The Court of Appeal yesterday granted bail to human rights lawyer Hejaaz Hizbullah, who has been held under the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA) for around 22 months, but he is yet to be released as a motion will have to be filed at the Puttalam High Court (HC) for the release.
The petition filed at the Court of Appeal was heard before Justices Menaka Wijesundera and Neil Iddawala yesterday, where they directed the relevant court (the Puttalam HC) to grant bail to Hizbullah.
Although Foreign Minister Prof G.L. Peiris told diplomats last month that the Attorney General has no objection to granting bail to Hizbullah, the Puttalam HC last month said that it does not have the necessary jurisdiction to grant bail under the PTA.
Issuing the order yesterday, the Court of Appeal noted that while it is the responsibility of the legislature/Parliament to amend the draconian elements of laws combating terrorism, it is up to the Judiciary to interpret those elements in the interests of justice.
“Four decades have passed and the PTA has strayed far from its historical context. The PTA, if in its application and implementation, creates a vicious cycle of abuse, the very purpose of the statute is defeated. The preamble of the Act refers to the affirmation that ‘men and institutions remain free only when freedom is founded upon the respect for the rule of law and that grievances should be redressed by a constitutional method’. However, it is alleged that the PTA has been utilised at times to the detriment of personal liberty by its draconian implementation. Ultimately, it is up to the legislature to ensure that the draconian elements of the law combating terrorism are dispensed with modern-day contexts. Until such time, it is the Judiciary’s duty to employ existing legal provisions and constitutional powers to interpret the same elements in the interests of justice,” said the Court of Appeal yesterday.
Thus, the conditions of bail are a cash bail of Rs. 100,000, two surety bails of Rs. 500,000 each (Rs. 1 million in total), that Hizbullah report to the Puttalam Police Division twice a month, that his passport be submitted to the Puttalam HC, that his permanent residential address be submitted to the Puttalam HC, and that he not interfere with the witnesses under any circumstances.
Hizbullah, who was arrested in April 2020, was charged almost a year later, under Section 2(1)(h) of the PTA (by words either spoken or intended to be read or by signs or by visible representations or otherwise causes or intends to cause the commission of acts of violence or religious, racial, or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups) and Section 3(1) of the International Covenant on Civil and Political Rights (ICCPR) Act (incitement to discrimination, hostility, or violence). He was first arrested over alleged links to the Easter Sunday terror attacks, although evidence of terror-related activity was never produced.
Commenting on the decision yesterday, Amnesty International South Asia, who named Hizbullah a “prisoner of conscience” last year, said that while granting him bail is a relief, “he should not have spent a day behind bars in the first place without committing any offence”.
“He was in prolonged detention under the draconian PTA, without a shred of credible evidence. We call on the authorities to drop all charges against him and to release him unconditionally. The authorities must immediately review the detention of all those held under the PTA, ensure adequate access to fair bail hearings, and immediately release all those not facing internationally recognisable charges,” Amnesty International South Asia Tweeted yesterday.
Opposition and Samagi Jana Balawegeya (SJB) Leader Sajith Premadasa Tweeted: “Hizbullah’s release after 20 months of detainment based on baseless charges is proof that the PTA is not a tool but a weapon.”
Similarly, SJB Parliamentarian Eran Wickramaratne Tweeted that while he welcomes news of bail being granted to Hizbullah, “we must not waver from our call to repeal the much-abused PTA that was used to detain him in the first place. We must ensure that there will be no more prisoners of conscience like Hizbullah”.
The European Parliament, earlier last year, called on the Government of Sri Lanka to repeal the PTA and the European Commission to consider the temporary withdrawal of the Generalised Scheme of Preferences Plus (GSP+) trade concessions from Sri Lanka if it is not done, where they specifically noted the prolonged detention of Hizbullah.