Tribute to a great lawyer, teacher and legal academic
Oration delivered at the Law and Society Trust in December 2015
Iwill 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.
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.
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 AttorneyGeneral 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 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