10 August, 2020

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Defence Attaché Brigadier Priyanka Fernando Convicted – Full Text Of The Judgment

Former Sri Lankan Defence Attaché Brigadier Priyanka Fernando has been convicted for threatening Tamils under the section 4 A of Public Order Act by Westminster Magistrate Courts a short wihle ago.

Case No: 1801273043

IN THE WESTMINSTER MAGISTRATES’ COURT

Date: 6th December 2019

B e f o r e :

SENIOR DISTRICT JUDGE (CHIEF MAGISTRATE) EMMA ARBUTHNOT

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Majuran Sathananthan v Brigadier Andige Fernando

Is charged in the alternative with the following:

1. On 4th February 2018 outside the Sri Lankan High Commission 13 Hyde Park Gardens, with intent to cause those persons harassment, alarm or distress and without lawful excuse used threatening, abusive or insulting words or behaviour or displayed a sign of other visible representation which was threatening abusive or insulting, thereby causing Mr Priyantha Perera, Mr Gokulakrishnan Narayanasamy and Mr Majuran Sathananthan harassment, alarm or distress contrary to Section 4A (1) and (5) of the Public Order Act 1986

2. On 4th February 2018 outside the Sri Lankan High Commission 13 Hyde Park Gardens, London W2 2LU used threatening or abusive words or behaviour or disorderly contrary to section 5 (1) an (6) of the Public Order Act 1986

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

Majuran Sathananthan was represented by Peter Carter QC leading Shanthi Sivakumaran instructed by Public Interest Law Centre Brigadier Andige Fernando was represented by Nicholas Wayne

– – – – – – – – – – – – – – – – – – – – –

Judgment Summary

1. This case has had a protracted history which is set out in two earlier judgments attached. The trial took place on 18th October 2019 and 19th November 2019 when the defendant did not appear but was represented.

2. On 4th February 2018 there was a demonstration by Tamil sympathisers who were protesting on Sri Lanka’s National Day outside the High Commission near Hyde Park. It was a peaceful demonstration but involved flag waving and chanting. There were about five or six police there initially and about 50 or 60 protesters. At one point the police moved the protesters as they were blocking the road. The police did not need to make any arrests at any point.

3. During this demonstration, Brigadier Fernando, in uniform, was outside the High Commission when he made three cut-throat gestures by drawing his fingers across his throat. This action is clearly shown on the video and still photographs which have been exhibited.

4. I received a number of detailed submissions on various matters of law from Peter Carter QC and Nicholas Wayne and I was very grateful for their assistance.

Evidence

5. I heard evidence from a number of witnesses who saw the gesture. Mr Sabeshraj Sathiyamoorthy took the video. He said when he saw the gestures he felt angry but then went on to another demonstration this time at Downing Street before making a complaint at Wembley police station at 11.30pm the same day. He said he had not made an immediate complaint to the police because his English was not very good and it did not occur to him. It was only in cross-examination that he said he was very frightened by what he saw. A friend of his who saw the video suggested he should go to the police for his protection.

6. Mr Gokulakrishnan Narayanasamy was the organizer of the protest. There were two groups protesting in favour of independence for Tamil Elam which he described as their homeland. He was holding a placard and was about 14 feet away from the defendant at the time. Mr Narayanasamy thought the Brigadier was focusing on him when he made the gestures I have described above. He said he had suffered mental health problems after the incident and was very frightened by what he saw. It must be said I found this part of his evidence to be exaggerated. The police were present and he made no complaint at the time although I accept that it may well have affected his previous depression and anxiety. It was only after Mr Narayanasamy spoke to his solicitors that he went to the police.

7. Mr Majuran Sathananthan was also attending the protest that day. He is the private prosecutor of this case. He said that the Brigadier was observing them for a long time. He took photographs of the protest. One of the exhibits shows the Brigadier taking a selfie with the protestors in the background. When the defendant made the gestures, Mr Sathananthan thought they were focused on him. The effect on Mr Sathananthan was that he thought the Brigadier was conveying to him that he would kill him by cutting his throat. He was frightened. He was worried too that his family in Sri Lanka may be harmed. He went to Wembley police station the following day.

8. Despite the complaints to the police they did not arrest the defendant. During Mr Sathananthan’s evidence it became clear that he had launched the prosecution against the defendant within a couple of days of the incident and many months before the police had decided not to prosecute.

9. The final witness was Mr Pryanthan Perera. He saw the gesture. He did not know the officer but knew that he was an army officer and found out his name later. He noticed the Brigadier and another man in a white shirt taking photographs. Mr Perera said that he still felt frightened when remembering the incident because the Brigadier took his photograph and he believed he could be killed by him. He believed the Brigadier could do anything because he has spies here. He said he was so upset he went straight home. Later when he saw the incident on social media, he felt terrified.

10. The next day he made a complaint at Chingford police station. He said when he went to the police he knew that a private prosecution had started and he could not remember if he told the police that. He got involved in the private prosecution to protect himself. Six months later he heard the police were not proceeding with the prosecution.

11. What he found upsetting was that the Brigadier had made the gestures to show that he had the power to do anything to him. Social media could be seen by anybody around the world, not just Tamils.

12. The Defendant did not appear but was represented. Mr Wayne called Sir Peter Heap, a retired Ambassador including three years in Colombo. He attended the High Commission for the National Day reception. He noticed that there was a demonstration going on and he saw 50-60 protestors. He described it as very active, with lots of noise and chanting which supported various Tamil Elam groups. He said it was a hostile event and the protestors were using loud hailers and trying to disrupt the reception.

13. Sir Peter said he did not know the Brigadier well but had met him that day. He was performing the role of defence attaché, introducing people, particularly military people and escorting them in and out of the reception. He said a defence attaché was a recognized diplomatic role. Primarily the attaché is there to report to their own government on military matters and to liaise with the armed forces and have a view on military matters. This was as part of a diplomatic team which would all work together at functions.

14. He did not witness the cut-throat gestures made by the Brigadier. In crossexamination he was asked why he was at court to give evidence and he said he was not entirely sure. He agreed that it was routine that diplomats are told to obey the rules of the country they are in. He agreed that threatening members of the community is not part of the role of a diplomat.

15. Sir Peter had said that on 4th February 2018 he had recognised flags of the LTTE which was a proscribed organisation in this country. In cross-examination he had to admit that the flags he had identified were not LTTE but other ones of a slightly different colour. Submissions

16. In argument Mr Carter for the prosecution contended there was no legitimate reason for the Brigadier’s actions and they were not part of his official duties at the time. On the 1st March 2019 I had ruled on the diplomatic immunity point and that ruling should not be revisited.

17. The defence were contending that there was no valid summons before the court because the prosecution was commenced when he was still a diplomat . Mr Carter relied on Reyes v Al-Malki & Anor [2017] UKSC 61 (18 October 2017) and said that case made it clear that diplomatic immunity did not apply in this case as the gestures were not part of his official functions.

18. Mr Carter said that any potential unfairness amounting to an abuse of process had been taken care of by the proceedings. The witnesses had been challenged and all the issues had been explored. There had been no failings in disclosure.

19. Mr Wayne, for the Brigadier, argued that no valid summons before the court. There had been no jurisdiction for the court to grant the summons when the defendant was still a diplomat. The private prosecutor had been in breach of the duty of candour by failing to tell the court that the defendant was a Brigadier and a military attaché protected by diplomatic immunity. The prosecutor should have told the court that the matter was being investigated by the police at the time the information was laid. He failed to do that. The court had been misled deliberately and in those circumstances the summons was defective ab initio.

20. The information had not disclosed the fact that the Brigadier was protected by diplomatic immunity and the reissue of the summons on 9th August 2019 was invalid.

21. Mr Wayne set out the difference between a private prosecution and how the offence would have been investigated. There were a number of officers present at the protest. They could have been asked whether they had seen the gesture and whether harassment or distress was caused at the time. The fact that it was a private prosecution should not put the brigadier in a worse position than he would have been in had it been otherwise.

22. Mr Wayne invited the court to look at the elements of the section 4A offence. He accepted he could not argue the gestures were not capable of being threatening behaviour but he pointed out that alarm or distress were strong words and must not be trivialized. The distress must be an emotional disturbance. Harassment could be not grave but not trivial either.

23. As to the intention of the Brigadier, the court had not heard from him but should consider whether the gesture could be an impulsive act without that intent. Mr Wayne relied on Sir Peter Heap calling the demonstration hostile. He suggested that the Brigadier was angered by others with different views and this was a regrettable action but not necessarily intended to cause alarm or distress.

24. The next question was whether the witnesses really suffered harassment, alarm or distress or whether this was situation of confected outrage. There were many people filming on that date not just the Brigadier. The witnesses would have known it was a gesture made in the heat of the moment. He asked the court to consider whether alarm etc was really caused or whether the Tamil groups protesting saw an opportunity to advance a cause.

25. Mr Wayne pointed out that three of the complainants did not make an immediate complaint, they went on to Downing Street and cannot have been distressed. The cameraman, Mr Sathiyamoorthy, may have been influenced by others. The court should consider whether there was a degree of organization and coordination. If there was, could the court exclude the possibility that what took place was not genuine but confected outrage for political purposes. An indication of that was going straight for a private prosecution rather than waiting for a police investigation.

26. In terms of the reasonableness of what the Brigadier did, if it was an impulsive act in a stressful situation Mr Wayne asked to court whether it deserved a criminal conviction. Ruling

27. I have previously ruled that the defendant is not protected by diplomatic immunity. I see no reason to re-visit that ruling. I find that a valid information was laid on 6th February 2018 and valid summonses were issued by this court on 22nd February and 9th August 2018. The information was laid within the period of six months.

28. I accept there is no evidence that the court was informed that the defendant was protected by diplomatic immunity at the time the summons was issued but in any event I do not find that the defendant’s status would have prevented the summons being issued. I have already found that before the summons was issued the court would have considered all it was required to.

29. I do not find there is an abuse of process in this case. The defence have crossexamined witnesses and have called evidence. The basic acts which underlie this prosecution have not been challenged. I cannot see that police disclosure would have assisted the defence or undermined the prosecution case. In any event such information is not in the hands of the prosecutor. I can see no unfairness to the defendant in the conduct of this case. The burden of establishing an abuse is on the Brigadier on the balance of probabilities and he has failed to discharge that burden.

30. The right to bring a private prosecution is not curtailed even when a defendant has accepted a caution (R (Lowden) v Gateshead Magistrates’ Court [2017] 4 WLR 43). I can see no reason why an information cannot be laid by a private prosecutor whilst waiting for a police investigation to conclude. I dismiss the defence application for a stay of the proceedings.

Findings

31. I have no doubt that the cut-throat gestures were made on 4th February 2018. It is accepted that Brigadier Andige Fernando is the man in uniform shown in the video and stills making the gestures.

32. The next issue is whether he intended the gestures to cause the named complainants harassment, alarm or distress. I have no doubt he intended to cause at the least alarm. They were purposeful gestures, made as the Brigadier was staring at these protesters. The Brigadier was a senior officer in uniform wearing medals. Unlike the other senior officer there, his body language appeared to be arrogant and intimidating. There were three gestures and not just one. In the context of the relationship between Sri Lanka and Tamil Elam protesters he must have known that it would have been alarming at the very least to the protesters who saw him do this.

33. The next issue for the court is whether I can be sure the complainants were caused harassment, alarm or distress. I have no doubt that alarm was caused to all three and that Mr Perera was distressed by what he saw.

34. I find the defendant guilty of the section 4A charge.

35. The section 5 is an alternative. I adjourn it sine die. Senior District Judge (Chief Magistrate) Emma Arbuthnot

6th December 2019 6

 

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Latest comments

  • 13
    3

    “throat cutting” gestures are much milder than what “grease yakkas” did .

    http://hrcsl.lk/english/2011/09/29/media-communique-issued-by-the-human-rights-commission-of-sri-lanka/

    Of course no one was found fault with, as the ‘yakkas’ were of military origin.

    • 7
      1

      To my eyes, this PRIYANKA fernando is no right to have behaved so. I have been livingn in Europe for the last 3 decades and I travel a lot across the europe for my job. There If I would not respect the law of each country, I have to face it. Be it a srilanken force officer or a medical doctor would have to go through the legal procedures of each country. Last week, I happened to just move out of the line for a minute or 2 even if I was supposed to be the next to go to the GERMAN RAIL counter, but officer at the couner let the one behind me, since he thought i was not present. Then a minute later I went to counter and question, as to why he did so, and I found it unfair. THere there answer was, if the number called appeared to be not present, then he gave the chance to the next. and even if before me, he tried to give the chance to the next behind me… that is the system, that they europeans are upto in their day today routine life. I found it not fair because we the ones grew up in SL feel, not just the method but the belly feeling should work. To their learnt nature, that is though unlawful.
      See, in this incident, I was alone and I had to respect their law. ‘
      Next time, while being in the queue, I should be careful not to miss the line and even for a minute if i really want to collect information at the RAIL counter. These are not new to me, but I just added it, that people in Europe are law bound and system bound people. Unlike our buffaloes, even wearing tie coats the way they drive in Colombo is the best example to show the nature them.

      • 5
        2

        Excellent judgement which Sri Lanka kangaroo courts should take as an example and Sri Lanka banana republic to incorporate it into their jungle laws.

        • 0
          0

          Damn your self.

      • 1
        2

        hey you idiot I have been living abroad d for 25 years, Japan, 1980- 1986 , CANADA,1986 FOR ONE YEAR , AUSTRALIA ,1988, for one year Egypt,1990- 1994- Austria, 1995 -1997 CUBA, 1997- 1999 and from 2000- 2005, BRAZIL AND HAVE VISITED UK. ITALY, CROATIA,HONG Kong, CHECK REPUBLIC,. You may not be the only person who had travelled around many countries. and do not try to be holier than POPE in your comments. IDIOT remember in 1817 the BRITISH fooled SINHALA CHIEFTAINS to sign the bogus Kandyan Agreement at which Ven. sir Kudaapola thero protested british soldiers stepping on the Kandyan Flag and pulled down the British flag for which ven thero was awarded death sentence it is natural for any patriot to be offended when the pride of the country it’s national flag is disrespected and stepped upon Brigadier reacted as a SriLankan soldier and his sign language indication meant tha tarmy had severed the head of LTTE AND WE DONOT CARE YOUR DEMONSTRATION. IF LTTE sympathisers are hurtbest thing is to look for a cyanide capsule can bite and go to hell.

        • 2
          1

          Errr. bhumiputhra bandaara,
          sounds like you are a stateless person from the list of countries you claim you have lived in.
          Presumably, you must have been thrown out of every one of those countries!!
          Why don’t you just stick to Sri Lanka and call yourself the son of the soil in that lawless country? – while you are there crawl back under the rock you emerged from and stay there.

          We don’t need you and your kind around decent, civilized, law-abiding citizenry.

        • 1
          0

          Now we are living in a Global Village,not in a well.Your history mania never protects our future. Don’t try to boasting

  • 3
    13

    Where did this happen, in a TV programme ? in which they pay appeared some fee for appearing.

    • 11
      1

      It is nice to live in a country where the judges are not corrupt and erudite.

  • 9
    25

    I heard some one from England had informed the Sri Lankan govt saying, something like this will happen, probably to make DUMB TAMILS happy, and the block vote will go to one side.

    • 9
      2

      Isn’t “Sinhalayo modayo” the usual refrain?

    • 9
      4

      Jackass of a Donkey (JD) I know you are always hearing something. These topics are a bit too much for you to understand, please go and read a comic book or something with lots of pictures, or maybe stare at the pictures.

  • 4
    6

    “On 4th February 2018 there was a demonstration by Tamil sympathisers who were protesting on Sri Lanka’s National Day outside the High Commission near Hyde Park. It was a peaceful demonstration but involved flag waving and chanting.”

    What flag were they waving? Was it not the Tiger flag, the flag of a terrorist organisation banned by the EU? According to the EU Terrorism Act of 2006, these people are guilty of glorifying terrorism: “Makes it a criminal offence to encourage terrorism by directly or indirectly inciting or encouraging others to commit acts of terrorism. This includes an offence of “glorification” of terror – people who “praise or celebrate” terrorism in a way that may encourage others to commit a terrorist act. The maximum penalty is seven years’ imprisonment.” Clearly, waving Tiger flags is equivalent to glorifying terrorism.
    On the other hand, the “throat gesture” is subject to personal interpretation. There is no way to clearly establish the Brigadier’s intention when using this gesture. At any moment, there are likely thousands of people all over the world making a similar gesture with their throat. Most importantly, the Brigadier is situated in the UK, where his past actions in the SLA have no consequence.

    • 5
      3

      Lester you fool, waving LTTE flags by the protesters does not in anyway diminish the harshness of the Brigadier’s cut throat action.

      • 5
        5

        These LTTE supporters condoned mass suicide bombings, how can they be “traumatized” by a hand gesture? In its early days, LTTE used machetes to cut the throats of Sinhalese villagers, e.g. Kent and Dollar Farm massacres in 1984. The judge obviously did not take into account the historical context.

        • 1
          1

          Lester you fool,

          Appe Aanduwa cannot do anything to Tamils, which LTTE did to Aanduwa.

          But what LTTE did in Dollar and Kent farms were returning what Aanuwa did to Tamils.

          If you can understand, read the Wikipedia article.

          https://en.wikipedia.org/wiki/Kent_and_Dollar_Farm_massacres

          Kent – Dollar farm action stopped Junius Richard’s Annual celebrations of Pogrom and murdering 4,000-5,000 Tamils in each occasion.

  • 3
    2

    Appe Aanduwa sent five officials to rent a diplomats’ office in London Town on tax payers money, parade one behind other on the that office staircase and show cutthroaters’ gestures as diplomatic activities? Sounds like a kind of Lankawe diplomats’ exhibitionism, free show paid by Appe Aanduwa on the day of their leash broken anniversary, isn’t it? Didn’t it strike in one of the other four comedian’s head to push this goon down on the steps &, step on his buttock to bring back him to consciousness to where he was and what he was doing? Let the New King to add the court cost to the $400B they spent to enslave the Tamils. Out of the $400B they should have paid for Kathirgamar $36B (double of Old King’s $18B), for the kind of the quality services rendered to Lankawe, comparing the clownish things these guys are doing.

  • 5
    2

    This was action unbecoming of an officer in peacetime anywhere, under any circumstances. There is nothing in the brief of a Defence Attaché that requires or entitles him to make any sort of intimidating gestures. In short, it was silly, inexcusable behaviour. He now has to face the consequences. Sadly, he did not have the courage to turn up in court, and face the charges, and defend himself like a man. What a let down.

  • 5
    12

    A verdict to please mad dogs, looters, terrorists, drug pedlars, layabouts. A mighty alliance of yesterday’s colonial parasites and today’s mad dogs have won the day but lost the war.

    • 2
      0

      lal Loo

      It is you again.

      “A mighty alliance of yesterday’s colonial parasites and today’s mad dogs have won the day but lost the war.”

      You got it all wrong.
      Mad dog has won the elections and Fascism has won the the day.
      Lets see who is going to eventually lose the country, dignity, ….. ?

      Itis good to have someone who is willing to shadow box all the time as he/she finds him/herself nothing better to do in real life, therefore needs to also rage with colonial anger.

      Keep up your good work, the entire country feel secured and assured.

  • 6
    4

    This is just about ‘causing harassment, alarm, and distress’.
    What will this judge say about Pirabhakaran’s and his LTTE’s 30 year long atrocities, killings, murders, rapes, kidnappings, money laundering, and all kinds of criminal acts that turned the Sri Lankan Tamils to orphans in their own country.
    Any comments?

  • 4
    8

    I feel sorry for British people. British politicians saw foreighn terrorists and they reap local terrorist attacks. Terrorists are breeding like rabbits in UK
    Near sighted and greed for Tamil votes.
    Will they let Al Quida or Taleban make demonstrations infront of British Parliment.
    Where were they when LTTE blasted thousand bombs and killed innocents.
    Hight of hypocrisy.

    • 4
      1

      Ha Ha how about the mass killings, extra judicial executions, abductions,enforced disappearance, killing of innocent school children en mass, rape and murders not forgetting the acts of war crimes, genocide and crimes against humanity committed by Srilankan armed forces during and in the aftermath of the war which will make even Hitler’s atrocities pale into insignificance.

    • 5
      1

      Where were you when army and army assisted thugs eaoed murdered thousands of Tamils in 1956,1958,1977,1981,1983 and throught the war period

  • 9
    1

    Golden rule we were thought in school.
    The meaning of diplomatic: is someone who can be sensitive in dealing with others and who can achieve peaceful resolutions or facilitate discussion. What has brought to the country in front of the world .Treat other people with the concern and Thoughtfulness/kindness you would like them to show toward you. This saying has come to be called the Golden Rule. And don’t thorough stones when you are in a glass house

  • 1
    5

    Appears the judge accepts everything the complainants say without batting an eyelid. Looks too much of a personal one sided view taken by the judge. May be an appeal is in order.

  • 7
    2

    The behavior of the staff of the hC reflects the culture of the country thaey represents. One drop of poson in as glass of milk is enough to kill the reputation of the country. This verdict is also in the part of Sri Lanka which always thinks and acts ethically. Unless this attitude changes the country will not prosper

  • 0
    1

    Uncommon man’s comments are very apt. This poor little but tall PRIYANKA fernando represents a country that has committed all the atrocities from 1956 to 2019 against the Tamils who were the true natives of Sri Lanka.

    Had this happened in any country that follows the Rue of Law, this man Priyanka would have been court marshaled and deprived of his rank. BUT NOT IN SRI LANKA! where he will be rewarded with promotion. This island of blood will never learn or change.

  • 1
    0

    One cannot be reassured that “British justice” has been done in this instance. While not condoning the act of intimidation from a serving army officer as a diplomat, the matter has assumed a high profile due in large part to the political significance that migrant Tamils in the UK (for example) present, especially in times when their support is necessary in the UK electoral process. Unlike their Sinhala counterparts, the Tamil community feel deeply about the separatist war in Sri Lanka and its aftermath, and hence continue to lobby political processes in developed countries like the UK, Australia and Canada. In theatres where British forces have in recent times been partners in genocidal war foisted on innocent civilians of Iraq, Libya, Afghanistan etc where their cousins in the US have been the main perpetrators of crimes against humanity, decimating these countries and causing death to millions of innocent civilians, this matter against a poor country’s civil war is now largely political. David Milliband (for example) arrived post-haste in SL to stop the war and talk peace, a ridiculously bald attempt at interference with local politics at home in mind. Therefore, one needs to take these deliberations from Arbuthnot giving due consideration to Britain’s role in Asia.

    • 2
      0

      “Unlike their Sinhala counterparts, the Tamil community feel deeply about the separatist war in Sri Lanka and its aftermath, and hence continue to lobby political processes in developed countries like the UK, Australia and Canada. “

      If these diaspora Tamils create a bad image of Sri Lanka abroad, it will not be good for Tamils in Sri Lanka. These stupid diaspora Tamils need to think twice before they act. They are the ones who financed the war in the first place – a war which they could never win. A war that was won by the SLA in just 5 years with the right President. These diaspora Tamils sent their children to elite schools in the West, while Tamil children in Sri Lanka were conscripted, given a gun & cyanide capsule, and asked to fight grown men.

      • 0
        0

        Only thing stupid , evil, vicious and racist is you. A Chingkalla Buddhits Fascist Nazi . Having a nice time in the west and encouraging fascist racism back home.

      • 0
        0

        Damn true Lester.

      • 1
        0

        Lester the jester and Sampaya

        “If these diaspora Tamils create a bad image of Sri Lanka abroad, it will not be good for Tamils in Sri Lanka. “

        You do not need diaspora Tamils to create a bad image of Sri Lanka abroad, the Sinhala/Buddhists are capable of doing it splendidly well, at least since 1956. If you need some support from them please feel free to ask them.

    • 0
      0

      This still does not excuse the marginalisation , genocide and war crimes committed on the island’s Thamizh , at the hands of all Chingkalla governments from the time of independence , especially from 2005-2015. Stating Britain did this , USA did this so it is fine for us also to do is no excuse . At least they did not do this to their own citizens . You are supposed to be an educated person but like most Chingkallams , racist to the core . Racism and anti Thamizh hatred blinds your rational thinking

  • 0
    0

    Is LTTE banned in the UK? , please clarify someone.

    • 0
      0

      Sampaya


      “Is LTTE banned in the UK? , please clarify someone.”

      LTTE is banned in at least 30 countries.
      By the way you must be a lazy good for nothing fellow.

  • 1
    0

    Sampaya


    “Is LTTE banned in the UK? , please clarify someone.”

    LTTE is banned in at least 30 countries.
    By the way you must be a lazy good for nothing fellow.

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