23 October, 2021

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Fast Descent Into A Constitutional Dictatorship?

By Eran Wickramaratne

Eran Wickramaratne MP

Sri Lanka is fast descending into a Constitutional Dictatorship.  In a kingdom the powers of the Executive, the Legislature and the Judiciary were exercised by the king.  The king was sovereign.  In a democracy the people are sovereign and their sovereignty is given expression through the executive, legislative and the judicial branches of Government.  The healthiest democracy is where the different arms of government are independent of one another, and they exercise their powers in a manner that does not impinge on the other. A system of checks and balances should also be in place, so that one organ of power could arbitrate conflicts between the other two organs. If there was to be a conflict between the Executive and the Judiciary, the Legislature would be the arbitrator.

We are now facing a situation where Members of Parliament have brought an impeachment motion against the Chief Justice, and where they have to decide on the removal of the Chief Justice. In the United States of America there is a clear separation of powers between the Legislators on Capitol Hill and the President and his Cabinet.  The President picks his Cabinet from outside the House of Representatives and the Senate.  If a member of any of the Houses is picked to be in the Cabinet, like was the case with Senator Hilary Clinton, she resigned her legislative position to become a part of the Executive maintaining strict separation between the Executive and the Legislature.  In Sri Lanka the Cabinet of Ministers is picked from elected members of Parliament diluting the separation between the Executive and the Legislature.  The dilution was limited to the Cabinet of Ministers who share in executive power.   The administration of President Rajapaksa has reduced the independence of the Legislature drastically by appointing multiple scores as Senior Ministers, Ministers, Deputy Ministers and Monitoring Ministers. The independence of the Legislature from the Executive has irretrievably suffered by turning most legislators into mini-executives.  Government MP s have little choice but to bow down to the whims and fancies of the President when the structure of government has been altered in this manner.

It is in this situation that the Chief Justice will be subject to a hearing by the Parliamentary Select Committee and a subsequent vote by the Members of Parliament.  One has to assume that the Bench in a trial is unbiased and has no material interest in the case at hand. It must be pointed out that some of the MPs who have signed the Resolution have cases pending against them in the Supreme Court, and crossed over to the government from the Opposition benches.  In a jury system of trial a Juror picked to hear the case will be vetted for independence.  If the Juror is discovered to have any material interests or conflict on his selection he would step down as a Juror.

The critical issue in the dispensation of justice is to ensure that justice is done, and justice is seen to be done. I will refrain from commenting on the Resolution as per Article 107 of the Constitution that has been entered into the Order Paper of Parliament.  I need to comment on the backdrop and process of the impeachment.
An ordinary citizen has access to several safeguards in obtaining justice.  For example, a decision given by a lower court could be challenged in a higher court.  In the case of the impeachment of the Chief Justice or a Judge there is no similar recourse.  Therefore allegations must be converted into a charge sheet and then the evidence must be heard and carefully analyzed by the Parliamentary Select Committee.  Even in the instance an offense has been committed, it will have to be further examined if the offense warrants impeachment.  For example, former Chief Justice Neville Samarakoon’s speech at a tutory in Colombo was thought to be improper, but did not lead to an impeachment and he was subsequently acquitted.

It is no secret that there have been bad judgments on important issues relating to the interpretation of the Constitution and the sovereignty of the people.  It is also not a secret that there have been poor decisions by the Executive, and also by Parliament.  A case in point was the abolition of the 17th Amendment to the Constitution. Bad decisions do not always provide a basis for an offense. Bad judicial decisions of the past should not bias one’s view on the impeachment resolution It must also be pointed out that it was unfortunate that the Judiciary had presided over the reduction of its own independence when it ruled that the 18th Amendment was not inconsistent with the Constitution.  If modern democracies are built on the notion of separation of powers, then Sri Lanka has transgressed that principle with the adoption of the 18th Amendment.  It is also disturbing that the Constitution itself could be amended as an Urgent Bill, without time for public debate and consideration – an argument that appears to have not been considered by the Bench. A two-thirds majority in Parliament was not the mandate given by the electorate at the General Elections held in 2010.  The special majority has been created artificially by inducing crossovers from the Opposition ranks.

Sri Lanka is one of the few countries where laws inconsistent with the Constitution can be enacted through a special majority and referendum.  It begs the question whether such a Bill should be enacted into law or whether the Constitution itself must be amended after wide consultation.    The Divi Neguma Bill seeks to centralize power in a Minister, who is a Presidential sibling. The proposed Bill attempts to subvert Articles 148 and 150 of the Constitution which deals with public finance which is a part of the sovereignty of the people that is entrenched in Article 3 of the Constitution.  The Supreme Court has ruled that funds must be deposited in the Consolidated Fund and made available to the Divi Neguma Fund with the approval of Parliament.  The Divi Neguma Bill was a further attempt to strengthen the Executive arm of the Government over the Legislative arm, while others feel that it was an attempt to get at finances outside Parliament’s purview.

In another ruling on 22nd October on the Appropriation Bill the Supreme Court ruled that Clause 2(1) (b) and 7 (b) of the said Appropriation Bill contravened Article 148 of the Constitution giving Parliament complete control of finances.  Article 2(1) (b) was an attempt to raise loans without Parliament’s specific approval, and 7 (b) referred to the Minister’s discretion in allocating funds from one purpose to another without Parliament s specific approval. The Supreme Court’s recent rulings as explained above are a major irritant to the unbridled powers of the President and Executive arm of government.  The Court s newly founded assertiveness and exercise of independence is troubling for Government.  Dr. Shirani Bandaranayake as the Chief Justice may be a risk the Government does not want to take in the long run.  Those who are drunk with power need more power as an addict is devoted to his addiction.

It is in this backdrop that a resolution with allegations of personal and professional misconduct has been entertained by the Speaker.  Justice Bandaranayake has sat on the Bench for the past 15 years and her behaviour and judgments have been previously acceptable to the regime which then elevated her to be the Chief Justice. I do not wish to prejudge the charges against the Chief Justice. However questions will be raised as to their motivation.

The Executive and Parliament must now ensure that just and fair process will be followed and that the accused will be given the space and time to make her defense.  If not Sri Lanka will be a Constitutional Dictatorship

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    Good analysis. In the absence of a strong judiciary the tendency is for the govt to assert itself in tyrannical manner, bypassing the constitution. A strong Judiciary is required for this purpose.

    Impeachment of the CJ by the govt is a step taken soley to weaken the judiciary and have its own writ in place. All patriotic citizens should oppose this slide towards a military dictatorship.

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    Constitunaonl distorship was created BY UNP-JRJ ruling Class in 1978. New Un-republic and un-democray Constituation FOUNDATION WAS LAID DOWN BY UNP. Foundation of dictatorship was carry forwrad by successive President of Sri lanka, without any policy differances.
    But indeed , MR correctly handle to DEFETED LTTE TERRORISM AND END THE THIRTY YERAS OF WAR IN SRI LANKA.

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      It is true that the UNP led by JRJ introduced this Presidential system. There was no Dictatorship as alleged above was created as claimed. How individuals try to hoodwink thinking the rest are fools, thereby think they can bluff everyone. The present Dictatorship was not created by the UNP or JRJ. It was commenced by the Judiciary, by the former CJ Sarath N Silva delivering judgements not on Law but on his personal expectation. The first was to allow an individual as MR with an allegation of corruption of embezzling Tsunami Funds to contest, that which he publicly accepted a couple of weeks ago. Next, this Corrupt CJ permitted UNP MPs to cross over violating the very Constitutional provisions, resulting in an imbalance of power in the Legislature thus opening the door to Dictatorship. This is how the present Dictatorship was created and not by the UNP or JRJ. Whoever this half baked pundit Nalin Fernando is, should not go out in the rain or sun shine as it will further corrode his brain, that will warp his mind completely.

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      Nalin, you may surround yourself will gullible fools, who consider disjointed rants such as that above intelligent, but when you write on open forums such as this, please note that by assuming the rest of the world to be as gullible and ignorant as those who you surround yourself with, you only advertise your own ignorance and gullibility.

      Defeating the LTTE is irrelevant to the matter of whether Sri Lanka has sunk into a dictatorship or not. Though I guess anyone who is capable of defeating a ruthless bloodthirsty mob like the LTTE can be considered also capable of establishing a dictatorship and deconstructing a constitution. JR is dead! So is Premadasa! Blaming them will get our country nowhere! What we can do is, learn from our mistakes from the days when we ignorantly stood by and watched those crooks ruin our country, and stand up to the present day crooks who are continuing on in the same proud footsteps!

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    A very lucid analysis of the present situation prevailing in the country.
    One maybe even tempted to comment that the situation has arisen as a
    consequence to controversial judgements issued by the Courts ,themselves.
    Worse still , those whose voices could have made a difference, were noticeably silent . That perhaps , is the saddest part of this entire
    episode . Of how the voices which should have been the loudest when erosion of what they perceived to be their rights were in jeapody , were
    mild as lambs ! That was and is the tragedy we face today !

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    No doubt American system is far more democratic than ours. Whether it would suit us, I am not sure. It is wrong to blame MR for Constitutional Dictatorship. Total blame for that should be laid on JRJ for he could have replicated the US constitution in toto had he wanted to. But he didn’t. Why?

    They say; JRJ’s left hand didn’t trust his right hand. I say; it is because JRJ had the firsthand experience of bringing down governments by manipulating MPs conscience. Whatever it is, he picked the suitable clauses from both the US and French constitutions to make ours but for his survival.

    It is true that MR controls his Legislature with numerous carrots to all of his MPs. That and useless 13A must be costing a fortune for tax payers. But if MR wants to survive he has to follow tradition set off by JRJ.

    Remember, JRJ used perks as well as threats to rule his MPs. He started the car permits for MPs racket enable them to earn extra money. Then he cunningly obtained undated letters of resignation from every government MP to coerce them to tag on with him. The only difference with President Rajapakse as he says is; “anyone can come or go”. Indeed, he is not known to have asked for undated letters of resignations from his MPs.

    We need not argue that this will be a fair trial; in my opinion, neither government MPs or opposition MPs will be unbiased. How could it be? The UNP hadn’t set good precedence. Just think of the flimsy charge UNP impeached ex-CJ Neville Samarakoon.

    Needless to say Sri Lanka has been a Constitutional Dictatorship from the time this constitution was enacted.
    Leela

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      Leelawardene, inspite of accusations that from the time this constitution was enacted in ’78 that it served as a Constitutional Dictatorship is the biggest lie you have said. JRJ even having a 5/6 th majority in Parliament and undated letters of resignation did not act as a Dictator as MR. When R. Premadasa wanted to retain the 5/6th majority, JRJ dissolved the Parliament before he left office, to prevent a Dictatorship. But this Wasala Bugger MR coerced the corrupt in the UNP by allowing them to be Ministers to secure a 2/3 majority. No matter how much you try to distort history, we will bring the truth up for the readership to understand the truth.

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        gamini,
        Tell us why you are saying 5/6th majority is good for JRJ but bad for Premadasa. I never knew JRJ had serfs or tomboys.

        Please read the comment I have posted under Ranil Wickramasinghe thread and reply it practically but please try and relate your response to reality rather than untamed imaginations.
        Leela

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          Dumb Leelawardene, JRJ did not arrogate a 5/6th majority for himself, but the people of this country gave him and not to Premadasa. So for your foolish mind it does not arise why it is good for JRJ and not Premadasa. Whereas MR did not get a 2/3 majority, but he bought the MPs with Ministerial Portfolios to boast of a 2/3. Wait a little longer and see what happens to the 2/3.

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          gamini
          Actually, I wasn’t in Sri Lanka at the time, but as I understand it; people voted UNP and not JRJ at 1977 general elections. As I was told, Premadasa had attracted more crowd than anyone else at rallies held for that election. After winning elections, JRJ used his 5/6th majority shove his constitution passed just the way he rammed 13A in 1987. But I respectfully take your point.

          Now, what I cannot comprehend to my simple mind is that, being a great democrat as he is, why JRJ had prevented people elect their MPs with a pot and lamp fiddle in their ballet paper in 1982. In doing so, JRJ unjustly if not illegally extended his 5/6th majority for another six years. Is that not Constitutional Dictatorship? Tell us gamini, where in your democracy fit such acts. I can go on if you want.

          You see, your man, JRJ’s democracy prevented JVP and new Tamil parties getting their carders elected as MPs to parliament. And that is one of the reasons that made JVP to go berserk.
          Leela

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          Leelawardene, are you naive or blind or both? You say you were not in Sri Lanka during the ’70s. Understandable! yet you can not pretend not to know what happened as after ’77 unlike before Sri Lanka was opened up and brought to the world’s feet, in Communication and IT, thanks to the Open Economic policies of no one else but JRJ’s. From ’70 to ’77 the UF govt of kitchen brains being crowned as the Non Alligned Queen thought similar to the self proclaimed King of today that they were very popular among the masses. How pathetic you trying to take the credit away of the UNP victory in ’77 under JRJ saying the masses was for Premadasa. For your information Premadasa’s right hand man Sirisena Cooray after Premadasa’s demise contested the Colombo Central thinking that he will harvest the Premadasa vote and received less than two thousand votes and was thrown out. So much for your false facade of popularity you try to attribute.

          Then as for the Referandum which you term Dictatorial again you are displaying your ignorance on Democracy unable to understand Dictatorship. Had JRJ just extended the life of parliament without mandate, yes it is Dictatorial, but not when he sought approval through a Referandum which is a Democratic exercise. Therefore there is nothing illegal in a Referandum for your information, which is confirming the Democratic right of the voter.

          Then you claim that JRJ was responsible with his type of Democracy prevented the JVP and the minority parties from entering the Parliament. Leelo touch your head at the back and see whether any horns are growing? If not for the Proportional system of representation that JRJ introduced JVP and other minority political parties will be still fighting Insurgencies. Leelo I find you leaving the UK to come back and settle here once again as our loss and Britain’s gain.

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      Leela

      Re: It is wrong to blame MR for Constitutional Dictatorship. Total blame for that should be laid on JRJ for he could have replicated the US constitution in toto had he wanted to. But he didn’t.

      A: Why doesn’t MR reverse it?

      Re: But if MR wants to survive he has to follow tradition set off by JRJ.

      A: So his priority is ‘survival’; not what is best for his country, or his people? And this means it is okay to blame JRJ for everything that is wrong with the country? A dead man? And that will fix all our problems?

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    WHo is to b eblamed for it.UNP. Eran instead of writting should get to the streets along with his Leader Ranil. We do not need Opposition Leaders and MPS writting in the Web News papers but the walk the streets showing their opposition to the dictatorship. Oppostion leader in Zimbawe lead the oppostion against the Dictatorial Preseident and finally he won. Here Ranil and his clan tour abroad and have nice discussions with President whenever the latter wishes. Whether National List MP or elected MP, they will have to lead struggle. Enough of Articles what wee need action from the opposition. They are letting down the people who supported them and the people who did not then but now. If it is difficult for peopel like Eran who worked in the plush Air conditioned offices of banking institutions and world bank funded ICTA to walk the streets but then they should not get politics and parliament. Leave it to someone who can

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      Raja,
      Your advice is good but cannot be followed in a militarised regime without personal danger – there is a long history.
      See what happened to the prisoners at Welikada.

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      Getting on to the streets seem the answer for some. But will it deliver just like that? No, so many will have to pay with their lives as what was seen at Welikada. None of these who espouse large scale demonstrations or blame RW for not agitating will not participate in any demonstration. They are the armchair critics. When life is lost they will heap blame on RW again saying due to his greed for power, people were killed.

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    “Those who are drunk with power need more power as an addict is devoted to his addiction.” Quite true, Mr. Wickramaratne. Now your leader is not happy with being elected the party leader for one year. He wants to be elected the party leader for a six year term! I personally appreciate your contributions to Parliamentary debates and your other political efforts at an academic level. But it is a pity that intellectuals in the party like you have not realized that there is no future for the UNP under the leadership of a political weakling like Ranil Wickremesinghe. Sri Lanka is on the way to a ruthless unconstitutional despotic regime – to call it a Constitutional dictatorship is an euphemism -thanks to the failure on the part of Ranil to build up a strong opposition. Your leader is responsible for the present sad state of affairs. Why don’t you prevail on him to step down from the leadership to make way for someone capable to take over the reins!

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      Saman Wijesiri, can you propose a name of a successor for RW? I find it is the weakest of individuals who have not attended a single rally of protest who voice strongest that RW is weak without knowing the ground reality of unseating MR.

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    Gamini, there are several front-liners in the party who, I believe are capable of leading the party back to its pristine glory. But I do not want to name names. Ranil killed the spirit of the party activists when he meekly caved in under the pressures exerted by Chandrika. A leader who does not possess the charisma to hold on to the power he has got at a general election, does not deserve to be returned to power! He could have easily prevented the dissolution of Parliament and the grabbing of three Ministries by Chandrika! He commanded about 130 votes in Parliament and he could have done wonders with that majority.But, alas! He did not have the foresight or the guts to defeat the moves made by Chandrika, his childhood playmate! It was his weakness that triggered the denudation of the UNP. He does mot know the art of winning over people. What is worse is he keeps on alienating even those within the party ranks. True, he is honest in the sense he will not rob the public funds.True, he wanted to avert a blood bath when he signed the CFA. He is not racialist and he is capable of solving the ethnic tangle. He is not a political cheat either. But, Gamini, he has proved that he is not leadership material. Let him be the senior patron, not the leader of the UNP!

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      Saman it is said that RW took some some 14 hrs to come to Colombo from NY and it took over 15 hrs to come from Katunayake to Colombo due to the massive crowd that had come to meet him. There were many who had proposed that he should go to Temple Trees direct and take on CBK. Imagine had he gone CBK would have used maximum force to disperse the crowd, some innocent would have got killed and every likely hood that RW would have been arrested for Civil Dissobedience and charged for same. Now had that happened, these very same who speak ill of RW now for not agitating, would have blamed RW for dong exactly that, further blaming him for the innocent deaths accusing RW, that he sacrificed human lives for his greed for power. That day had RW done what some wanted him to do, believe me RW will be languishing in Jail still and out of UNP as well. Saman I am sorry RW is far more intelligent and very far sighted than most of you. You will see this aspect of his in the near future.

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    I understand that a crowd of about 500,000 had gathered at the airport that day and most of them had followed Ranil’s motorcade up to Colombo. He could have got about 100 party activists to stage a sit-in around the Temple Trees! He could have sent shivers down Chandrika’s spine. Headstrong as she was, Chandrika yet had a head on her shoulders. After all, Ranil was the Prime Minister and she would have thought twice before triggering a crisis by taking such extreme measures. Besides, though Chandrika had certain faults, she was no fool and she was quite sensitive to international opinion. I agree, Gamini, that Ranil is intelligent and he possesses some sort of political wisdom, but he can never win the support of the masses. He lacks the communication skills necessary to reach the hearts and minds of the people.

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      I really dont think as you say that RW can never win the support of the masses. If he does not, who else would have the political maturity to face challenges ? Right at the moment, people of the country is not at all happy the way MR handles CJ impeachment and serveral other issues related to the rule of law. The masses are becoming clear that the current rulers are on their way paving up the the ways for a dictatorship. Many of the country would not support him as a dictator. People are sielent today- but they are not fools.Their behaviour is deep water is calm. Looking at the manner that MR ^s unexpected reactions being close to former CJ -Silva caused many of his sympathizers to rethink how MR has REALLY been. I also believe the conflicts within UNP will be over soon and they will be united to go against the rulers and save the nation from the dragon.

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    I think three major events (leaving the others to a less degree) happened for the down fall of LTTE and prabhakaran.
    1) Assassination of Rajiv Gandhi.
    2) World center bombing
    3) Mavil Aaru sluice gate.

    I think Mavil Aaru sluice gate fiasco was led to the immediate down fall of VP.
    What I want to say is now a days you don’t need a major catastrophe to occur for a power change. A small stupid blunder is enough for a down fall. Now I don’t see much difference between VP and MR’s decision makings.

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      Jayantha when I see how craftily world events with ours inclusive have been manoeuvred for the public to be led to believe otherwise I am truely amazed. Just think why or what was the benifit for the LTTE closing the Mawil Aru Anicut? One was to hype the public anger towards the LTTE. The second was to draw the Govt. Forces for a Staged War. What did the LTTE do after drawing the govt. Forces to a war? They bury all their heavy weaponry with Artilery guns, which are being uncovered today and under thirty months inspite of the North East being heavily landmined yet they capture. The Forces wade through a skeletal force of the LTTE stationed although both sides exagerated the War Dead in a Propaganda War. In the end although highly advertised the LTTE were holding the Tamil Civillians as a Human Schield, all but the Tamil Civilians barring the LTTE comes across the lagoon on to the mainland under the Forces. It is at this juncture that VP and his LTTE cadre gets played out with the White Flag story of Sarath Fonseka. MR is going ahead with the rest of the plan accomodating KP and crowd and now time is running out fast for MR unless he can secure a third term under the 18th amendment, desperately trying to establish through the Divi Naguma Bill, which looks very bleek at the moment.

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    Come on, Gamini, face the reality. There are many intellectuals like you labouring under the illusion that Ranil is the only leader capable of leading the UNP to victory at a future national election. I am from the village. I move with people, travel on train and in buses. Therefore, I know that the ordinary people have no faith in Ranil. Colombo-based lawyers and businessmen backing Ranil are only beckoning a tyranny, an irreversible slide to an abysmal depth. We need not throw Ranil overboard. Let him remain on board,but let somebody else be at the helm!

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      Saman, I too use public transport and associate the urban and the village folk. The ones who hate the guts of RW are some of the dishonest Intellectuals, Businessmen waiting for shady deals, the Govt. Politicians and some of the Corrupt UNP members who claim they are reformists. As for the Urban and the Village poor they do not despice RW, such as the former, but some of them have placed their faith in MR that they will benifit from MR. First the war and the economy. Now the majority are disillutioned about the Economy and if you ask any about the 2013 Budget they will tell you what they really feel about Racing cars for the rich and increasing the taxes for the comodities. Further the canard that RW gave part of the country to the Tamils also viewed sceptically that if so why VP helped MR to become the President. Besides the euphoria of the so called War Victory has waned. What one must remember is that ‘Power’ is like a pendulum swings from side to side from time to time and never stays on one side for ever. The UNP then thought ushering the Mahaweli Development, Gam Udawa Housing for houseless, Employment through the Garment Industry will enable them to stay in power forever. But it was not to be. Therefore other than the few who are anti RW the masses will turn to RW as everyone knows that he is not Corrupt and behaves like a Gentleman.

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    I think we are wasting time talking about JRJ,MR and Ranil and so on…You can analyse till cows come home but that will not bring a solution to Sri Lanka.The country is going down the drain daily at faster speed than it used to be.So stop please talking about history and these idiots, and try to think out of the box.Get a new guy.It doesn’t matter he is going to be right or wrong.First change the system to new direction.Then think of getting it in to the right path.Change is what we needed at present and support that change…When a brave man come forward help him…

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      It is said that a man burned by fire is afraid of a fire fly also. I concede there is no point in discussing of things past or about JRJ or MR. Who is the new Guy to get? As the saying goes The known Devil is better than the unknown Angel. Therefore I prefer to come out of the impasse, to go with RW is the best, the Known Devil.

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