1 August, 2021

Blog

Shirani As The Lawful Holder Of The Office

By Charitha Ratwatte –

Charitha Ratwatte

Natural law is a system of law which is determined by nature and thus universal. Natural law refers to the use of reason to analyse human nature and deduce binding rules of moral behaviour. Natural law holds that morality is a function of human nature and reasoning and those valid moral principles of conduct can be discerned by studying the nature of humanity in society. Basic and fundamental rights and values are considered to be inherent in or universally cognisable by virtue of human reason or human nature.

As human society emerged from the itinerant hunter gatherer stage to one of stabilised and settled communities in the fertile river valleys of West Asia, South Asia, Central Asia and China, universal rules of conduct and behaviour evolved from the natural law principles, which human beings followed, to a code of universally accepted rules which were enforced by the leaders of the community.

When disputes arose among community members over enforcement of the rules by the leaders, the necessity for interpretation, arbitration and adjudication emerged. Over time a group of persons, other than the leaders who codified and enforced the rules, trusted by the community, to listen to all sides of a dispute and to be fair and unbiased in determining the issues in dispute, of necessity emerged. The determinations made by these adjudicators began to be universally accepted as applying to later disputes, relating a similar set of facts, and thereby precedent and common law emerged.

Common law is a legal tradition whereby certain rights or values are legally cognisable by virtue of judicial recognition or articulation. Two fundamental principles – the rule against bias and the right to a fair hearing – have over time come to be recognised as the two fundamental principles of natural justice.

Manmade law

As human society became more complex, manmade law, came into existence. There was a need to formulate rules to govern new situations, which did not arise in a natural state of affairs. The need to barter and trade required set standards and behavioural rules.

The need to meet the expenses of defending a community from external threats, the expenses incurred by the leaders in undertaking their onerous duties and maintaining their (mostly extravagant) lifestyles, the expenses of those whose task it was to adjudicate and settle disputes, gave rise to the need to raise revenue and taxation came into being.

Representative government, ‘no taxation without representation,’ evolved. People wanted a say over how taxes were raised, what was done with the taxes they paid, they wanted to ensure that taxation was just and lawful and that expenditure was not wasteful. Even hereditary rulers, notwithstanding their claimed ‘divine right’ to rule had to subject themselves, to ‘God’s law,’ to other religious rules like the Dasa Rajah Dharma, to tradition, custom, natural and common law themselves and to the scrutiny of their actions by their subjects, as to their behaviour. Even when absolute rulers were complimented or replaced by elected rulers, the latter’s actions were also subject to law.

Where there is a written constitution, all is subject to that supreme document. Even though the legislature may have the power, through a specially specified process, to amend the constitution, such a constitution, until so amended, is the supreme law. Even where there is a purported amendment, the authority which is vested with the power of interpreting laws has the power to examine such amendments to evaluate whether they are lawful and in terms of and comply with the constitutional and due process provisions – including the natural and common law – fundamental human rights.
Only in Britain, where the constitution is ‘unwritten’ that is, not contained within the pages of one single document is the power of the Legislature (Parliament) claimed to be untrammelled and supreme. But, even in Britain, today, the reality is that the ‘Queen in Parliament’ is no longer sovereign or supreme. The European Communities Act of 1972, the Human Rights Act of 1998 and the three 1998 acts devolving powers to the legislatures of Scotland, Wales and Northern Ireland, constrain the power of legislation of the ‘Queen in Parliament’.

Sri Lanka’s Constitution

In the present written Constitution of Sri Lanka, the powers of government have been kept separate and the independence of the Judiciary and the protection of fundamental human rights have been guaranteed. There is both institutional and functional division between the power of enacting laws and the power of implementing those laws. The power to interpret and adjudicate on those laws is also separated.

Such a system cannot work without an independent institution to arbitrate and determine issues on the subject of allocation of the powers of government and to interpret laws. Fundamental rights will be meaningless if there is no independent institution to protect the individual when those rights are violated.

The argument that the people who make laws are elected, and therefore appointed persons cannot sit in judgment over them is plainly ridiculous. Legislators are subject to law, the law properly enacted in terms of the Constitution by their predecessors and themselves. They can certainly change the law, but they can do so only within the limitations of existing law and by the laid down process – the exception being the purported ‘revolution’ proclaimed by the framers of the 1972 Republican Constitution.

The Constitution of Sri Lanka provides that the judicial power of the people shall be exercised by ‘unelected’ judges! These members of the Judiciary are vested with the power to control and limit, according to the terms of existing law, the elected representatives and the administrators of law.
It has been said that ‘the price of liberty is eternal vigilance’. The vigilance referred to must mean the vigilance of those ruled and the vigilance of a Judiciary to which the ruled have recourse from abuse of their rights by the rulers. The Constitution and laws of Sri Lanka gives no organ of state, the legislators, the administrators , the adjudicators, or even the fourth estate – the media ( constrained by the laws of defamation) – unlimited power. All power is constrained by law.

The legislators are constrained by constitutional limits of their power to enact laws and special processes required in prescribed situations. The administrators are constrained by rules of administrative law, principles of natural justice and fundamental human rights. The adjudicators are constrained by the laws they interpret, precedent and due process requirements. Rarely a court may foray into interpreting a law in such a way, that they could be accused of making law, what is referred to as ‘judge made law’.

While the common law has evolved in this way, in today’s environment where most laws are statutory and judges prefer to interpret the ‘plain language’ of statutory provisions, ‘judge made law’ is rare. But corrupt and unprincipled false judges, from whose pronouncements there is no recourse for further appeal, may, for all the wrong and corrupt reasons, decide to be innovative and create ‘false judge made law,’ which may be slavishly followed as precedent later!

We have seen this in the recent past. The preamble to the Constitution of Sri Lanka says very clearly and categorically that the people ‘ratify the immutable republican principles of representative democracy and assuring to all people’s Freedom, Equality, Justice, Fundamental Human Rights and the Independence of the Judiciary’.

The Constitution provides for an independent Judiciary and protects the citizen’s fundamental human rights. This necessarily means a duty is imposed on some others – a duty of accepting and obeying the interpretation of law by the Judiciary and the accepting and not limiting unconstitutionally the rights and freedoms of the individual. The Constitution is the Supreme Law, the argument ends there.

Unconstitutional and illegal

The Attorney General argued before the Court of Appeal that the writ jurisdiction of the Court does not permit it to issue writs in matters relating to the impeachment of judges.The Court declared that if the Constitution wanted to prohibit its writ jurisdiction, the Constitution would have express words laying that down in plain language.

A ruling by a previous speaker of Parliament based on the assumption that the powers of Parliament are unrestricted is also clearly misconceived in law. Under the current Sri Lanka Constitution no organ of the state is supreme, only the Constitution is supreme.

The Court of Appeal of Sri Lanka has issued a writ of Certiorari declaring that the determination and the findings and/or the decision or the report of the Parliamentary Select Committee constituted to impeach the incumbent Chief Justice of Sri Lanka is unconstitutional, illegal, and therefore flawed. The issuance of this writ at one stroke takes away the legal basis for the current process to impeach the Chief Justice.

Notwithstanding this, Parliament has voted to accept the determination of the Select Committee and the Speaker will send an address to the President that the resolution on the findings of the select committee has been accepted by Parliament. The President is expected to issue a warrant purporting to remove the Chief Justice from office. (There is said to be backdoor negotiations going on, which are not in the public domain.) Commentators describe this as an open and blatant violation of the Constitution of Sri Lanka. Any further steps in this process are illegal and unenforceable in law.
While the incumbent Chief Justice will continue to be in law recognised as the lawful holder of the office, any other persons who is purported to be appointed to this post, would be clearly a usurper to the office. No judge lawyer, litigant or member or members of the court staff could be lawfully asked to serve such person. In fact serving such a usurper would be illegal and in contempt of court. Such a usurper will have no constitutional authority and cannot lawfully preside over a Court as Chief Justice.

The decisions made by such a person would not have any binding in law. Attorneys at law and litigants will have no reason to appear before or present their disputes to a body presided by such a usurper. If the usurper’s appointment is challenged, the court would have no option but to declare that the usurper’s appointment is unconstitutional and illegal.

Law of Unexpected Consequences

Looking at the chaotic situation which can arise, one cannot but agree with the senior Lord Justice in Britain, who at his felicitation , on retirement, said that his entire career of over three decades as a judge has reinforced his faith in only one basic and fundamental law – the Law of Unexpected Consequences!

Very often the outcomes of an action are vastly different from what was planned, intended or anticipated. When the appointment of the incumbent Chief Justice, from the rarefied atmosphere of academia, to the bench, her elevation to the Head of the Judiciary and the decision to set in train the impeachment process were taken, at different times, these decisions would definitely have been taken with certain outcomes which were anticipated. No one in his right mind would have expected the current imbroglio!

It has been said that a constitution laying down principles of government seeks to solve the problem of how to give sufficient power to the country’s rulers to allow them to govern efficiently and yet ensure that the government will not encroach unreasonably on the fundamental liberties of the individual, by seizing more power than was intended and interfering arbitrarily in the citizens way of life.

Thus a constitutional regime has two purposes. First it restricts the actions of individuals. Secondly it protects the individual by defining the power granted to those in authority. The totalitarian idea, that some would-be dictators have, that there is no such thing as law and that there is only power, is untenable in a legal regime with a written Constitution such as Sri Lanka.

However, even when there is no written constitutional document, absolute power, is, in practical terms limited by convention and tradition which inhibits the actions of the ruler. Under the traditional Sinhala Buddhist monarchs of Sri Lanka, power was constrained by the Dasa Raja Dharma, the Buddhist principles of good governance and the Sirith Virith (customs and traditions) of governance. Decrees made by one ruler, would apply in perpetuity, until changed. Indeed the very words of the decree prescribed that the decree should apply ‘as long as the sun and moon lasts,’ i.e. in perpetuity.

In some stone inscriptions and Ola leaf manuscripts containing the Monarch’s decrees, the symbols of the sun and the moon were engraved. Even in the context of an unwritten constitutional regime as in Britain, in which the legislative power of the ‘Queen in Parliament’ is unfettered, has today undergone change, as described above, by statutes enacted by that legislative institution itself, protecting human rights, devolving power to regional assemblies and subordinating itself to the jurisdiction of the European juridical institutions.

But even before this, conventions – practices regarded as binding – which experience has shown to be necessary for developing, within the law, existing institutions, which are essential for government to be carried out in the true spirit of the constitution exist.

Conventions arise because politics is essentially a matter of human relations, as in our everyday life. Customs are observed which make everyday life harmonious. Obviously such conventions, in the British context vary in importance. Some, as the Monarch having to call upon the leader of the majority party in the House of Commons to form a government, are obviously fundamental. Others like appointing member of the opposition as Chairman of the Public Accounts Committee, may not be fundamental, but are essential for government to be carried out, with a specific constructive and conventional role for Her Majesty’s Opposition.

Readers should note that in Sri Lanka, we followed the tradition of an Opposition member chairing the Public Accounts Committee, but in our steady progress to a dictatorship, we jettisoned that convention!

Long-term repercussions

Everything is connected. The current situation regarding the impeachment of the Chief Justice, whatever the outcome, will have irremediable long-term repercussions on our country. Those who set the process in train as well those who executed it will rue the day they did so.

The late environmentalist Barry Commoner said that ‘the first law of ecology is that everything is connected to everything else’. This principle will apply equally to constitutional processes, to the investment climate, to confidence in the economy, to respect for the law, protection of human rights, to the rule of law and to overall good governance.

Lord Justice Bingham, a former senior Law Lord in Britain, in his magnificent work ‘The Rule of Law,’ says: the core principle of the Rule of Law is ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made… and publicly administered’.

This would apply equally to: an investor in a branch of the Janashakthi Banku Sangam of the Hambantota Women’s Development Federation, to a detainee suspected of being a cadre of the LTTE in Mullaitivu, to an Imam of a Mosque in Puttalam, to a retired employee of the RVDB in Ampara, to the President of the Republic, as well as to the Chief Justice and other Judges of the Supreme Court of Sri Lanka.

News is that the President has issued a warrant removing the Chief Justice. Await with trepidation the unpredictable results of the operation of the Law of Unexpected Consequences!

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Latest comments

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    Charitha
    It is good to see you coming out of hibernation. Get back to the party of your friend and put some sense and structure as you did previously

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      What party? There is no UNP . Have you not noticed that we have our own Sadam Hussain and his family reincarnate in Sri Lanka ? And his very own Tarique Aziz , not as Prime minister but, as the leader of the opposition in Sri Lanka?

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    The self proclaimed monarch staggers from crisis to crisis. He sponsored a impeachment motion and got rid of a CJ. Now he has appointed a scoundrel and rogue as CJ. Seems he has now become partially or fully insane. Very soon he will be shouting at his own people and kicking them out. Looks like a case for Angoda.

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    Charitha, the contents you have alleged is acceptable. But there is a difference between the Sri Lankan system and of UK, USA, India, Canada, etc. Sri Lanka adopts unicameral system which was deliberately introduced by the political leaders for their benefits. They want to do away with the system of Checks and Balances. In UK, USA and Canada politicians are real gentlemen who really tender their resignation immediately on any sensational issue. In Sri Lanka, as far as I am aware, only Dudley and Ranil had tendered their resignation immediately, once they found that the people are not with them. Others used to drag for three days to tender their resignation in typical Sri Lankan style. Moreover, MR should realize that he should not mix the victory of war and the civil administration. Sir Winston Churchill led victorious battle at the 2nd World War, but was defeated after the war. British people are no fools, they are vigilant. Here is a case where MR was trying to forge Bill through the Supreme Court and Justice Dr.Shirani Bandaranayake has declared it unconstitutional, which was a great disappointment for MR & Co. She has taken into account all the relevant factors for the benefit of the entire country, which does not mean that she has failed to tow the State Policy as alleged by MR. That is totally absurd. She has acted as an Upper Guardian of the people in the absence of an Upper House and of preserving the people’s sovereignty and in the best interests of the entire people of the country. That is very clear. The allegations of the Parliamentarians that Parliament is supreme is without foundation. Parliament can only make and unmake laws. It is the constitution that is the supreme law of the land. But the interpretation of the constitution only rests with the Judiciary and not with any arm of the government. Here is a case where MR & Co. have indulged in various illegal activities such as importing of formalin worth Rs.2,000/= million apparently for Kasippu business, non-payment of customs duties for 19 luxury cars at a time when ordinary citizens are unable to get a decent meal, etc. Moreover, the allegation about the Golden Key Depositors has also been misquoted by MR & Co., when Dr.Shirani was about to hear that case. If she was given a free hand to try that case, number of incidents would have been exposed – what happened to those monies and who swindled them and their modus operandi and who bought shares in big businesses and of the failure to examine those shares by the Inland Revenue, etc, etc. Why was t MR & Co. in a hurry to fabricate charges on the CJ and bring an impeachment through the PSC where MR’s brother as Speaker played a vital role. Further, the laws were mutilated with the military might for which MR’s another brother was in charge of the Defence. When MR & Co. with the hooligans waged a war on CJ Dr.Shirani, she was compelled to take legal action through the highest court of the country. Accordingly the Court declared the entire process of the Parliament a nullity. When MR & Co was cornered by the Supreme Court and the Appeal Court in upholding the Constitution, they violated all provisions of the Constitution and took steps to sign the Impeachment and appoint a new corrupt CJ, all of which was illegal. It is at this point the Police instead of guarding and respecting the Judiciary, began to threaten the Judiciary which sends the message that the Constitution was almost jointly raped by the Executive and the Legislature and strangled the Judiciary. It is a signal that the sovereignty of the people has been deliberately snatched. When the Constitution is raped, the enjoyment of civil liberties becomes out of question. This ends the Rule of Law in Sri Lanka. The statements that MR recognizes the independence of Judiciary is misleading and intent to deviate the attention of the people. It is a sordid state of affair to see that MR appoints corrupted people to key positions whether in Government offices or Ministerial Posts. MR has to learn a lot from UK, Canada and USA about the Parliamentary Procedures and the respect for Judiciary. On the contrary MR was following the tactics of the leaders of Libya, Iran, Iraq, Egypt and Pakistan and leading Sri Lanka to be a failed State. This being the situation how are the judges of the Supreme Court and the Court of Appeal going to demonstrate their verdict on the Parliament to the new CJ whose appointment is also illegal. Will the new CJ answer that Sri Lanka is now a totalittarean country and not a democratic country hereafter.

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    WE DO NOT WANT YOUR FRIEND WHO IS LIKE ,WHAT TARQUE AZIZ WAS TO SADAM HUSAIN. ASK HIM TO GO HOME PLEASE. AS OF NOW ,WE WILL VOTE FOR THE UNP BUT WILL NOT CAST A MANAPE FOR RANIL THE SPINELESS TINKERBELL. IN TIME TO COME IF ALL THOSE SPINELESS FOOLS KEEP FOLLOWING RANIL WE WILL FIND SOME PARTY TO VOTE FOR

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    It was nobody else, but due to the pure inefficiency of the leader of the opposition party Mr.Ranil Wickremasinghe that lead to the humiliated discharge of Madam CJ Shirani Bandaranayake.

    My whole generation including myself are strong UNP supporters and we were party supporters for VA Sugatadasa during our young days. But we are ashamed to see Ranil’s behaviour and cannot understand his confused double game MIND SET. FOR ME HE IS LIKE A “VAVULA” Bat.

    The Jacka..s waited until CJ was wrongly procuted…..while getting his rupees 89 million pin padi(our money) with foreign tours from big boss.

    Here’s the reason to back up may case against MR.Do Little.
    ————————————————————————-
    1) RW not only, did not participate to hear the Appeals court hearing…but also restricted the other two UNP PSC members from attending it.

    Please read and listen to the following VIDEO what Mr. Wickremasinghe said during the SiriKotha UNP party membership drive.

    http://www.dailymirror.lk/news/24804-media-must-apologise-to-unp-ranil.html

    1)Ranil clearly say that finally SC said what HE said was the correct decision…..what his correct decision….
    I want to know what correct decision SC verdict to say what RW said was correct.
    What Appeals court said was that Parliament PSC CJ verdict was unconstitutional and viod……So what is Ranil saying other than Lying.

    2) Also RW says that SC CANNOT TOPPLE MR GOVERNAMENT……..I want to know who said that SC is trying to topple MR govt……It is utter lies…….Both CJ, SC, Appeals court and WE are only looking for justice for CJ with an impartial hearing and not to topple the govt.

    3)RW also say that he is treated like a FOOT BALL WHERE HE BOUNCE WHENEVER HE IS BEEN HIT.

    WE KINDLY TELL MR.RANIL THAT HE IS ALREADY A FOOTBALL WITHOUT AIR. THERE IS NO POINT HIM TO THINK WINNING ELECTIONS WHILE HE IS IN THAT SEAT…..AND MAY BE HE KNOWS IT……But with a Rs: 86 million annual pay…….he don’t mind dreaming to be ever to be the opposition leader.

    4)IF RW and the UNP PSC two members came for the Appeals Court Hearing, it would have sent a strong message to MARA not to play politics with Judiciary and with country’s constitution……

    BUT HE PURPOSLY SKIPPED IT AND ALSO FORCED THE 2 UNPer’s not to attend……following MARA’s advise.

    Then during the debate he was shedding crocodile tears telling “Speaker to Intervene”……It is the biggest joke one could hear for the whole life. Whom he try to deceive…..MR Paid Joker. Don’t he know that MR is already a dictator. while RW think of winning election in 2014…….What a Joke.

    RANNIL YOU LET US AND THE WHOLE UNP DOWN AND HUMILIATED. ENOUGH IS ENOUGH.
    TO GET RUPEES 89 MILLION PAYCHECK AS SANTHOSAM FROM MARA DOING NOTHING TO THE PARTY AND TO THE COUNTRY IS MORE THAN ENOUGH FOR YOU TO STAY AS OPPOSITION LEADER FOR EVER.

    You can’t even stand for half hour when you give a speech……leave alone winning the next elections.

    Could you honestly tell that you could walk six miles a day meeting people and convincing them to vote for UNP…….or you are simply plan to enjoy foreign trips every other month with your payroll bonanza……
    If you are sick….or feel sick and tired…..please leave your post and give to a strong Stalion to do the job. We don’t want sick goats….but strong stalions to lead UNP.That’s why president treats you like a Pambaya.

    I saw only Sajith, Ravi , Dayasiri,Ranjan manayake,Mangala, Buddhika, giving away Gifts and Parcels to FLOOD VICTIMS AND NOT YOU MR. CHE..TER….

    Mr. Ranil Wickremasinghe.
    Please visit the following web. and give us your views.

    http://www.sundaytimes.lk/130106/business-times/why-are-unp-mps-silent-over-a-new-daylight-robbery-sale-of-duty-free-car-permits-26753.html

    You talk like a five year old child and act like a Clown.
    You have to change your appearance, behaviour and personality, speach, points,and producti8ve criticism…..to look loke a Man and not a q…r… Please learn from Sajith, dayasiri, Ravi, Mangala and Sumanthiran. Go for a Political speech class ….and learn. It’s not too late.

    Please Give your post to some more capable MP’s in the Party.
    I am telling for your good……if not very soon you will also get a rotten egg and tomato treatment like what MARA got in England.

    It is better to leave respectably…….than chase as a Coward and a goon.

    Choice is yours.

    Finally I tell Mr.Wickremasinghe…..Please if you have any bit of self respect left…..don’t go to President’s house to have BLACK COFFEE WITHOUT SUGAR.

    IF YOU WANT I WILL SEND YOU THE BEST COFFEE IN THE WORLD….ETHIOPIAN OR COLUMBIAN COFFEE……BUT FOR OUR ONE SAKE AND RESPECT PLEASE STAY AWAY FROM GOING TO PRESIDENT’S HOUSE TO HAVE BLACK COFFEE.

    IF YOU WANT TO MEET PRESIDENT…..MAKE IT IN THE PARLIAMENT…….BUT NOW LEAVE PARLIAMENT AC CHAMBER AND GO TO CONVINCE PEOPLE LIKE WHAT JVP IS DOING.

    PLEASE FOLLOW THE EXAMPLE OF MADAM CJ.BANDARANAYKE.

    Thank you.

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      jAYANTHA , R.W. has many weaknesses. But in the C.J. issue he played the game right. There are many issues you are unaware of. I fyou talk to a neutral Political analyzer, he will explained R.W. played cleverly on this one. He simply took the U.N.P. out of the firing line. Even if the weight of the whole UNP was put behind C.J. , the out come wouldn’t have changed an inch.

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        Paul Smith,
        What do you mean by” He simply took the U.N.P. out of the firing line”
        if you could explain.

        If UNP would have gone for the Appeal’s court hearing…it would have sent a strong message to MARA that all the opposition is against the PSC verdicet,and the Judiciary verdict is more stronger than the PSC one.

        Also mind you this was a media show and the world would have looked differently when the main opposition party opposing PSC verdict.

        Also now the latest is Speaker say that main opposition UNP party both accepted that both Parliament is more superior than judiciary and by voting for final count, UNP has agreed for the validity of Parliament following the Constitution.

        See now where UNP stand……other than giving some press interviews…..

        I am pretty sure Ranil wanted to save Parliement since he is getting his 89 million annual payroll and also to keep his parliament club membership going.

        Good for Ranil…..not good for us Citizens.

        I think we have to get rid of Parliament for good and delegate those work to Supreme court.

        Bring in some Highly qualified profressionals to run the Corporations, service sector and other businesses of the country.
        We don’t need anymore those pin padi Parliament Crooks.

        Hope you agree…..let me have your views.

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    This is spectacular, it means that there will be no cases that can be heard in front of the new CJ and any judgement that has his signature is not valid.

    When extrapolating this and applying logic this makes the entire justice system invalid, Since the leader is illegimate all he stands for is illegitimate?

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    Dear Madam CJ Shirani Bandaranayake.

    We your loving followers will never leave you. You are our CJ for ever.

    Clown Paka…a Bast….d MARA or his goon Mohan cannot replace you.

    If I call MARA a Fuc….n Basta….d I don’t see why others including you Can’t address him.
    MARA Fuc…..g Bas……rd have lost all our respect. He is just a Nariya in the jungle.

    We will get him and his gang family pretty soon either in Sri Lanka or outside.

    Again we tell you that your position is always reservced for you and nobody could take away.

    Please have extra security with CCTV and private security.

    There are emergency alarm system (CB/Tel/ Radio wave) available in USA.
    It’s an emergency alarm system.
    We could send a set for your family. If you are interested Please respond to this comment.

    Also there are smoke bombs, pepper spray and Hi Voltage laser, stun and taser guns…..if you are interested

    Take care and God Bless you.

  • 0
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    ‘rue the day they did so”. It happened to Premadasa, it will happen to all those that keep this govt going.

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