Columns

British poet and laureate Alfred, Lord Tennyson’s mournful call that “the old order changeth yielding place to the new…‘ is an ageless reminder of the loss of once cherished values in these uncertain times.

Deprivation of voices of reason
The world now steps perilously into a future in which ancient demons of racial profiling, ultra-nationalism and rampant sexism are encouraged by a boastful and self-obsessed leader of the United States, whose penchant for pummeling state policy and abusing opponents (including the media) through the unruly medium of twitter has overstepped the bounds of propriety.
It is wondrous therefore that the first triumphant opposition rallies to the new US President were by women. Thronging major cities, they had apparently ‘disturbed’ his enjoyment of brazenly won power. This defiance can only intensify as civil rights, once taken for granted, are relentlessly rolled back.

Regardless, the deprivation of voices of reason precisely at these flashpoints of severe global crisis adds to this darkness. This week, the untimely passing away of Nigel Rodley, Professor of Law at the University of Essex, United Nations Special Rapporteur on Torture (1993-2001) and Chairperson of the UN Human Rights Committee (2013 to 2014) marked one of those critical moments.

Singular interest in Sri Lanka
Knighted for his services to international law, he rarely used honorary salutations, brushing them off with unceremonious and brusque haste. His contributions to shaping the contours of international human rights instruments were momentous, ranging from legal input into the drafting of the precedent setting UN Convention Against Torture (CAT), the Istanbul Protocol and the UN Standard Minimum Rules on the Treatment of Prisoners (the Nelson Mandela Rules).

However, lost among these accolades was his singular interest in this country. Early on, Sri Lankan advocates knew of Professor Rodley by reason of the fact that a progressive habeas corpus judgment of the Court of Appeal had relied on an academic text authored by him on the treatment of prisoners.

In that precedent (Leeda Violet Case, 1994), then President of the Court, Justice Sarath Silva rightly ruled that the Rule of Law would be completely nullified if a state officer can cause the disappearance of an individual and then blandly deny any knowledge of his or her whereabouts.

A caustic denunciation of Singarasa
This judicial citation became a matter of some hilarity fourteen years later when Professor Rodley felt sufficiently moved to write a scathing denunciation of the Singarasa Case (2006). This was also by Justice Sarath Silva, whose responses to rights protections as Chief Justice was in abrupt contrast to his record on the appellate court Bench. I remember Professor Rodley at the time expressing surprise that this was the very same Justice who had (earlier) blithely quoted international law rights protections to support the Court’s findings.

The Singarasa case concerned the conviction of a prisoner solely by reason of a confession under Sri Lanka’s Prevention of Terrorism Act (PTA). Following the Supreme Court affirming the conviction, Singarasa went before the UN Committee under the International Covenant on Civil and Political Rights (ICCPR) pleading that his confession had been compelled by torture.
The Committee was sympathetic to his plea and recommended that Sri Lanka amend the PTA so as not to put the burden of proof on detainees to establish that they had been tortured. A review application was then filed in the Supreme Court to reconsider Singarasa’s conviction. In response, the Court ruled that the act of Presidential accession to the ICCPR Protocol was a conferment of judicial power on the Committee and was therefore unconstitutional.

Vicious arguments depriving citizens of rights
In a lucid and critical assessment, (41(3) Israel Law Review 500-521, 2008), Professor Rodley caustically remarked that it was inconceivable that Sri Lanka’s Attorney General could have engaged in ‘Alice in Wonderland (or perhaps Alice Through the Looking Glass) reasoning’ to urge that even filing such a review amounted to “an interference with the independence of the judiciary’

Nonetheless (as he said), it was even more inconceivable that the Court itself would go on to state that judicial power is invoked by the UN Committee. He went on to explain that the Committee was unquestionably ‘not a court of law.’ No legal consequences flowed from its recommendations. The Court had therefore misread the international legal significance of accession to the Protocol. This merely allowed the Committee to make recommendations, similar to many such recommendations issued against states. No enforcement or binding powers came into play.

The Singarasa case ran moreover directly counter to impeccably reasoned judgments of Sri Lanka’s Supreme Court under the hand of Justices (the late) ARB Amerasinghe and (the late) MDH Fernando which had brought in reasoning of the UN Committee to benefit Sri Lankan citizens. Regardless, that powerful and vicious argument of using national sovereignty against rational legal arguments to the contrary prevails even now.

Remembering an astute mind
But Professor Nigel Rodley’s interest in Sri Lanka went further than an occasional article. He readily agreed to the invite by the Government to be one of several international legal experts to observe the sittings of the Udalagama Commission of Inquiry which was inquiring into, inter alia, the killings of students in Trincomalee and the executions of aid workers in Mutur in 2006.
Here again, he was one of the more astute minds to recognize very early on, the grave and systemic failings in the justice system in respect of all citizens. I recall him commenting with dismay on the profound inability of Sri Lanka’s legal minds to come to grips with the severity of the crisis and the silence of many to speak out at the time, despite their local and international credentials. In fact, one of the last conversations that I had with him some months ago included a suggestion that he write a ‘no holds barred’ reflection on his experiences at the time.

In a Preface that he later wrote to my book (Still Seeking Justice, International Commission of Jurists, 2010), he prophetically warned about the imperative need to understand ‘how a once respected legal and institutional system that upheld the Rule of Law has, over some three decades, been degraded into one characterized by pervasive impunity.’
This is a warning that holds true to us, even now as we despairingly struggle with those very same failures of justice.