21 November, 2018

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Choksy’s Opinion On The Process For The Impeachment Of The CJ Circulated By Basil Rajapaksa

By Colombo Telegraph

The following press statement of KN Choksy, PC on the mechanism and process for the impeachment of the Chief Justice is sent to media including the Colombo Telegraph by Basil Rajapaksa‘s press secretary Dharman Wickremaratne.

K. N. CHOKSY P.C. COMMENTS ON THE MECHANISM AND PROCESS FOR THE IMPEACHMENT OF THE CHIEF JUSTICE

Mr. Choksy expressed his Opinion that the Impeachment mechanism is the only accountability mechanism for the Higher Judiciary. In other words, so far as Judges of the Supreme Court and Court of Appeal are concerned it is the only method by which they are made answerable for their conduct in office.

Choksy

As far as the minor Judiciary is concerned, the Judicial Service Commission, which is headed by the Chief Justice, has its own accountability and disciplinary procedure.

When it comes to the President the Constitution provides an impeachment procedure by Parliament.

The President is also made responsible to Parliament for his actions. He also has to face the hustings and the people every six years.

Members of Parliament too can be expelled by the Political Party who have nominated them and lose their seats in the House.

When it comes to Public Servants, there is a mechanism where the Public Service Commission exercises disciplinary control.

Thus, there is an accountability process in every sphere of public service in its broad sense.

When one looks back on the impeachment of Superior Court Judges there is precedence. This is not the first occasion on which impeachment proceedings have been commenced against a Chief Justice. During the stewardship of President Jayawardene, in the case of Chief Justice Neville Samarakoon too, the process of impeachment was put into motion. A Select Committee of Parliament headed by Mr. Premadasa was appointed to look into certain preliminary questions. However, the matter came to a natural end before culmination as Chief Justice Samarakoon reached his age of retirement and thereby ceased to hold judicial office.

There is also international precedence for this procedure of impeachment by the legislature in other domains such as the United States of America and Australia.

Sri Lanka is a democratic nation and accordingly not the process and procedure is without its safe guards. There is a due process to be followed prior to impeachment. A Petition has to be presented to the Speaker with not less than 1/3rd of the total number of Members of the Parliament, signing the same. (In the present case, 117 Members have signed it, i.e. more than half).  Thereafter, once the Petition is presented to the Speaker, the Speaker has to appoint a Select Committee of Parliament, which comprises of Members of Parliament, both from the Government and the Opposition to inquire into and report to Parliament on the allegations contained in the Petition.

At the Select Committee which inquires into the matter, the Chief Justice has the right to be represented by Counsel, or by a representative or to appear in person. Thereafter, the findings of the Select Committee are tabled in the House, and Parliament debates the same. If the Report of the Select Committee is passed by a simple majority of Parliament, an Address is sent to the President by Parliament for the removal of the Judge, in this case the Chief Justice. The President acts on this Address of Parliament.

Therefore, Mr. Choksy noted that there is a balanced mechanism and Constitutional process where the Chief Justice has a right to be heard and the due process of the Law is followed. Parliament thus acts on the lines of a judicial body.

Mr. Choksy noted that it is not a kangaroo Court as there is a Constitutional process mechanism.

In order to ensure that justice and fair play prevails, Parliament refers the matter to a Select Committee of Parliament. This enables a finding to be come to in a rational and non partisan manner in fairness to the judge concerned and the Institution of the Courts.

Mr. Choksy further added that the Constitution mandates that the Chief Justice shall not be removed other than for “proved misbehaviour”, proved to the satisfaction of Parliament. Parliament scrutinises and debates the findings of the Select Committee.

The words “proved misbehaviour” are of a wide import. They bring within their sweep both misbehaviour in the exercise of their official duties, and also personal conduct; and this for a good reason, namely, that judges must be like “Caesura’s wife”) i.e. beyond any suspicion whatever.

Mr. Choksy noted that the impeachment proceedings of the Chief Justice are entirely in the hands of the Legislature. The Judiciary does not come into the scene at all in keeping with the rule that none shall be a Judge in his own cause.

Never the less, Parliament has to be satisfied that there is proved misbehaviour. Since the Courts do not come into the picture the proof has to be to the satisfaction of Parliament as a whole.

The appointment of a Supreme Court Judge is made by the President under the Constitution. But the President is not empowered to remove such a judge. For the purpose of protecting the institution of the higher Judiciary, a wider process is envisaged with Parliament being brought into the mechanism.

Normally, the appointing authority has the power to remove, but in the larger interest of the protection of the administration of justice, a wider body, namely, Parliament is involved. The President cannot remove a Supreme Court judge or in this case the Chief Justice except upon an address of Parliament.

Mr. K. N. Choksy President’s Counsel, who is an expert on Constitutional Law, had been the first Minister of Constitutional and State Affairs under President D. B. Wijetunge from 1992-1994 and thereafter Minister of Finance from 2002-2004 under President Kumaratunga during the Premiership of Ranil Wickramasinghe.

Mr. Choksy has also been a Member of Parliament for 21 years having joined Parliament in the first National List, when it was introduced under the stewardship of President Premadasa. Mr. Choksy was also appointed in the first batch of President’s counsels by President Jayawardene.

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    Very soon Choksy’s son will be appointed a President’s Counsel.

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      The distortion of all democratic Processes and checks and balances by a monstrous Executive President the uneducated Mahinda Rajapakse and his family of goons and criminals that is looting and corrupting political culture in Sri Lanka means that everything WORKS IN REVERSE. EVERYTHING IS RETROGRADE.
      The corrupt and uneducated president and his brothers are not accountable to parliament but rather a parliament of cronies and uneducated bootlickers is accountable to a president morphing rapidly into a military dictator.
      It is indeed absurd to act as if the legal proceedures and check and balances are in place when the whole political system is rotton to the core and undermined by the Executive president. Choksey is clearly in Cookoo land and want some sort of appointment from the corrupt regime when he says that the president is more accountable than lawyers and judges of the Superime court are.
      The hideous Presidential system of Sri Lanka that has no parallel in the world, needs to be abolished since it the the root of the corruption of the entire body politic and the institutional decay of bodies that should act as checks and balances on absolute power.
      Choksy needs a brain transplant! Another doddering old coot!

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        Dinuk:
        I have to take serious exception to your comparing Choksy with “doddering old coots.” THIS IS A MISCARRIAGE OF JUSTICE INSOFAR AS THE DODDERING, THE COOTS and any combination thereof is concerned.

        This man has given ample evidence of the fact that, like all MR supporters he only knows what’s best for him. In narrowly financial terms. Remember when, despite the fact that he was useful to the Opposition Benches as teats on a boar, he raised all kinds of cain for not being made an MP by the UNP leadership?

        This man has given ample evidence of his ability to look after his narrow, personal interests and this is yet another instance of that.

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      This bugger has already been apointed a PC – police constable. Disgusting. I wash my hands of this profession.

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      Re the first comment.

      He should have been appointed a President’s Counsel in the last batch.

      He is certainly President’s Counsel material and is a race horse compared to the monkies appointed.

      I knew his grandfather the late Mr. N. K. Choksy,first, King’s Counsel and then, Queen’s Counsel.

      They are very honourable people.

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      What is there wrong?

      He should have been appointed a long time ago!

      He is a racehorse compared to the 22 monkies appointed recently.

      He comes from a heritage of Silks. His grandfather was a King’s Counsel and then a Queen’s Counsel. His father was the youngest President’s Counsel appointed in the 1st batch of President’s Counsels appointed by President Jayawardena.

      I doubt the Ceylon Telegraph will carry this comment as I have put it twice before and they have not carried it. They are antigovt and biased and only carry comments that slander.

      Shame on you Editor Ceylon Telegraph !

      *Hello Susantha, don’t lie here, check your comment its there. – CT

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    President’s wings ahould be clipped so he is not above the law.

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      yes, who wll clip them??

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    “Those without power cannot defend freedom”- the citizen.
    In every country and every age, the priest had been hostile to Liberty.- Thomas Jefferson

    Select Committee of Parliament that would keep the minutes and forget the hours and it won’t have the final say with its findings because Parliament debates the findings/report and approves(pre decided by MR by the gun for the with the gun) the impeachment passed by a simple majority for the removal of the Chief Justice.

    Turncoat politician Choksy turned priest in old age; Father of human rights Cyrus the Great and impeccable Nani would be turning in their grave because you are now hibernating with (for 10%) tyrants – there cannot be development over dead bodies of Lankans via your kind tata and aban. The king of Gujarat who gave your kind fleeing Persia from the muslim onslaught “life” is watching.

    What goes round must come round.

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    Law students know this procedure

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      but Basil does not, and he thought he can teach all S.Lankans (including
      those in USA) the Democratic practices of his Brother via a Chosky!

      Who will be the Acting CJ next – to keep the whole Judiciary under
      Regime control for ever as planned – all within the constitution?

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    It is ok if the MPs act independently. But the current scenario is they will say yes even if it is to slash their their hroat or selling their mother or sister.That is where Choksy has erred big time

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    Bringing Choksy to the forefront to comment on an issue in order to endow some legitimacy is not very convincing. Considering his past involvements in Lanka Marine Services, Insurance Corporation and Yasodhara K cases he does not hold much credibility. Even in those scams the people responsible did not face any penalty and escaped scot free.

    The impeachment motion may be constitutional and legal but what is troubling is the motive behind this sudden concern about the judiciary in the backdrop of the Divineguma Act and the ruling of the SC based on the constitution. Media Minster Keheliya Rambukwella, addressing a news conference in Colombo, which was also attended by Minister Pavithra Wanniarachchi, Deputy Minister Lasantha Alagiyawanna and Parliamentarians Arundika Fernando, Shantha Bandara and Sudharshani Fernandopulle, accused the judiciary of infringing on the supremacy of parliament.

    Quite obviously he was alluding to the Divineguma bill. Then again the various spurious allegations of a sexual nature, the physical attack on the JSC secretary etc indicates the low level to which the Govt is stooping to achieve its goals. So Choksy can say what he wants but the motives and methods adopted by the Govt are not indicative of upholding the constitution, the sovereignity of the people, the sanctity of the Parliment and independence of the Judiciary in this country.

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    Remember how CBK mocked Choksy for the whole world to see and had to end up blind in one eye.

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      She lost one eye before the mocking took place. Get your facts right

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    One thing really sad about the people who comment on this page is that they themselves stoop to the lowest level to insult anyone when they do not like what the others say!. Now they insult Choksy because he simply spelled out the legal process, and the people don’t like it. So, the same people expect others to serve justice and fair play.

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      The Crow/Kaputa
      What is freedom of expression? Without the freedom to offend, it ceases to exist.

      How superficial you are in your knowledge. Nehru’s daughter Indira married Feroze Gandhi (Zoroastrian Parse), Ali Jinnah’s wife, Rattanbai Petit now were they able to stop the bloodshed as European nations have been able to do during the times of kings and queens? NO but they amassed wealth and developed fist policy eg. till 90’s no industry got state aid and was allowed except TATA and every young engineer with 98% at B. Tech aspired to work at TATA’s but alas they could never get a promotion because they did not have the exclusive blood of Zoroastrian Parse. India produces 16% of the world’s geniuses and many had to commit suicide. School dropout Aban is no different but worse in that she runs a sweat shop and only imports goods and arranged marriages. Very nice for 20 million Lankans to have 25 families that came in 1948 to teach a rice eating nation how to bake bread. Hitler loved them and called them the Aryans because they inter married. But now they pay with an unknown disease peeling of the skin (TWA syndrome) so India’s laws changed just recently allowing them to marry out but they die hard like Hitler. Why is it that the rupee is 130 and not 150 to the dollar? Just for school dropouts like Aban and Choksy to import and send it foreign exchange earned by poor house maids, garment works out. I know choksy charged 50k for a single consultation back in the early 80’s and Aban was slave driver no 1. We all love our homeland though we have enough and more to live away in some of the best places on earth.
      Who started black July 83 none other than a refugee Malabari Cyril Mathew?
      As if folk don’t know that SL has never had a revolution like the 2 republics of America and France to have a comprehensive constitution. Who is kidding whom?? India, Pakistan and Tel Aviv,(Zubin Metha (Zoroastrian Parse ) UK. Basil wants his Deva bill on the dead bodies of citizens where in the poorest or the poor end up like in Brazil- in the gutters dead or vanished.
      Freedom lies in being bold. May we be dammed if we have to achieve greatness through fraud?
      RSVP

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        Greatness through fraud? There’s an odd idea. Not much in keeping with the teachings of the sages of the past, but I assume you are one of the endangered geniuses you mention in your unusual diatribe.

        I could not help but notice your claim that India produces 16 percent of the geniuses in the world, and “many had to commit suicide”. According to my rough calculations, India has about 15 percent of the world’s people, as well. Not that startling, then, and hardly a reason to commit suicide.

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          What does a float sam with an IQ of around 70 know about the geniuses that India and China produce? SL has not produced any as yet with over 200.
          You are a quack like Dr White no wonder your pop Brian has no help- the prodigal son.
          Go take your pills.

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    Where is the justice in SL when the witnesses are kidnapped in front of Supreme court with police protection. Killers are evading justice saying they cannot remember, white van abductors are released from police custody with a VIP phone call. All these impeachment procedures are good for law, justice and human rights abiding countries. Not in SL with boot licker parliament, lame duck opposition, trench coat police, invalid justice system and corrupt thugs full of thieves bunch of frogs ruining SL every day they govern.

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    Justice should not only be done but appear to done is a hallowed saying.MR and his cohorts have still not been able to get the bill to neutralise the drug mafia which can help millions of poor people.However they have rushed with a Divineguma bill which from what is known to be in the hands of a man known as Mr 10 % will be in time known as as DIVI NESUNA BILL.Even a kid will know that the impeachment motion is the result of acting within the provisions of the law and not acting as that woman who danced before the Rajapakse Brothers at her daughters weddding giving an giving a judgement in their favour and incarcerating a war hero.The pictures that were floating all over the world provided enough testiimony and in WEEKS SHE WAS PROMOTED AND THE DISSENTING JUDGE RETIRED.WHAT ABSOLUTE POWER CAN DO ALL IN THE NAME OF PEOPLE.
    Before that he had another boot licker who was given a job as Legal adviser weeks after retirement as CJ.History will provide Shirani B will have a time honoured place in history if she stands tall as she is doing.The only mistake if at all she made was posing for a photograph with the SYNTHETIC LAWYER as S.L.GUNASEKERA CALLED HIM who sat the exam with a computer by him in an air conditioned room not with the rest.It is said that he has a law firm and that government work is siphoned there to further rob the country.
    The whole world is aware that UPFA Members in Parliament, mostly are substandard goons who will do anything the master wants and thats exactly what happened with APAVITHRA WHOSE name is well known in security circles. Its equally reprehensible to note how well educated men sell their souls for a PORTFOLIO.GAMINI LAKSHMAN PEIRIS has insulted his ancestry no end in paying pooja to a Library Clerk of yesteryear his brother a security officer within ten guards in the State Trading Corp,again political appointments to distort truth.Even entry to Law College was due to Mrs B asking the then Principal to take him.
    Many men of learning are of the view as they are helpless that nature will intervene soon and this blessed land will be saved of this curse very soon.The Maha Nayakes Cardinal Ranjith other Bishops and all other religious leaders who will not get killed by goons must step out and stop this high handed act to destroy the independence of the judiciary.Its not personalities that count,its the system that is sacred that must be preserved at a time when all else had collapsed.

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    Choksy WAS a respected lawyer not too long ago.Now he has brought disgrace to the judiciary by behaving like most politicians / ex politicians do today > Do anything to bum suck the ruling party. I guess his son who is a lawyer will benefit in some way or the other & NO questions will be raised as to how Choksy made such humongous deposits with Golden Key. Unfortunately he is too old to be in the Sri Lanka athletics team as a high / long jumper , but is a brilliant prospect for the veteran games as he just proven his capability of winning a GOLD medal for the country.
    He is a living example of a “Disgraceful Lawyer” and I am certain his father N.K. Choksy QC will be sumersaulting in his grave. People like him bring disgrace to mankind .

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      Just reminds me of Nani Palkhivala whom Choksy use to consult as he could quote chapter verse off the cuff “The survival of our democracy and the unity and integrity of the nation depend upon the realisation that constitutional morality is no less essential than constitutional legality. Dharma (righteousness; sense of public duty or virtue) lives in the hearts of public men; when it dies there, no Constitution, no law, no amendment, can save it.”
      He always refused high positions and fought for Liberty against Tyranny and won against the most powerful woman (see Hennery Kissinger on creation of Bangladesh) the world has known Indira.
      Minerva Mills Ltd. v. Union of India, [(1980) 3 SCC 625], Palkhivala successfully moved the bench to declare that clause (4) of Article 368 of the Constitution which excludes judicial review of constitutional amendments was unconstitutional.

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        Wu-Liang Guo whatever, you keep mentioning “Dr White”, and someone you call “pop Brian”, who you seem to think has some pills that may be of interest to me. Elsewhere, you have suggested that I spend more time talking to him…is it Brian Adams the pop singer you are talking about?

        And this “Dr White” you keep mentioning, is he your shrink?

        As for Indira Gandhi being the most powerful woman the world has ever known, according to Henry Kissinger…??!! You’d better make an appointment with Dr White with haste!

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          Your knowledge is limited to OZ land please keep to yourself. You are worse than a joke.
          I don’t want to reveal myself to you because you would feel jealous- poor man only 2nd generation professional running GP sad.

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          Senewiratne:
          For your information, “Dr” White is the witch doctor that your “optimum leader” or whatever, Mahinda Rajapaksa has foisted on the world, permitting him to practice “medicine” with the cover of Temple Trees. Are you aspiring to that guy’s laurels or do you have a different “career path” insofar as the Rajapasa hegemony in concerced?

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    In hindsight, from ’94 this country has been able to identify the people in their correct perspective. If the change did not occur these buggers still would have been serving under the UNP as paragons of virtue robbing this country. The defeat of the UNP in ’94 helped people to identify the corrupt in the UNP including this Choksy of their dishonesty. it is only the corrupt who decry the UNP leadership taking over, as they know they have no chance to continue switching sides conveniently. Hence they try to oust RW and replace with someone who will accomodate them once again.

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      You seem to be talking DAY LIGHT BANA as usual. No matter – ones who are waiting for a change – in a mess – but with agony and helpless, not seeing the move of UNP as they wish it to perform. Not guys like you but all others feel UNP leader seems not reacting. See, the latest calamity – impeachment of CJ. Is there any signs in the country- that there is a strong and powerful Opposition currently available to exchange. No. He is dead silent – asking also his partymen to stay mum. If not now, when RW will prove the nation, that he is still dynamic enough to any challenge. People of your ilk just leave this kind of 2 ct worth comment in order to just safegaurd the lost respect and dignity in current UNP.

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        Latha to quote you, ‘People of your ilk just leave this kind of 2 ct worth comment in order to just safegaurd the lost respect and dignity in current UNP’. You are absolutely right. I along with the others are trying to restore the lost respect and dignity in the UNP, which your ilk have destroyed. What happened to Sajith who thought that the majority was behind him and your ilk, thus challenged the leadership forwarding Karu as a contenderer, hiding behind him. Still you all are not satisfied after the defeat, as to who is accepted as the Leader. RW is not there for you all to dictate when and where to act. He will do so at the right time at the right place.

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    Chosky talk about the constitution that was prevailed during his time. Present constitution was converted to an one man show with the 18th amendment, and may be he is unaware of it. Now it is MR word that is ringing in parliament and the government MP’s(all are uneducated and unethical, balcony Jumping, smelling thugs) are mere signal posts. Basil Rajapakse (Mr 10 per cent) in desperation has soughted the solace of this old croc Chosky. He is under the cloud of the missing floor of Colombo Hilton. No wonder Chosky will speak more for the regime.

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    Choosy? Is he alive ? What karma have we done to have these fossils talking from the grave!

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    The relationship between the Executive and Judiciary always had an undercurrent of uneasiness and tension. Jennings could not have been totally unaware of this. But he assumed with learned persons on both sides the Status Quo will be maintained with dignity and decorum.
    It was. Not that we did not have issues between the two. But when they arose men of learning came to the fore and saved the day.

    His failure was that he did not imagine a day where our Legislature will be hijacked by drug-traffickers, crime lords, assassins-for-cash, casino-pimps, deranged men needing Medical certificates and so on. Many believe the Rajapakses had sufficient space and time to sort this matter between the feuding sides before it was dragged in the mud for the world to see. But apparently, there was no concensus between the 3 brothers. I am not talking of the 4th, whose thinking powers are far too legendary. It will be nice to see him dissecting the complexities of the law before him in his exalted chair.

    Senguttuvan

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      I know Franco the fascist so well. He was from the Canarias but a Galacia up north next to Basque country (Christopher Columbus). He hated them because of his inferiority complex. At present there is nil unemployment in Basque country while Spain is at all time high 25% (55% 16-24year olds). Franco wanted only pure Spanish blood and discipline doing away with the formal greeting where one kissed both cheeks of a woman. The day the prick died I was in Madrid watching the kissing and hugging- folk in tears like when the German wall was bought down.

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    Wulian – By 7/83 Cyril Mathew, whose forefathers were from depressed castes in Kerala (not necessarily from Malabar) were 3rd-4th generation Sinhalese from beyond the Kaluganga. Very likely Cinnamon peelers from the Ambalangoda area – who are still there going as Sinhalese. He tried to overdo the more extreme Sinhalese – as did KMP Rajaratne in the 1960s. The man was a Konar – a South Indian from the scheduled castes. He too was a rabid “Buddhist Sinhala” leader. In the lines of the Austrian Adolf Hitler and Keralite Mohamed Mahathir (Malaysia) Does the super-nationalist Champika R fall in this category – from the religious angle. Perhaps some readers who know this fraud patriot will comment.

    Senguttuvan

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      Senguttuvan: If you watch the BBC Spice Trail interactive video. The king had to get rid of the Portuguese because they wanted only a particular cast(salagama) to carry out the work. Who was the king the irony is he was a Tamil.

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    Mr. Choksey citing U.S. Congressional impeachment does not say how independent the U.S. Congressmen/Women and Senators are. Although most of them contest through a party ticket, once elected they act independently. U.S. political parties do not have control on Congressmen/Women or Senators. No towing of party line by elected officials in the U.S. They act according to their conscience or what the electors expect from them to do. On various issues electors (voters) send emails, faxes, tweets, etc to their representatives what stand he/she should take on a given issue. Please note that House members have to face elections every two years, and has to listen to the electors if one wants to get re-elected. That way Congressional committees are more independent and decisions are based on what is discussed and not what the party one belongs to wants. That is why it is called a vibrant democracy.
    There is no such tradition in Sri Lanka, so the majority gets away even with a wrong move/ decision.

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