R. K.W GOONESEKERE Oration delivered at the Law and Society Trust in December 2015 By Sriyan de Silva I will not touch on Rajah’s life as a practising lawyer and the contribution he made in that capacity. Other members of the bar and judges would be better placed to assess that aspect of his life. [...]

Sunday Times 2

Tribute to a great lawyer, teacher and legal academic


Oration delivered at the Law and Society Trust in December 2015
By Sriyan de Silva
I will not touch on Rajah’s life as a practising lawyer and the contribution he made in that capacity. Other members of the bar and judges would be better placed to assess that aspect of his life. Instead, I will speak about Rajah, my lecturer in Law at the University of Peradeniya from 1959 to 1962, his personal attributes which endeared him to many, and Rajah as a role model to me – all based on my personal experiences with him. However, since it is connected to Rajah’s academic life, I would like to mention in passing (though it is not within my personal experience) that he made a substantial contribution to the development of the Law College when he was its Principal, as many have said. This is not surprising given his abiding interest in legal education and teaching and education in general, and in the development and training of the minds of the country’s future legal professionals.

R.K.W. Goonesekere

While the content of his lectures was outstanding, there were other features that distinguished him as a teacher. Consequently, I myself aspired to be a lecturer, and was able to use some of his teaching methods when my friends the late Justice Mark Fernando, Priya Amerasinghe and I helped Father Peter Pillai to set up the Department of Law (the first of its kind outside the University) at Aquinas College.

Rajah compelled us to think for ourselves by encouraging us to challenge even legal principles enunciated in decided cases if we believed that any of them were wrongly decided. He did not want his students to slavishly follow them as being correct statements of the law. He also encouraged us to think, in appropriate cases, about ways in which the law should be reformed or changed. In that spirit he would give us the names of two or three Supreme Court decisions to study and analyse for the next lecture. We were expected at the next lecture to debate among ourselves as well as with him our views on these cases, thus engaging in interactive discussions. Thinking back on it after leaving the university, I realised that he was actually training us to be legal practitioners. In fact, he said that legal academics could benefit substantially by having experience in the courts of law. He was an avowed enemy of rote learning, which is the plague of much of our education system and teaching.

Another benefit students derived was Rajah’s implied message – and this is my own perception or interpretation – that the law teaches us that quite often there are two or more sides to an issue. This is a lesson that should be carried over to other aspects of our lives. A third key contribution Rajah the teacher made to our lives was to teach us to think conceptually. This is one of the great contributions the study of the law can make, and explains why more than perhaps a half century ago at universities such as Cambridge and Oxford, the combination of subjects such as law and mathematics, or law and the classics, was not uncommon. As is well known, Mr. H. V. Perera, the greatest lawyer Sri Lanka has had, perfected the art of conceptual legal thinking.

I believe he first graduated in mathematics. This aspect of Rajah was most evident in his lectures on jurisprudence, as a result of which it became one of my favourite subjects. His lectures on the subject contributed to an understanding of how several aspects of jurisprudence helped in improving one’s understanding and application of jurisprudential principles (if I may so call them) to certain branches of the law. It is perhaps the conceptual clarity and the similar skills of judges such as Mark Fernando and Ranjit Amerasinghe that helped to create a significant jurisprudence on public law in this country.

Another feature of Rajah as a teacher was that he did not mark students on the basis of giving weightage to how the answers accorded with his own views on the subject. As an illustration, in the early 1960s there was a long and animated debate between Lord Devlin, one of England’s greatest judges, and the well-known jurist and Austinian, Professor H. L. A. Hart, on the subject of law and morals which had even entered the public domain. Rajah’s fascination with this debate transferred itself to Mark Fernando, another who greatly respected Rajah, and to me. Quite certain that this would be a question at the final examination, we decided that each of us would take a different view on the subject in answering the question. We were confident that neither of us would be given higher marks simply because Rajah agreed with one particular view on this very controversial issue. Later, Rajah said that he had given each of us equal marks because he found both our presentations equally meritorious, and that there was no question of a clearly right or wrong answer. Here was another hallmark of a great teacher.

I would next like to touch on some of Rajah’s personal attributes. Rajah did not leave a space or distance between him and his students, and it is no accident that many students continued to interact with him in later life. This enabled him to really know his students as individuals and have empathy with them. An illustration based on my own experience was a certain ‘event’ which I cannot detail, which occurred at the university for which a group of students was responsible. This matter was investigated without a result. About forty five years later he referred to this incident and asked me whether I had been involved. When I admitted that I had been, he responded that he had had some suspicions at the time, thus indicating that he knew me only too well.

His egalitarianism was an endearing trait. His interest was not a person’s family background, but rather in who a person was in terms of integrity, values and qualities which result in him or her earning them the respect of fellow-beings. Just as much as Mark Fernando worked tirelessly to break what I consider the ‘class barrier’ in the legal profession for instance, by enlarging the opportunities for students without ‘connections’ to satisfy the apprenticeship requirement, so did Rajah in equal measure. This indeed was a formidable combination which helped to make the profession itself more egalitarian or equal than it was. Lawyers are no doubt aware of the case he won on equality, which has had positive consequences well beyond the rights of the child for whom he fought in this case. Rajah despised all forms of inequality be it based on race, religion, caste or class.

Another of his admirable traits was his almost extreme sense of modesty. He told me to stop referring to him as my mentor – as I had done in one of my publications as also to a few individuals in his presence, much to his embarrassment. I replied that I could not agree to this because he was a seeker of the truth, and what I had said was the truth. He said “touché” and could barely stop laughing! Another relevant example was when the late Sithy Tiruchelvam gave me a copy of Rajah’s oration titled The Arm of the Law. After I read it I told her that I thought it was brilliant and that it should be published. She felt that I might be able to influence Rajah who had so far refused to permit it to be published. She asked me to speak to him about it which I did.

He finally gave in after many protests, though on condition that I went through it again and provided him with any ideas as to how it may be improved and to even make suggestions to improve its presentation. I replied that it would be difficult to sit in judgement on my mentor, but I would nevertheless do so considering the condition he had imposed. There was however, nothing I could contribute to improve it. I might add that I mentioned to him that the last section of his oration deserved a separate and detailed treatment by him. He explained why he could not do so at his time of life, though he agreed that it would be worthwhile. For many years he also resisted attempts by Mark and me, and I believe also by his friend and mine, the late Justice Ranjit Amerasinghe, to persuade him to publish a book on a certain subject.

What I have said does not mean that Rajah and I agreed on everything. If we did our relationship would not have been as interesting to each other as it in fact was. Rajah enjoyed debate which is not personalised but is based on the merits of an issue. It is unfortunate that when we look around us today there is an increasing number of people who seem to engage in acrimonious debate.

In our conversations together, Rajah and I used to reminisce about the past, and mourn the fact that while the world today (and of course Sri Lanka) consists of many clever people, there is an increasing disconnect or gulf between cleverness on the one hand, and integrity, values and wisdom on the other – hence the difficulty for youth to find role models. We felt that among other things, education is probably failing in one of its primary objectives. We decided that if anyone were to overhear our conversations on this topic, he/she would probably think that we were two dinosaurs talking.

In a nutshell, I would describe Rajah’s life as ‘A life well lived’ – which is the title of the appreciation of him I wrote to the newspapers when he passed away.

The Singarasa case
Reproducing an article published in the Sunday Times of October 22, 2006
By R.K.W. Goonesekere
The recent judgement of the Supreme Court seeking to invalidate Sri Lanka’s accession to the Optional Protocol of the ICCPR has led to questions as to how this judgement came to be given. Yes, there was a case, and as a Senior Counsel I would like to explain the circumstances in which it came before the Supreme Court.

An application was made to the Supreme Court in 2005 for the exercise of the Court’s inherent power of revision of a conviction and sentence in 1995. This was after the views of the United Nations Human Rights Committee had been conveyed to the State, that Singarasa should be released or retried as his right to a fair trial had been breached. Singarasa had petitioned the UN Human Rights Committee by virtue of the right given to him by an international agreement or treaty entered into by the Sri Lankan State, namely the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).
The Supreme Court constituted a Divisional Bench of five judges to hear the application, and it became known as the ‘Singarasa Case’.

The legality of the constitutionality of Sri Lanka’s accession to the Optional Protocol to the ICCPR did not arise in this case, was not raised by the Court and was never argued. Indeed the time given to make oral submissions was limited and an application on behalf of the petitioner for further date of hearing was ignored.

The Supreme Court could have in passing the judgement raised the question of the treaty ratification process and left it to be decided in a suitable case, after hearing the Attorney- General on behalf of the Head of State and the Minister of Foreign Affairs, who takes the initiative and is responsible for registering the instrument of ratification or accession in the UN.

Singarasa’s application to Court was not an application to enforce or implement the views expressed by the Human Rights Committee (HRC) of the UN on an individual’s communication in terms of the protocol. It is a matter of common knowledge that the views of the HRC are not decisions binding on national courts. All that Singarasa did was to ask for a revision or review of the decisions of the Supreme Court and other courts given earlier. This is possible in our law. The views expressed by the HRC were relied on solely to seek to persuade the Court to take a fresh look at the facts and the law in Singarasa’s case. The Supreme Court was invited to reconsider the conviction and sentence of 50 year imprisonment (reduced in appeal to 35 years) in the light of HRC’s views as to the requirement of a fair trial, which is a right guaranteed in our constitution. Unfortunately the Supreme Court has seen it only as an attempt to substitute for the decisions of our courts the views of the HRC and, without looking at the facts or the law on confessions to the police, pronounced on the constitutionality of the State’s accession to the Optional Protocol in 1997. This also explains why the Court said the application was misconceived and without any legal base.

There could be no misunderstanding in the minds of the judges that the petitioner’s substantive case was that there has been a grave miscarriage of justice in his conviction, and a number of reasons were given in the petition which were totally independent of the views of the HRC. There is no reference in the judgement to these other arguments and they have not been considered. As stated above time was not given for full argument even though judgement was delivered after many months.

In its views communicated to the State the HRC of the UN had recommended that the Prevention of Terrorism Act (PTA) provision, which cast on the accused the burden of proving that a confession made to the police was not voluntary, should be amended. Singarasa had been convicted, after the confession was held admissible, for not leading any evidence to show that the alleged attacks on army camps (which formed the basis of the charges) had not taken place or that he was not involved in them. It was a golden opportunity for the Supreme Court to have emerged as the true guarantor of the rights and freedoms of people by including in a judgement- even a judgement refusing the application- a recommendation to this effect.

Singarasa was a Tamil youth of 19 or 20 who had no schooling and spoke only Tamil. His conviction was solely on the basis of a confession which was denied by him at his trial. The evidence was that he made the confession in Tamil to a police officer who understood Tamil but could not write Tamil: his confession was translated into Sinhala and written down by the same police officer. At the end of Singarasa’s statement the police officer read out to Singarasa in Tamil what he had written in Sinhala before taking his thumb impression on the record. This was all done in the presence of the senior police officer to whom a confession under the emergency regulation of the PTA had to be made. This officer understood only a little Tamil and the translation into Sinhala was also for his benefit. The Supreme Court could also have commented on the undesirability of a procedure that permitted a police officer to record a statement confessing to committing serious crime, in Sinhala, when it was made in Tamil. Had the Supreme Court done only this we would have been disappointed but satisfied that the cry for justice by Singarasa, sentenced to prison for 35 years, had been heard. It is responses like this that have made the Supreme Court of India the highly respected body it is.

Nowhere in our constitution is it said that the Supreme Court is supreme; It is but another court exercising the judicial power of the people who are sovereign. It is the people’s right to say that the Supreme Court’s pronouncement taking away a valuable right conferred on the people was per incuriam and in excess of the Court’s jurisdiction. A treaty solemnly entered into by the State in the exercise of the executive power and in terms of international law as reflected in the Vienna Convention on Treaties is not, it is submitted with respect, subject to judicial review. There is a procedure in the protocol for a state party to denounce the protocol, but until this is done, the protocol is in force in the country. It must not be forgotten that Sri Lanka’s accession to the Optional Protocol of the International Covenant on Civil and Political Rights was one of the major accomplishments of the late Lakshman Kadirgamar during his distinguished career as Foreign Minister. Both bench and bar, at the unveiling of his portrait at the law library, paid tribute to Kadirgamar’s eminence as a lawyer and to his outstanding contribution to the country as Foreign Minister.


RKW Memorial Programme for Law Students
The RKW Gooneskere Memorial Programme on Law and Justice will be launched on July 29 at 5.00pm at the Sri Lanka Foundation Institute Auditorium.

Law students from four state universities and the Law College will be selected on a merit criterion biannually for the programme. The idea is to bring them together, make a link between the university law schools and the professional law schools, and provide opportunities for intellectually stimulating interaction with each other and academics and professionals, on issues of law and justice in the community.

Each law school will conduct the programme by rotation and the Faculty of Law at the University of Colombo will coordinate the programme.

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