22 September, 2021


Breakdown Of Rule Of Law In Unfathomable Scale In MR’s 3rd Term Attempt

By Nagananda Kodituwakku

Nagananda Kodituwakku

Nagananda Kodituwakku

It is for the first time the readers are given an opportunity to learn this extra-ordinary moment of history during the run up to the Presidential Election 2015, and about the person who had fought a lone battle against all odds in order to safeguard the sovereign rights of the people.

President Rajapaksa’s dubious reference to the Supreme Court

The 18th amendment to the Constitution was initiated by President Mahinda Rajapaksa to remove the two-term restriction, enabling him to contest for a further term. However, the 18th amendment did not contain a retrospective provision, applying to a President already holding the second term in office. Based on this issue there was a serious and plausible argument that President Rajapaksa was not qualified to contest for a third term.

Suspicious reference to circumvent the disqualification

In this background President Rajapaksa was compelled to make a reference to the Supreme Court under the Article 129 of the Constitution, seeking its opinion on his qualifications for a third term. However, this reference was on a matter purely affecting President Rajapaksa in his ‘personal capacity’ and the Court, should not have allowed itself to become entangled in such affairs, compromising its dignity and integrity. In the absence of any ‘public importance’ attached to the two questions referred, the Court, being the guardian of the people’s judicial power, should have rejected the said reference.

However, the Supreme Court under the de facto CJ Mohan Pieris, accepted the reference and all judges agreeing expressed its opinion in a very servile language, empowering the President to contest for a third term.

Having had the said vital go-ahead, followed by the ‘divine advice’ given by his personal astrologer, Sumanadasa Abeygunawardena, President Rajapaksa went on to hold an early poll (two years ahead of the terms of office comes to an end) fixing 08th January 2015 for the Presidential Election. In the process the Commissioner of Elections accepted the nomination submitted by President Rajapaksa’s among others.

President’s eligibility challenged in Court

In this backdrop as a Public Interest litigation lawyer, I challenged President Rajapaksa’s nomination in the Court of Appeal by way of a Writ Application (CA/Writs/434/2014) on 16th December 2015. In this case the decision of the Election Commissioner, to accept President Mahinda Rajapaksa’s nominations was the focal issue. I sought a Writ of Certiorari to quash the Election Commissioner’s decision and also a Writ of Mandamus compelling the Election Commissioner to reject President Rajapaksa’s nomination. An interim relief was also sought to suspend the election until the final determination of the Writ Application.

In the Petition, I argued that the 18th Amendment to the Constitution did not apply to the sitting President. There was no expressed provision in it to apply it with retrospective effect, a mandatory requirement as set out in the Interpretation of Statute Law. It was further argued that the Constitution did not oblige the Court to give an opinion whenever a question was referred to it and the Court ought to say ‘No’ if the Court was asked to give an opinion on a question falling outside its jurisdiction. Yet, the de facto CJ Mohan Pieris virtually regarded that the Court was duty bound to give its opinion on the reference, whilst disregarding the pleas of citizens and civil rights movements, including the Bar Association of Sri Lanka, to make oral submissions.

I further pointed out that the Supreme Court had made a basic error in stating that its opinion given in advisory capacity, acting under Article 129 (1), carried the same weight given to a judgment pronounced by the Court. In the words of the Court, ‘it is our solemn duty to emphasize the fact that the effect of our opinion is no different to a judgment that we would pronounce in any one of our jurisdictions’. In this background it was argued that the opinion expressed with no hearing afforded is no ‘opinion’ at all, and it has no constitutional validity as the Court acted in breach of its constitutional duty to have a hearing on the reference before giving its opinion to the President.

Therefore, I argued that the opinion given by the Court was no different to a one given by the President’s personal legal advisers and it was invalid in law as the acceptance of the reference itself by a person (Mohan Pieris) appointed to the Office of the Chief Justice was unlawful, invariably making the decision taken on the reference ab initio void.

Breakdown of the Rule of Law at its peak and disappearance of the Writ Application

Then suddenly the Writ Application filed in Court was disappeared from the Court Registry. This was unthinkable in a Court System in any civilized country but it was not a surprise as the entire justice system was under the firm grip of the de facto Chief Justice, Mohan Pieris.

In the meantime the Court vacation was due on the 20th December 2014. Therefore, I was compelled to file a copy of the Petition along with a Motion dated 19th Dec 2014,  citing the ‘National Importance’ of the Writ Application and urged permission from the President of the Court of Appeal, Vijith Malalgoda J, (also arbitrarily appointed to the Court by President Rajapaksa) to support the Writ Application during the Court Vacation either on 19th, 24th or 26th of December 2014. This however, was not acceded by the Court.

Revelations of de facto CJ Mohan Pieris conduct lead to disappearance of the Petition?

In the said motion filed in Court (19-12-2014), citing overwhelming evidence the lawlessness in the then Judiciary under de facto CJ Mohan Pieris was exposed. It was specifically mentioned that the disappearance of the Original Petition was a deliberate act, presumably committed by an ‘interested person’ working in collusion with some individuals in the Court system to prevent the supporting of the Writ Application, that exposed the gross abuse of Office by the de facto Chief Justice. Accepting the office of the Chief Justice, knowing fully well that there was no vacancy existing, was unlawful. Therefore the Oath (undertaking to be faithful to the Constitution and the Law) taken by him before the Executive President was FALSE and was tantamount to an ACT OF PERJURY, invariably making all Judicial acts performed by him ab initio void.

Sudden and unexpected change of events

By the end of December 2014, with the tide was changing against President Rajapaksa, a letter dated 31st Dec 2014 initiated by the Attorney General Department was ‘HAND DELIVERED’ at my chambers, during the Court Vacation, informing the receipt papers relating to the Writ Application.

Hidden and surreptitious move awarding a hearing

In the meantime, the Court on its own motion had fixed a date (02-01-2015) to support the Writ Application, which was originally reported missing by the Registry. It was fixed before Vijith Malalgoda J, the President of the Court of Appeal and Navaz J (also a nominee of President Rajapaksa). This was barely a week before the Presidential Election.

I observed the hidden motive behind this sudden change of events and I perceived that it was a desperate attempt to issue notice on the Respondents and to grant interim relief prayed for in the Petition, thereby suspending the Presidential Election, effectively throwing a lifeline to the President Rajapakse.

In this background several representatives from the common Presidential Candidate Maithripala Sirisena’s camp approached me, urging the withdrawal of the Writ Application. They claimed that in the event the election is suspended, President Rajapaksa would use his mighty power to crush their campaign and therefore, unless the said Writ Application is withdrawn the Attorney General would surely consented to grant the interim relief prayed for and accordingly the Court would suspend the election.

Withdrawing the Writ Application with due respect to the Will of the people

In this backdrop, I had to take an important career decision as a lawyer. After realizing the significance of the request made by the common candidate’s camp, I decided not to proceed with the case and did not attend the Court on 02nd January 2015. Instead filed a Motion in Court on the early hours of 02nd January 2015, notifying his decision to withdraw the Writ Application.

In the said Motion it was stated that the Attorney General had informed me through a letter dated 31st Dec 2014, ‘hand-delivered’ on the same date about the receipt the papers served on the Attorney General, which is not the normal practice and this strange behavior had aroused my suspicions.

In this backdrop I informed the Court that, since the filing of the Writ Application the public opinion on the President Rajapakse had been apparently eroded, and therefore, the Attorney General would have been instructed by the President Rajapaksa to concede the Interim Relief prayed for and thereby to suspend the holding of the Presidential Election, effectively throwing the President Rajapakse a life-line to remain in Office, against the Will of the People. Hence, having perceived the Petition filed in the ‘National Interest’ could defeat the very purpose of filing the same, if proceeded with it, the Court was informed that I was withdrawing the Writ Application with due respect to the Will of the people, allowing them to determine the fate of President Rajapaksa.

Accordingly, when the case was called on 02nd January 2015, the motion filed in Court for the withdrawal of the Writ Application was allowed by the Court with the following pronouncement. ‘The Petitioner, Nagananda Kodituwakku, Attorney-at-law, has filed papers before this Court to support but he has now filed a motion dated 02-01-2015 informing his desire to withdraw the documents filed before this Court. The Application for withdrawal is allowed and accordingly this application is dismissed’

I had reliably learnt that de facto Chief Justice Mohan Pieris was furious about the role that I played in exposing the abuse of office by Mohan Pieris during his tenure as the Attorney General and as the de facto Chief Justice. And I also had reliable information that there was a surreptitious move initiated by him to remove my name from the role of lawyers immediately after the election of President Rajapaksa for a third term.

Crucial situation forced the lawyer to leave the country on the Election Day

In this backdrop after casting my vote at the Election Day (08th Jan 2015), in the early morning, I left Sri Lanka to my adopted country, the UK and it was quite certain that there wouldn’t have been a chance for me to return to Colombo had President Rajapaksa secured a victory.

Who imitated the dubious letter from the Attorney General’s Department?

It is important to mention here that I had also challenged the abnormal behavior of the Attorney General, in this case. I wrote to the AG on 12th February 2015, requesting a clarification about the hand delivered letter dated 31st December 2014 originated by the AG’s Department. However, up until today the AG has failed to respond to his request.

With all these credible evidence placed before the people, I leaves it to the people to form their own judgment about the total breakdown of the Rule of Law in this country under President Rajapaksa regime, with the concurrence of some Judges in the Superior Court System, who are however, permitted to hold office in terms of Section 54 of the 19th Amendment to the Constitution.

Therefore, being a Lawyer who had waged a lone battle against the lawlessness in the Superior Court System, I wish to pose a question to the people, whether they can keep their trust and confidence in certain Judges who had betrayed their judicial power they exercise on trust. And I pose a further question to people to imagine ‘what would have been the situation in this country’ had the President Rajapaksa secured a lifeline to remain in office for a further period, in the event the Court granting the interim relief, suspending the election until the final determination of the Writ Application, pending a full hearing.


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  • 2

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

    • 6

      Nagananda Kodituwakku

      RE: Breakdown Of Rule Of Law In Unfathomable Scale In MR’s 3rd Term Attempt

      “However, the 18th amendment did not contain a retrospective provision, applying to a President already holding the second term in office. Based on this issue there was a serious and plausible argument that President Rajapaksa was not qualified to contest for a third term.”

      “However, the Supreme Court under the de facto CJ Mohan Pieris, accepted the reference and all judges agreeing expressed its opinion in a very servile language, empowering the President to contest for a third term.”

      What else do you expect from a Liar, Crook, Robber, Criminal and Scum bag, called Medamulana Mahinda Rajapaksa and his cronies?

      On the other hand, look at the GOOD News. Manhinda Rajapaksa fell on hos own trap, and lost two additional years of Lying, Crook activities, Robberies and Criminal Activities.

      This was indeed a blessing in disguise for the people.

      The message should be sent, loud and clear, that:

      there is no room in the SLFP for a Liar, Crook, Robber, Criminal and Scum bag to be Prime Minster and their equally corrupt cronies to be Ministers.

      Dear President Maithripala Sirisena

      “President Maithripala Sirisena shot down the Prime Ministerial dreams of former President Mahinda Rajapaksa when he said that the Sri Lanka Freedom Party (SLFP) would not nominate a Prime Ministerial candidate before the next election.” 6.2 Million Sri Lankans did not vote for you to nominate the Liar, Crook, Robber, Criminal and Scum bag to be Prime Minister. Please tell the Liar, Crook, Robber, Criminal and Scum bag to form his own party, and ask the voters, the Modayas, Mootals and Fools who voted for Mahinda Rajapaksa, that if he is elected, he will become the Prime Minister. There is no room in the SLFP for a Liar, Crook, Robber, Criminal and Scum bag to be Prime Minster.

  • 7

    Happy to see you back on CT. You have done a great job so far. Take a break, have a Kit-Kat. Take care.

  • 12

    Nagananda Kodituwakku has exposed the “other side” of the judiciary, and, what the fate of the nation and the justice system would have been, had Mahinda Rajapakse been re-elected as President.

    I shudder to think what what would have happened.

    The Judicial Service Commission should lay down selection criteria for supreme court judges, and for limited terms of service, with “efficiency bars” after periods, like it is for public servants.

    • 8

      Judiciary is as rotten as Sri Lanka’s largest crime syndicate, which is Sri Lanka Police.

      May God bless this country and her citizens.

    • 0

      It is important to note that Sri Lanka’s Judiciary is full of unqualified, unpatriotic, money-minded, group of people who have no back bones at all. It is doubtful whether they are aware of their prime duty by the country. If you go for a symbol of their patriotism, count how many working hours each one of them has spent on their so-called ‘Benches’ during a period of one year. Then, how many cases they have finalized among them during a year. By working for 4 hours a day they will never fulfill their duty. They cannot justify their ‘Pay packet’. Unlike Pakistan judiciary, These people are scared of loosing their jobs. They always seem to be scared of death. That is why they treat politicians as demigods. If only Sri Lanka had a fine set of judges and an independent, fearless, Bar Association Politicians would never have touched the judiciary as their Lapdogs. What a shame indeed !!!

    • 0

      Where were Weliamuna and Upul Jayasuriya at the hour of need. When the battle lines were drawn at Hulftsdorp while the MR regime was tackling CJ43 ??. And where Upul j today?? is he protecting Sri Lanka’s judiciary??. Dear so-called fighting lawyers! ‘In the unavoidable discharge of your duty you should not lament about even loosing your life’. Just look at Pakistan. Those lawyers fought against a military rule and won!

    • 0

      Justice, Wise comment. I like to see some arrests and prosecution where judges have become corrupt. Judicial crime is more important that economic crime.

      Will someone post the link to the judgement delivered in the Tissanayagam case?

  • 1

    Mr Nagananda
    Iti over 100 ays wince what you feared as UNPsupporting lawyer did not happen and the ‘deoctratic leader’ of your choice assumed power as prime minister. It is a travesty of the truth and perversion of justice that you try to cover up the most autocrats, dictatorial and unlawful decrees your venerated’democrat has promulgated. You are well aware that Ranil had usurped the executive powers of the elected president:
    Appointing the governor of central bank, which is the prerogative of the president;
    2) appointment of a committee of inquiry into serious allegations of fraud by the governor of CB by the prime minister himself again approprating the constitutional power of president to himself, defending the actions of the governor in parliament by Ranil as prome minister in parliament before the inquiring committee even heard any evidence
    4)approprating unlawful powers as the head of a self appointed sub-committe of financial rminal investigations unit which by law should be stewarded by the IGP,
    5directing the minister of justice to appoint a close friend of his family as the bribary commissioner casting aside the due procedure .
    Finally, you have reposed unswerving faith in ranil as the guradian of democracy of this country apprently oblivious to the fact the he tore up the consttution of the UNP and remains as the leader of the then most democratic party in sri lanka..
    any impacial observer of politics in Sri Lanka does see that Ranil, the fox, is in chargerof the hen pen., making arbitrary arrests of politicians and govt servants at his will. The fox has somehow cunningly acquired guradiaship a of the hen pen. . We can see thateach and every day a bird is missing.It started with a direct thre`t the the media that unless they towed his line they would be imposed

  • 11

    Nagananda Kodituwakku

    RE:Breakdown Of Rule Of Law In Unfathomable Scale In MR’s 3rd Term Attempt

    “President Rajapaksa’s dubious reference to the Supreme Court”

    “The 18th amendment to the Constitution was initiated by President Mahinda Rajapaksa to remove the two-term restriction, enabling him to contest for a further term. However, the 18th amendment did not contain a retrospective provision, applying to a President already holding the second term in office. Based on this issue there was a serious and plausible argument that President Rajapaksa was not qualified to contest for a third term”

    Mahinda Rajapaksa, the Liar, the crook, the robber and criminal wants breakdown of Law and Order so that he is not accountable.

    “Therefore, being a Lawyer who had waged a lone battle against the lawlessness in the Superior Court System, I wish to pose a question to the people, whether they can keep their trust and confidence in certain Judges who had betrayed their judicial power they exercise on trust.”

    No they all are crooks, shills and robbers just like Mahinda Rajapaksa.

    Just Expose them All. Yes expose them

  • 11


    Phew, I am glad that you withdrew your application.

    Imagine what horrors would have befallen Sri Lankans if you gave MARA and his cohorts a lifeline to pull out from holding elections.

  • 5

    Respected Sir,

    In relation to the following “Therefore the Oath (undertaking to be faithful to the Constitution and the Law) taken by him before the Executive President was FALSE and was tantamount to an ACT OF PERJURY, invariably making all Judicial acts performed by him ab initio void” it appears that the current regime is acting on this basis in repealing (at high speed within days with at least one instance where judges hearing cases involving the clients who were represented by the current minister for justice have reversed their own orders to facilitate the interest of these clients and disadvantage the locus standii of their opponents ) the judgments and orders issued during the tenure of Chief Justice Mohan Peiris in a selective manner where the advantage of litigants friendly to the government can be secured.

    If this trend is not exposed and the damage done reversed then the credibility of the islands legal system will be seriously compromised and its suitability to house the proposed international arbitration center questioned and challenged.

    I suggest that as a public interest litigation lawyer, you examine this action and explore avenues by which manipulations of this sort that subvert the integrity of the legal process can be exposed and the integrity of the law protected and strengthened.

    I am not a learned person. However it is obvious even to myself that it is necessary to make a list of actions that can be taken in order to expose these manipulations and ensure that they are prevented and to initiate such actions without delay. I would like to know whether you are willing to do this.

  • 7

    Dear Nagananda,
    What a timely withdrawal of the writ by you on the request of MS & others who are real patriots like you.

    Sadly there are so called smart patriots who only blame and bash the minority communities for all the ills the country is facing. DJ , HLDM , TAMARA, MELINDA and other experts have been defending MR regime and openly canvassing for MR to contest the general elections and make him win with the support of the not so politically savy Southern voters.

    I sincerely hope the civil society, leanered individuals like Nagananda Kodituwakku & others appeal to the head clergies of all vihares , devalayas , temples, churches, mosques, on the urgency of the need to think about PIVITHURU HETAK and reject dishonest piliticians who are fooling the voters using racial and religious cards.

    My hats off to religious leaders like Ven Sobhita, Ven Ratna, Champika, MS, Rani, Sampanthan, Anura Kumara & others who got together, acted together and brought a change for the better on the 8th Jan, with full support of majority of the Sri Lanka voters regardless of their race or religion.

    Don’t allow MR regime to come back as he is using race and religion not for the countries interest but for his self interests

  • 1

    Mmmmmmmmmmm………… Nagananda Kodituwakku, that 03rd term ended sometime ago.
    Lets move on and assist this administration to continue in keeping with the Rule of Law. There is no point beating a dead Horse now.

    lets commence to beat the daylights out of the current and the living Horse before they take the same path.
    Already, there are many misnormers & jackalls have appeared engaged in a media circus.

    If you need to dig the past wonder from where we are going to commence?
    Lets look into a complaint that FCID has been politicised aND ABOUT THE BANK GROUND OF MAN LEADING INVESTIGATIONS. A cabinet sub committe apointed and gazetted in the absence of the PRESIDENT.

    As to what is happening in the current Government it appears the President will have to be present everywhere.

    Our society is politicised. So let leave these matters in the hands of Wijedasa rajapakshe.
    Much to be desired

  • 7


    Thank you for doing your duty by this country as a lawyer -citizen. I too held my breath wondering whether the SC will use your petition as the reason/excuse to postpone the presidential election. However, you acted wisely, understanding the possible game plan. Amidst a profession that is held in rather low esteem, you are indeed an exception.

    Dr.Rajasingham Narendran

  • 7

    Nagananda – We need more lawyers like you, who in spite of the dangers you confronted, acted in what you saw as in the best interests of the country. Well done!

    I’m interested to know if any action can be taken against Mohan Pieris for the various contraventions of the law he was responsible for as CJ. And speaking of the supine judges who acceded to his judgments in spite of flaws, what can be done to cleanse the judiciary of these impostors?

  • 6

    It is obvious that it would have been end of Democracy had Mahinda Rajapakse come back to power or the postponement of the elections.
    A faction of the members in Parliament want to bring him back for personal reasons. The do not care what happens to the country as long as they can fill their pockets.
    In the circumstances it becomes important and vital that the people are educated on these matters, that the majority will refrain from backing these unscrupulous opportunists being elected to parliament.

  • 7

    Every aspect of governance misused reach in its peak during election time. Thank God for saving country by making the change in the country’s leadership.

  • 5

    The electric-shock of 10,000 volts received by Mahinda is still reeling him, as
    evident from the desparate moves he keepss making. The AGs dept has yet to decide
    on the Coup Investigations by the CID. Sri Lankans must be thankful to MRs Astrologer
    and Mohans 10 Judges submission sending Mahinda to hang-himself in good time!

  • 0


    Mohan Peiris gross abuse of Ofice of the AG and CJ distroying the integrity of the respective offices will reappear in the Supreme Court in two weeks time.

    Supreme Court under Chief Justice Sripavan is reluctent to issue a Writ against the Corruption Commision without a reply from it, rejecting the complaint made against Mohan Peiris and to inquire into it. Accordingly notice have been served on the Commission to convey its stand and if no reply is received or it declined to inquire into the complaint, the matter will reappear before the Supreme Court for a Writ, compelling the Corruption Commission to inquire into the Seious Compalint made against Mohan Peiris for abuse of office to deny hundreds millions of tax revenue to the Government.

  • 3

    Mr. Kodithuwakku. You are a great man and hope you come back to this Island to fight for justice. I shudder to think what would have happened if the writ was taken up and the election was postponed. Anyway MR had guessed the trend,

    I am a layperson but please tell us what can be done to charge the courts for hiding the petition and its reappearance and hand delivery.

    I wish all these commissions would act soon to ensure GR,MR, NR and them are convicted and they do not contest election.
    What is happening to Wimal’s house deal.

  • 3

    Nagananda’s withdrawal may have been rather well timed, but it is sheer arrogance for him to think he waged a lone battle.
    Many others such as Sumanthiran, Weliamuna, Saliya Pieris, Viran Corea, Suren Fernando to name a few have consistently appeared against the excesses of the government, and against unlawful interferences with the judiciary… There was much support from the BASL to reestablish democracy under the unwavering learship of UJ as well.
    Similarly many campaigned heavily post 9 Jan to make sure that Mohan Pieris was sent packing.
    As for the other judges, whose appointment may be tainted by mala fides, Nagananda should file cases against them if he wishes. That or an impeachment apart they cannot be democratically removed, since the same argument which was used with regard to Mohan (no vacancy existed) cannot be used for them…
    Congratulations to all the brave warriors who have, and continue to stand for justice on a principled basis!

  • 1

    wise old owl

    I absolutely agree with your point and about those you have mentioned. I’m fully aware that they have done their ‘best’, and I wholly appreciate their contribution.

    But I am sure that people’s main concern is the wanting for some upright selfless personalities, who are dedicated to uphold the people’s judicial power that is being abused in this country.

    Read the written submission filed in the Supreme Court in support of my Petition [SC/SD/18/2015) against the 19th Amendment challenging the MS RW Govt’s decision to retain the Judges in the Superior Court System, with reasons explained. Once you read it, I’m sure that you and the rest will understand my case against the Judiciary, that I believe has failed to uphold the trust and confidence placed in it by the people of this country.


  • 0

    Excellent write up. Many of us were concerned when Nagananda Kodituwakku filed his writ application, and we knew that Rajapaksa will contemplate the annulment of the presidential election using this writ application as an excuse whilst also using his compliance to show the country how much he respects the independence of the judiciary.

    Rajapaksa is a man of lowly intellect. He is cruel and avaricious, self centered; a corrupt individual having no conscience, immoral and calculating. He should never have been even an MP. He was an extortionist who bled all business houses and individuals whether big or small,taking from them under threat of dire consequences. This type of individual is easily recognizable in society in organized crime mafia : even in schools one finds the bully and around him are a coterie of sycophants singing his praises. In parliament he was just a bully but no one including the few honourable men called his bluff. Some of them such as G.L.Peiris, Vasudeva, Dinesh,et al show the depths to which their character has sunk and still hang around the deposed racket boss. The talent Rajapaksa has is to bring out the worst in the people and that is what he did with the MPs.

    There is now no alternative but to investigate and prosecute to the fullest and put him behind bars.

    People like Nagananda Kodituwakku must assist in this.

    Despite all the brouhaha regarding a Rajapaksa comeback, my gut feel is that the majority of citizenry is ready for a sea change on moral conduct and will vote to clear the parliament of these blackguards.

  • 0

    What do we do about Sarath Silva, who started the rot in the judiciary? He has now publicly admitted that he gave a biased decision in the Hambantota tsunami case. Surely there must be a way to put him behind bars. Based on this admission, is there a possibility to reopen the Hambantota case?

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