Lawyers for Lawyers, the
Bar Human Rights Committee, the International Bar Association's Human
Rights Committee (IBAHRI), International Commission of
Jurists, the Law Society of England and Wales, and Lawyers'
Rights Watch Canada, the International Federation for Human Rights
(FIDH), and the World Organisation Against Torture (OMCT) are
concerned about the ongoing violations of fair trial rights in the
ongoing trial of Sri Lankan lawyer and human rights defender Hejaaz
Hizbullah. Key witnesses have been subject to threat, coercion,
intimidation and arrest.
Lawyer and defender of
the Muslim community in Sri Lanka Hejaaz Hizbullah, detained for
almost two years, is still the object of judicial harassment and it
has been reported that several trial violation, including witness
intimidation and coercion. He is due to appear in court on July 14,
2023 for his next trial. Civil society organisations and lawyers
support’s association, including FIDH and the World Organisation
Against Torture (OMCT) within the framework of the Observatory for
the Protection of Human Rights Defenders express their concern
We have strong reasons to
believe Mr Hizbullah is being persecuted for his work to defend the
rights of persons from the Muslim community in Sri Lanka in his
capacity as a lawyer and human rights defender. Mr Hizbullah’s next
trial date is scheduled for 14 July 2023, but given recent reports of
witness intimidation and coercion, we have grave concerns that he
will be denied a fair trial.
Mr Hizbullah is a lawyer and
human rights defender known for advocating for the members of the
minority Muslim Community in Sri Lanka. He has advised and
represented victims of discrimination, particularly in the form of
hate speech and hate-based violence in Sri Lanka since 2012.
On 14 April 2020, Mr.
Hizbullah was arrested by the Criminal Investigation Department (CID)
under the Prevention of Terrorism Act (PTA) of 1978. No reasons for
his arrest were provided to him and his family at the time of his
arrest. During the first eight months of this pre-trial detention, he
was denied access to a lawyer. It was almost a year after his arrest
on 3 March 2021 that Mr. Hizbullah was officially charged
with “inciting
communal disharmony” under the PTA, for “advocating
national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence” under the International
Covenant of Civil and Political Rights Act of 2007 and for
conspiracy and abetment charges under the Penal Code. These charges
all relate to a speech that Mr Hizbullah was alleged to have
made at the Al-Zuhriya Arabic College in August 2018. Mr Hizbullah
denies having made the speech and evidence is available for his
whereabouts at the time of the alleged speech.
Mr. Hizbullah was detained
for almost two years following arrest. He was initially refused bail
at a court hearing on 28 January 2022, even though the
Attorney-General did not object to his release, because the Puttalam
High Court claimed to not have jurisdiction over bail decisions under
the PTA It was only on 7 February 2022 that Mr Hizbullah was
able to successfully challenge his refusal of bail, but his charges
remain, and he is due to appear in court again on 14 July 2023.
The prolonged detention
without charge or access to lawyers constitute a violation of rights
under article 9 the International Covenant on Civil and Political
Rights, to which Sri Lanka is a party.
We are deeply concerned to
hear reliable reports of witness intimidation and coercion in Mr
Hizbullah’s case. Four children aged between 11 and 14 complained
to the Supreme Court that they were subject to extreme pressure
through threats by CID agents to give incriminating evidence against
Mr Hizbullah. An administrator supporting the work of the Arabic
College who was arrested after Mr Hizbullah was arrested was
allegedly threatened with long term detention if he did not
incriminate Mr Hizbullah of having engaged in hate speech and
terrorism. The administrator was later also arrested by the CID on 3
May 2020, given bail in 2022, but only discharged on 7 June 2023. The
principal of the college was also arrested in 2020, and consequently
given bail in 2021, but the criminal charges against him have not
been dropped. Two teachers at the Arabic College who were arrested in
2021 have complained that they were pressured to implicate Mr
Hizbullah in exchange for early release from executive detention. The
two teachers were granted bail in 2022, but to date also still have
criminal charges filed against them.
On
18 May 2023, four more people connected to the Arabic College who are
potential defence witnesses for Mr Hizbullah were also arrested
under the PTA by the CID, acting on advice of the Attorney-General.
We understand that the synopsis of evidence was only produced against
them when they were produced before the Court on 31 May 2023. Two of
these witnesses were subsequently released on 7 June 2023, but two,
both teachers at the Arabic College, were retained and criminally
charged under the ICCPR Act of 2007.i
We are concerned that these arrests are designed to deprive Mr
Hizbullah of credible witnesses to challenge the case of the
prosecution. All key defence witnesses have now been subjected
to arbitrary arrests and detention under the PTA and/or ICCPR Act of
2007 in the past years. Several still face criminal charges.
Mr Hizbullah is the first
lawyer to be prosecuted and be subject to prolonged pre-trial
detention under the PTA. The PTA has faced severe international
criticism for undermining the right to a fair trial and the freedom
of expression, and for suppressing political dissent. The European
Parliament
and several Special Rapporteurs of the United Nations have
urged Sri Lanka to reform the PTA due to its failure to comply with
international human rights obligations. The Sri Lankan Government has
continuously pledged to reform the PTA but has failed to
implement meaningful amendments.iv
Given the nature of the
charges against Mr Hizbullah, his prolonged pre-trial detention,
intimidation to key witnesses, the
undersigned organisations have strong reasons to believe that he
is subject to politically-motivated criminal proceedings on spurious
grounds and his fair trial rights are severely undermined. We are
concerned that the charges brought against Mr Hizbullah are aimed at
curbing his legitimate activities as a lawyer and a human rights
defender, and an attempt to suppress freedom of expression, including
political dissent in Sri Lanka.
The United Nations Basic
Principles on the Role of Lawyersv,
in particular to Article 16, which states that:
Governments shall ensure
that lawyers (a) are able to perform all of their professional
functions without intimidation, hindrance, harassment or improper
interference; (...) and (c) shall not suffer, or be threatened with,
prosecution or administrative, economic or other sanctions for any
action taken in accordance with recognized professional duties,
standards and ethics.
In view of the above, we
urge the government of Sri Lanka to:
-
Ensure that Mr Hizbullah is
afforded all the elements of a fair trial under international law;
-
End all acts of
harassment against Mr Hizbullah;
-
Immediately stop the
arbitrary arrest, threath of arrest, coercion and other intimidation
of witnesses in his case;
-
Immediately release the
remaining two potential defence witnesses who were arrested on 18
May;
-
Reform the PTA and bring it
in line with Sri Lanka’s international human rights obligations;
-
Ensure that all lawyers and
human rights defenders in Sri Lanka are able to carry out their
legitimate professional activities without fear of reprisals and
free of undue interference.
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