Pieris, if they saw fit to question the removal of Chief Justice Shirani Bandaranayake? Didn’t IBAHRI see fit to question why a sitting CJ was removed from post by not allowing him to enter his chambers on the flimsy argument that the rulers never considered him appointed as CJ. Didn’t IBAHRI want to question the status of his judgements and verdicts made during the 2 ½ years he was Sri Lanka’s Chief Justice? 

Attorney Hejaaz Hizbulla was arrested on 14 April 2020 by CID along with former Minister & ACMC Leader Rishad Bathiudeen’s brother Riyad Bathiudeen and another in connection with the Easter Sunday mass murder.

15 April 2020 – CID in writing informs BASL that the attorneys arrest and detention is owing to his connection with terrorist activity that took place on Easter Sunday.

16 April 2020 – The police spokesman informs that the arrested lawyer was associated with the bombers and had been involved with the bombers as an office bearer in an organization. The Sri Lanka Bar Association claims this association is purely based on professional capacity. However, the Bar Association President had been informed by the Registrar of the Supreme Court that the attorney’s arrest was not related to any function he attended on a professional capacity.  The arrest was due to a clear prima facie evidence against him. Was this not communicated by the BASL to the IBAHRI given that other details of the arrest had been communicated to them?https://www.lankanewsweb.net/67-general-news/60282-Arrest-of-lawyer-Hejaaz-Hizbullah-is-illegal-and-arbitrary

25 April 2020 – 158 persons most claiming to be lawyers (less than 1% of the entire lawyer fraternity in Sri Lanka) without disclosing their Bar membership numbers release petition claiming it is the right of lawyers to defend the ability to function as lawyers, without obstruction, fear or favour”

29 April 2020 – 216 attorneys giving their Bar Association member sends a detailed letter to the Bar Association President. Poignant remarks in that letter is quoted

undue collateral pressure must not be brought to bear or be exerted on the investigative process or on the investigation officers”

there are various forces and unlawful influences that are at play, who/which are attempting exert pressure to release Mr. Hizbullah and to discontinue the investigations against him, but that most fortunately, the investigation officers and the Sri Lanka Police are remaining steadfastly committed to their duties and to not succumbing to these pressures. The investigation must be taken to a full and logical conclusion and no amount of repetition would be in vain, in emphasising this fact”

Immediately after the Easter Sunday attacks in 2019, 6 foreign intelligence units arrived to assist but we are yet to know what they unravelled. The disappointment in not getting to the bottom of those who planned the attack is what has resulted in a new investigation with new teams. 

On 5th May attorney Gowry Thavarajah filed a FR seeking release of arrested lawyer http://www.themorning.lk/fr-petition-filed-seeking-release-of-detained-lawyer-hejaaz-hizbullal/

Only people in high places can pervert course of justice in preventing justice being meted

This is evident from the propaganda and hype associated with the arrest & arguments for release. Every attempt is being made to dilute the arrest – propaganda depicts his arrest due to him being a Muslim, being a minority, handling high profile cases against the govt… all of these are clearly to divert the attention of the people from wondering if the arrested lawyer really had been involved in the crime of killing innocent people.

The legal fraternity must put the human rights of the victims before surrounding a colleague simply because he is ‘one of them’. How can the legal fraternity international and local, lobby for one person immediately following arrest without giving benefit of doubt and waiting for the investigators to reveal on what grounds and why he has been arrested. 

The allegation against him is no small a crime. It is linking him to the killing of over 300 people 46 of whom were foreigners.

There is nothing the international nor local legal fraternity can say that a lawyer cannot be part of a conspiracy against the country.

Turkey arrested 14 lawyers in 2017 for alleged terrorist involvementhttps://www.dw.com/en/turkey-arrests-14-lawyers-over-alleged-terrorism-links/a-40630649

The main suicide bomber Zaharan Hashim has Rs.140million in gold and cash. This shows a bigger nexus at play.  

No one is above the law and no lawyer is above the law as well.  

The police arrests people not by status but by evidence before them. 

Lawyers on the other hand depending on their ability to argue a case can even turn a murderer into an innocent and an innocent into a murderer. The value of lawyers and their ability to twist the law increases their demand. 

The police however, can only frame charges based on the evidence before them. 

Therefore, it is morally wrong and indefensible for the international bar association human rights institute to interfere in an investigation which has hardly got off the ground. Allow the police to prove the arrested lawyer was part of the Easter Sunday plot. Defend him in court but it is incorrect to demand his release simply because he is a lawyer. This is a very specious argument. 

It is unfair by the victims who have died, the victims who are injured and the victim families who continue to mourn their dead. Did one of these lawyers writing petitions even consider to appear on behalf of them for legal issues that may require legal attention? 

But, in a matter as serious as that which happened on Easter Sunday, which is of national security risk and concern, the Government has every right to lift the lawyers cloak and determine if the arrested lawyer was involved in the mass murder.

The cloak of ethics does not apply when a criminal lawyer defends a known murderer because it is his professional service to defend a murderer and he is paid handsomely to win the case. Even if a man has committed murder, a good lawyer is able to present him as innocent and win the case based on legal arguments. Strange is the justice system that prevails.

The cloak of ethics does not excuse or exonerate anyone in the legal fraternity simply because they are a member of the legal fraternity from being investigated, arrested or even charged for wanting to kill innocent people. None of us have made any conclusions. We are all keenly watching how the investigations unfold. If there is circumstantial evidence, then he is very much answerable. Let the court decide that. Natural and probable consequences of his conduct in the Easter Sunday mass murder as well as plans to carry out further mayhem cannot be exonerated simply because the international legal forums international and local send letters and petitions. Being lawyers they should know this is not how justice is meted out. 

There is a thin line that will determine if he has provided only legal advice to the suicide bombers or whether he provided material support to carry out the suicide bombings. Let the police produce the evidence and let his legal defence argue his case and allow court to decide.

No lawyer can be afforded preferential treatment simply because he is a lawyer. In a crime of the nature that took place on Easter Sunday, all suspects whatever their status or profession should have no favors afforded to them. Given, the scale of the crime it is unfair for the Bas Association – international or local to be issuing statements without allowing the course of justice to prevail. The context of the matter is not to argue the merits or demerits of his legal professionalism but to fathom if the arrested lawyer was part of the mass murder that took place on Easter Sunday and planning another attack as revealed following mass arrests made. The Bar Associations both international & local must surely view the possibility of more murders as a concern far above demanding release of a lawyer implicated in the plot simply because he is a lawyer! 

“Not only must Justice be done; it must also be seen to be done” 

Shenali D Waduge