RKW Goonesekere Memorial Programme on Law and Justice

Deshamanya Dr. RKW Goonesekere

“My Lords, I stand before you, conscious that what is at stake is the independence of the judiciary, not the independence of the judiciary as a chapter in a book on Constitutional law, not the independence of the judiciary as the theme of a seminar, not the independence of the judiciary as the subject of an erudite professional speech from a public platform, but as a practical reality. I stand for an independent judiciary, and the general body of legal practitioners is interested in an independent judiciary, for one of the objectives of the Bar Association is the promotion and protection of human rights and liberties.”

-Hand written note by Mr. RKW Goonersekere, for an opening address in a case before the Supreme Court.

The above is an extract that reflects the philosophy of late Mr. RKW Goonesekere, whose thinking, inspired many generations who came after him. Admired by many for numerous contributions to the Sri Lankan community, Mr. Goonesekere’s work is multi-faceted, varying from contributions to the legal profession, legal education, public life and the development of the law in Sri Lanka.

Born on 8^th May 1928, Mr. Goonesekere was the first graduate of the Department of Law of the (then) University of Ceylon. Mr. Goonesekere was a legal scholar and a lawyer of eminence. He served in the capacity of a Lecturer in Law and a Senior Lecturer in Law at the University of Ceylon (Peradeniya) and was later appointed as the Chancellor of the same university (2002-2007). He was one time Principal of the Sri Lanka Law College (1966-1974) and was an Associate Professor of Law at Ahamadu Bello University, Nigeria (1978-1982). In his capacity as a scholar and a teacher, he influenced the lives of leading legal academics and practitioners of the Sri LankanBar. He is idolized by his students as an inspiring, intellectually stimulating teacher and a scholar and recognized for carrying his knowledge and wisdom with humility. Among students, he was known to be a teacher who had an easy grasp of complicated issues of the law “which enabled him to explain them with a rare clarity.” Respectfully referred to as ‘magister magistrorum’ or teacher of teachers, he was the model for the many students who themselves became law professors and leading practitioners later.

Mr. Goonesekere has held many positions locally and internationally. He acted in the capacity of a Member of the Law Commission, Sri Lanka, Expert Member of the UN Sub-Commission on Promotion and Protection of Human Rights (1998-2001), Member of the UN Sub-Commission’s Working Committee on Discrimination, Founder Member and Chairman of the Civil Rights Movement of Sri Lanka, and the Chairman of Law and Society Trust (2007-July 2014).

Mr. Goonesekere was a versatile writer on a wide range of subjects in public and private law, such as Administrative Law, Criminal Law, Constitutional Law, Human Rights, Family Law and Land Law. His published writing, dealt with current issues of law and justice, such as corruption, electoral reforms, capital punishment, monolingual education and the impact of the 18^th Amendment to the Constitution of Sri Lanka.‘FR Casebook I’, ‘FR Casebook II’ and ‘Selected Laws on State Lands’ are a few out of his many publications, which have been printed and reprinted based on popular demand, and continue to be used by academics and practicing lawyers. Less well-known is a publication on the Sri Lanka law on Bribery and Corruption.

A lawyer of eminence, Mr. Goonesekere was a distinguished member of the Bar. He was known for setting an example from his demeanor and conduct. His contribution and influence to the profession as Counsel is seen in landmark cases such as “Eppawela case” (2000), “Editors’ Guild case” (2000),“SLBC case” (1996), “Ratawesi Peramuna case” (1994) and “Janaghosha case” (1993) which changed the discourse on justice in the country. Moreover, he appeared as amicus curiae at the invitation of the Supreme Court in the groundbreaking case of“Abeysunderea v. Abeysundera” (1998). He is admired for his work as a human rights lawyer who actively strived to use litigation to deliver justice, at a time when the country was going through turmoil. The last case he argued in the Supreme Court was the “Singarasa Case” (2006) on torture in detention. In the case he argued on the application of international law in the domestic legal system of Sri Lanka. He submitted to court, with respect, that“A treaty solemnly entered into by the State, in the exercise of the executive power and in terms of international law, is not subject to judicial review.”

Dr. A.R.B. Amarasinghe, Late Justice of the Supreme Court in admiration of Mr. Goonesekere’s personality acknowledged that “he had a keen faculty of perception and a delicate sense of what was right and wrong, fitting and proper at the time….he did not make the mistake of thinking that he was to go into the profession to win for his clients by whatever means he could. He resolved to win by justice.” He is fondly remembered as a Counsel who appeared pro bono for completely unknown persons seeking legal aid, arguing “causes rather than cases.”

Tributes to Mr. RKW Goonesekerehave recognized him as“a man of great generousity of spirit, of sharp intellectual and legal insight and above all, an unflinching commitment to the values of integrity, justice and human rights.”His life reflects a vision that is inspiring, setting standards that we must strive to continue.

It is hoped that the ‘RKW Goonesekere Memorial Programme on Law and Justice’ that is being inaugurated on 29^th July 2016 will inspire law students selected for this Programme to internalize in their own professional lives the abiding values on law and justice that guided Mr. Goonesekere as a legal academic and a practicing lawyer.

Mr. RKW Goonesekere with Mr. J Sri Ramanathan, Mr. Desmond Fernando and Mr. Lakshman Kadirgamar (who was a former student of Mr. Goonesekere) in New Delhi in 1971

With Lakshman Kadirgamar and Prof. ECS Wade while participating in the Commercial Law Conference in 1971. Rashtrapathi Bhavan, New Delhi, India in the background

Moments Mr. Goonesekere shared with his family

Prof. J. Wickremasinghe- VC, University of Sri Jayawardenepura, Prof. S. Goonesekere- VC, Univeristy of Colombo, Prof. Mookiah- VC, Eastern University, Mr. RKW Goonesekere and Mr N. Warakulle, Secretary CVCD at Association of Commonwealth Universities Meeting of the Vice-Chancellors in Cypress- April 2001

THE SUNDAY TIMES 2 – Sunday, July 24, 2016 at page 10

Tribute to a great lawyer, teacher and legal academic

R.K.W. Goonesekere

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. 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. 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.

Original article is available at:

http://www.sundaytimes.lk/160724/sunday-times-2/tribute-to-a-great-lawyer-teacher-and-legal-academic-202081.html

Sunday Island – July 24, 2016 at page 13

The Singarasa Case A Brief Comment

R K W Goonesekera

 by R K W Goonesekera

The recent judgement of the Supreme Court seeking to invalidate Sri Lanka’s accession to the Optional Protocol to the ICCPR has led to questions as to how this judgement came to be given. Yes, there was a case and as 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 retired 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 or constitutionality of Sri Lanka’s accession to the Optional protocol to the ICCPR did not arise in this case, was not raised by Court and was never argued. Indeed the time given to make oral submissions was limited and an application on behalf of the petitioner for a further date of hearing was ignored.

The Supreme Court could have in passing in 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 executive 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 years imprisonment (reduced in appeal to 35 years) in the light of the HRC’s views as to the requirements 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 Judges that the petitioner’s substantive case was that there had 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 a senior police officer to whom a confession under the emergency regulations or 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 crimes, 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.

(First Published on Oct. 22, 2006)

RKW: Dignified, humane but incisive and conceptually sound

by Geoffrey Alagaratnam

President, Bar Association of Sri Lanka

My earliest recollection of the name R K W Goonesekera was when as an undergraduate, I happened to read an article of his, related to the Registration of Documents Ordinance.

He had criticized a judgement of the well known Supreme Court Judge Noel Gratien as being contrary to the intention of the Registration of Documents Ordinance. I was keen to find out who is R. K. W. Goonesekera?

I did not have the privilege of studying throughout Law College but was privileged to work with him as Junior Counsel and also on occasions when I consulted him in matters legal.

His approach as a Counsel was dignified, humane but incisive and conceptually sound. He followed the glowing tradition now sadly somewhat gone due perhaps to overcrowding of the profession, of always being of assistance to junior members of the profession.

On most mornings when courts were in session, RKW, as we referred to him, would be seen on the 2nd floor or what we consider the entrance area of the Supreme Court in a comfortable arm chair near the lift, in a very casual pose as if he had no case or worry for the day!

I later discovered and have also received benefits from this exercise of his! It was a tradition when seniors would sit around for a while before court begins. (In the District Court area, I am informed that there was an identified table for this purpose where seniors sat). The object of this sitting around was to indicate that he was available for juniors who required a quick clarification or assistance legal in nature. He would patiently guide the juniors with his knowledge and experience – though not spoon feeding them. He would provide pointers or guidance on how to proceed and indicate sources or authorities to be checked up. Many seniors did this then!

As a Counsel, one of the major impressions he created on me was when he advised me on drafting pleadings.

He told me, ‘Geoff, whatever actions you plan, first identify whom you want to sue or go against. Are they the correct people to seek relief from or will the law stand in your way let alone the facts. Before that, decide what relief you want. Be clear in your mind as to what you want as relief or remedies from the Court – is it something practical which the court can give and is it in keeping with policy and justice? Then think backwards. If you have clearly identified your relief and think you can get it, then fill in the body of the pleadings with the facts and sequence in clear precise paras like telling a story to show how and why you are entitled to relief’.

I think that sums up the essence of good drafting. Often in a rush of blood we say let’s go to court, let’s sue the guys without first considering what we want from court and whether we can get it. As often said It is always necessary to look before you leap.

For RKW if a situation demanded justice, he would appear for a party irrespective of political connotations, affiliations and whether or not he was going against the government of the day. Though I suspected that he had a slight sympathy for some persons in the SLFP, that did not deter him appearing against individuals in the SLFP or when the SLFP was in government, except in very rare situations where he perhaps felt he could not go all out or give of his best due to knowing individuals too closely but not due to political loyalty or servility. In other words, he maintained professional independence, integrity and dignity free from political bias in the discharge of his professional duties.

I remember, how Officials of the Bar had to persuade RKW to lead us in the challenge to the appointment of a Judge of the Supreme Court. His opening lines in that case are still remembered and worthy of repetition.

“My Lords, I stand before you, conscious that what is at stake is the independence of the judiciary, not independence of the judiciary as a chapter in a book on Constitutional Law, not independence of the judiciary as the subject of an erudite professional speech from a public platform, but as a practical reality. I stand for an independent judiciary and the general body of legal practitioners interested in an independent judiciary, for one of the objectives of the Bar Association is the promotion and protection of human rights and liberties”.

We lost but perhaps we made a point. History demonstrated that we had a cause though we fought and lost.

We have fought many such controversial cases and lost, and RKW took it with equal humility but I think we all ended up making a statement. I am however comforted by the thought that though we lost, it’s better to have loved and lost rather than to have never loved at all.

RKW gradually gave up his practice and went into academic and research retirement, if I may call it.

I say we failed him, as RKW at his point of leaving the courts behind, had much more of vibrant advocacy in him. We have to take the blame as, had the majority of us stood together for the cause of the profession sans politics or personal affiliation, then the era of decline in our judicial system would not have even been history.

RKW’s vision for the profession, was years ahead. He desired a sound academic legal educational background prior to finishing off at Law School or Law College on the professional aspects rather than a crash course at Law College where learning tended to be more by rote and cyclostyled notes and past question papers. Had his thinking been accepted, we may have had more enlightened professionals and a truly learned profession.

Yet, though he moved away from active legal practice in court, he continued to make an impact on the legal system and governance. He critiqued cases of the Supreme Court considered as landmark cases such as the Waters’ Edge and LMS cases which expounded the public trust doctrine as being erroneous on the fundamental principles that those cases themselves should never have been entertained within the fundamental rights jurisdiction of the Supreme Court.

I have been convinced that genius and brilliance comes from the clear simple approach to things and ideas and sometimes brilliance is more in discovering and articulating well, what is obvious.

My emphasizing this is merely to explain to you that the brilliance of RKW was to simply and precisely expound what was often based on the fundamental and obvious which others with the cluttering of their minds would not perceive. His was a relaxed and if I may say contemplative innovativeness which was essential to expound and expose the sublime.

I believe, the profession owes a debt of gratitude to a man who stood tall, undeterred and with dignity in the cause of the profession and notwithstanding the discomfort he may have felt when espousing a cause of which he was convinced

We shall revere his memory.

RKW Goonesekere Memorial Program: Law and Justice to be launched on July 29

The Faculty of Law University of Colombo has received an endowment to conduct a regular biannual program for students selected according to a merit criterion from the  state institutions teaching law, and the Sri Lanka Law Colllege in memory of late RKW Goonesekere.

The Program, called the RKW Memorial Program on Law and Justice will be inaugurated on July 29, and the inaugural oration for the program will be delivered by Prof M Sornarajah CJ Koh Professor of Law at the National University of Singapore. Professor Sornarajah is a distinguished former teacher and   and alumnus of the  Law Faculty who was also a former student and colleague of Mr RKW Goonesekere in the department of law of the University of Ceylon Peradeniya, prior to its relocation in the Colombo Campus of that University.

Professor Sornaraja has been a highly sought after counsel and arbitrator in international commercial arbitration and his later academic work and practice has been in public international law. He will speak on the application of international law in the courts of Sri Lanka and comparative litigation experience, also referring to some of the leading case in which Mr Goonesekere appeared as Counsel. The controversial Singarasa case that has received recent publicity was also argued by Mr Goonesekere as Senior Counsel with Ms Suriya Wickremesinghe of the Civil Rights Movement (CRM).

Original article is available at:

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=149136

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=149137