The Singarasa case

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 evi- 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, dence 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 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. 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.