16 May, 2022

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Is Going Back To The 19th Amendment Sufficient?

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne PC

Part I: The Legislative History of 19A

There is broad agreement today, at least in the Opposition, that the Twentieth Amendment to the Constitution that did away with most of the provisions introduced by the Nineteenth Amendment (19A) must be abolished. The writer is of the view that going back to 19A is not sufficient and that certain contradictions in 19A must be resolved in favour of Parliament.

Of the main parties in the Opposition, the Tamil Nationalist Alliance (TNA) and the Janatha Vimukthi Peramuna/National People’s Power (JVP/NPP) are for the complete abolition of the Executive Presidency. The Samagi Jathika Balavegaya is for going back to 19A and for checks and balances to be introduced to the Presidential form of government. SJB leader Sajith Premadasa, then in the UNP, vowed in his Presidential election manifesto to continue the constitutional reform process begun by the 2015 Parliament and spoke of the President “acting with the concurrence of the Prime Minister”. The 43 Brigade is for the democratization of the Presidency by restoring 19A while addressing its “inherent weaknesses”, which are not spelt out. The United National Party, which introduced the Executive Presidency, changed its position to its abolition at the party conference held in Tissamaharama about a decade back but its present position is not clear. Most civil society organizations are for complete abolition.

The drafting of 19A

To fully understand the contradictions in 19A, it is important to know its legislative history.

In the MoU that he signed with nearly fifty political parties and civil society organizations at Vihara Maha Devi Park under the auspices of Ven. Maduluwawe Sobhith Nayaka Thero, Maithripala Sirisena stated: “The present executive presidential system will be abolished within a hundred days and replaced by a Parliamentary form accountable to the people.” However, the very next day, he signed another MoU with the Jathika Hela Urumaya (JHU), in which he agreed that constitutional amendments requiring the approval of the People at a referendum would not be presented. This effectively killed the complete abolition of the Executive Presidency. The same limitation found its way to Sirisena’s election manifesto. (The writer is among a small minority in the legal community who believe that the Executive Presidency can be abolished without a referendum. More on that in a forthcoming article.)

The 19A Bill was drafted under the supervision of a Cabinet sub-committee chaired by Prime Minister Wickremesinghe and consisting of representatives of all parties represented in the new Government. Drafts were shared with all members of the committee at every stage of the process. Several changes were made to the initial drafts as the Attorney-General took the view that some proposed provisions would need a referendum.

The Draft Bill approved by the sub-committee was submitted to the Cabinet and taken up for discussion on 12 March 2015. The Draft provided that the President would not be the Head of Government as in the original 1978 Constitution and that the Prime Minister would be the Head of the Cabinet. The President would not hold Ministries, except that the incumbent President would hold the Ministries of Defence, Environment, and Mahaweli Development. Ministers and Deputy Ministers would be appointed by the President on the advice of the Prime Minister. The Prime Minister could change the assignment of subjects and functions of Ministers and recommend to the President changes in the composition of the Cabinet of Ministers.

The Draft also provided that the President would act on the advice of the Prime Minister or of such other Minister as has been authorized by the Prime Minister to advise the President with regard to any function assigned to that Minister. There would also be a Deputy Prime Minister.

Changes to the Draft Bill

On 12 March 2015, the Cabinet decided that there was no need for a Deputy Prime Minister and that the President should act only on the advice of the Prime Minister. Further discussion was put off for Sunday, 15 March 2015.

The President then called a meeting of leaders of political parties for the morning of 15 March. The TNA and JVP, who stood for the complete abolition of the Executive Presidency, were not invited. As it turned out, this omission was significant and deliberate.

At the meeting, Opposition parties, including the Sri Lanka Freedom Party, of which President Sirisena had become the leader, strongly opposed the dilution of the President’s powers. Leader of the Opposition Nimal Siripala De Silva led the SLFP team. The Opposition was supported by the JHU, which was in the Government, and which had by that time taken a strong anti-Ranil stand. Prime Minister Wickremesinghe looked helpless, with less than fifty MPs supporting him in Parliament and the President not standing by his promises to the people. It was decided that the President should continue to be the Head of Government and would not act on the advice of the Prime Minister. The provision for Ministers and Deputy Ministers to be appointed on the advice of the Prime Minister survived.

The changes decided upon were incorporated in the Draft Bill which was approved by the Cabinet in the afternoon. The Bill was published in the Gazette on 16 March. By inadvertence, the provision that the Prime Minister would be the Head of the Cabinet had not been consequentially deleted. The Legal Draftsman made the Government aware of the inadvertence, and when the Bill was taken up in the Supreme Court, the Court was informed that a correction would be made in Parliament.

Supreme Court: President must ‘act’ or ‘decide’

The essence of the determination by the Supreme Court relating to executive power is found in the following dicta of the Court:

“Though Article 4 provides the form and manner of exercise of the sovereignty of the people, the ultimate act or decision of his executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field and others to whom to such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President. The President must be in a position to monitor or to give directions to others who derive authority from the President in relation to the exercise of his Executive power. (…) However, if there is no link between the President and the person exercising the Executive power, it may amount to a violation of [the] mandate given by the people to the President.”

According to the Court, an essential requirement for the avoidance of a referendum is that the President continues to be the head of the executive, and the ultimate ‘act or decision’ of his executive functions must be retained by him. The use of the word ‘or’ in the phrase ‘act or decision’ used by the Court needs to be emphasized. Thus, it suffices if the final act is that of the President, even if the decision is not his.

The Supreme Court stated that Article 42, which states that the Cabinet of Ministers is charged with the direction and control of the government of the Republic and is collectively responsible and answerable to Parliament, conclusively establishes that the President is not the sole repository of executive power under the Constitution. This has been emphasized by a seven-member Bench in Re the Nineteenth Amendment to the Constitution 2002 as well. Executive power should not be identified with the President and personalized and should be identified at all times as the power of the People, the Court held in that case.

It is of much significance that the Court did not find that proposed Article 43(2) required approval at a referendum: “The President shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers to be in charge of the Ministries so determined.” This is in line with the essence of the determination. The President continues to be the appointing authority and, as such, not removed from the appointing process. The act of appointing Ministers continues to be that of the President, although the decision is that of the Prime Minister. On the other hand, the clauses that provided that the Prime Minister shall determine the subjects and functions which are to be assigned to Ministers and may at any time change such assignment would require a referendum as the President would not be involved.

The Bill was amended in Parliament to avoid a referendum. The Opposition succeeded in deleting the provision that a court other than the Supreme Court would not have jurisdiction to issue an interim order in respect of disciplinary action taken against an MP who violates party discipline. The original proposal that the Constitutional Council would consist of the Speaker, Prime Minister, and Leader of the Opposition and seven members from outside Parliament was also changed to seven MPs and three outsiders.

(Next, Part II: Resolving the Contradictions in the 19th Amendment)

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Latest comments

  • 20
    2

    “…….Is going back to the 19th amendment sufficient?….”

    Not at all!!

    Before doing anything else, bring criminal laws defining any Buddhist monk engaging in any type of political activity a serious crime, breaching of which will result lifetime jail sentence.

    Otherwise nothing will work in this land!!

    • 8
      16

      Jayampathy, seems like you are a CIA agent to distract and divide Lanka with Bullshit Constitutional reform proposals!

      Sri Lanka is now in the Washington- IMF trap and the rupee has gone to 290. This tosh about a new constitution that you keep harping on for year, is a giant distraction from the fact that Sri Lanka is today a US colony, ruled by US citizens Goat and Basil Jarapasaa, who have sold off our assets including Kerawelapitiya power plant…

      Stuff you constitutional reform up and get on the road and protest American Weaponization of Religious and Ethnic Identity politics, the CIA and ISIS owned Easter attacks and the US citizens ruining this country or SHUT UP!

      • 8
        12

        Sri Lankan needs to look East and forget about the Fake Human Rights and Debt-trap economic development hypocracy of the West.

        Sri Lanka needs to dump the US Dollar and de-dollarize, NOT follow IMF dictats to devalue the Lankan Rupee and beggar our people to please the IMF. The Colombo stock market of the rich is going up and up now that the poor are beggared!
        Western Human rights is as as part of its corrupt economic system and WAR ECONOMY . US exports more weapons than the next 7 countries.. The US has printed Trillions, is the biggest debtor country on the planet and is asset stripping and colonizing the world.
        Sri Lanka needs to stop making underwear for the West and massaging European Tourists.

        • 5
          0

          Dinuk,
          Should I read some significance into your apparent interest in underwear and massaging tourists?
          Are you experiencing conjugal disfunction?

          • 3
            0

            old codger

            “Are you experiencing conjugal disfunction?”

            I have been looking for exactly the phrase “conjugal disfunction”.
            Thanks.

            • 2
              0

              Native,
              We must always be polite.

    • 2
      0

      Jit: Your opinion expressed, starting with: “Before doing anything……….jail sentence” looks, in my opinion, to be more sentimentalism than on logical reasoning. You also need: “any type of political activity” to be a “serious crime” engaged by “Buddhist Monk” and “breach of which will result in lifetime jail sentence”.

      I understand your frustrations but don’t you think that a country in formulating laws judicious considerations must be taken of social, cultural, and more importantly “Human Rights” factors. How do we give an interpretation to “Political Activity” and how can we “Define” its “Boundaries” within society to bring it within the legal system to “Impose” a “Jail Sentence” as and when violations are made?

      To make me understand better, I would say, in my opinion, every human being is a “Politician and a Political Activist” while living within the “Society”. Thank you.

      • 3
        0

        Simon, to answer your long comment, what did Gauthama Buddha preached his disciples? Did he advice his disciples to get involved with politics?? I don’t want a bloody yellow rober to teach me about politics!!! Why should Buddhist monks who bestow to attain arhath status at the time they get ordained end up in streets picketing, or even trying to show their muscle strength on others? What should be the prime objective of becoming a Buddhist monk? If the Sri Lankan yellow robed politicos can change their original course to suit the political wishes they hold (which should not be!!) then why should any layman worship them?? Why not they chuck the yellow robe and be clad in a shirt and a trouser and fight for their political ideologies??

        • 1
          0

          Jit: Thanks. In my opinion, Gauthama Buddha was the “GREATEST” and the most “DYNAMIC” politician we had. Even during Gauthama Buddha’s time, there were many in his own camp who roamed the cities and outskirts living life and preaching contrary to the great teachings. But with patience and great efforts, Gauthama Buddha managed to overcome all that and make such “Sangas” enlightened. That was the “FUNCTION” of “High Priests” of the “Damma” and not the “Rulers” dictate.

          You have an excellent proposition. Don’t “WORSHIP” and I add don’t “FOLLOW” those who do not live according to DAMMA. The problem can be solved without “Legislation”.

          • 3
            0

            “……….I add don’t “FOLLOW” those who do not live according to DAMMA. The problem can be solved without “Legislation”………….”

            Simon, wishful thinking!!
            If our people were such a wise, logical lot then we all wouldn’t be burning tons of midnight oil bashing this bloody Rajapaksha gang!

    • 5
      1

      Jit,
      I agree that going back to the 19th amendment is not sufficient and the constitution should be amended particularly the inclusion of Buddhism should be removed. Further, the complete devolution of power to the North East is a must. A strict standards is necessary for politicians and political parties.

    • 6
      1

      Very true. People in this country should break the silence and stand collectively against yellow pets that have now become easy cheap men being hidden behind sanga costume. Times have changed lot today so as the fake monks. 😉😉😉😉😉😉😉😉😉

    • 1
      1

      Jit,
      “Before doing anything else, bring criminal laws defining any Buddhist monk engaging in any type of political activity a serious crime,…”

      What about Catholic priests, Muslim Mullahs and Hindu Poosaris playing politics?

      • 4
        0

        They do not get involved with politics like the sangha in Sri Lanka. One rare exception is Malcolm Ranjith who openly supported Gota to become the President. Look what happened! He is now biting his own humble pie….

        • 2
          0

          Jit,
          Yes, Malcolm Ranjit was taken for a goodride. At least he’s realised it. The hamuduruwos haven’t.

          • 1
            0

            old codger

            “The hamuduruwos haven’t.”

            The hamuduruwos have been on self destructive mode.
            They are supposed be educating the masses, however they are on a ego trip.

          • 0
            1

            OC
            Malcolm R has a problem that no hamaduru has.

            • 0
              1

              He has to keep his flock with him while he changes course.

    • 1
      0

      Religious leaders should come together to one platform in order teach good from the bad, at least today. Peace is not in their dictionaries. Discrimination is in their voccabularies from the day one.
      .
      Themillion dollar question would be so called – self proclaimed religious leaders (monks, pastors, muslim religious leaders and hindu spiritual leaders) could separate the good from the bad so long they grew up in srilanka all along ?

      Rev. Malcom Ranjith being repeatedly caught by mlechcha Mahinda Rajapkashe clan, proved it not once serveral dozens of time, until he is compelled to go to vatican to ask for the help.
      :
      Look, it is a problem a of sinhala race… today it is clear than anytimes in the past.

  • 5
    1

    Ranil must take the full blame for the failure of the 19th Amendment because of the people he appointed to those posts. Further, he protected the crooks, especially of the Rajapakse family. If Ranil acted honestly today SL would be in a different position. Even today Ranil is aiding and abetting the political survival of the Rajapakse family as he does not want Sajith to become the next President/PM.

    • 1
      0

      Buddhist 1,
      .
      Not to defend anyone, but it was not RW, but POLONNARUWA donkey it started from the very first day on. Immediately after his election, what he did was, appointed his men giving them most powerful ministries remember ? Since then, until FCID iron lady was sacked, all what powerful decisions were made by Sirisena defending Rajapkashe family. Sorysena and Mahinda Rajapakshe will have to face it before they die now or later. These two highly corrupted men could do lot more if they were able to foresee. As is the case in today s context, not a premier but in accordance with 78 constitution, all final decisions are made by the president. Just to marginalize UNP and pave the way them to be autocratic, they did also everything. Not only UNP but also JVPrs were marginalized in 2019 PE and 2020 GE.
      Besides, as you would see it today, Sajith could be a hard working person, but his leadership is short of most important features. He doe snot seem to criticise Rajapakshes in public. Knowing that buddhist monks could pav ehim the way, he hangs on with them all along, leaving people s alarming issues aside as of today. I feel Harin Fernando is doing better than Sajith today. The young men are setting examples. Hirunika has proved her strengths waking up all by risking her life.

  • 3
    0

    Jayampathy,

    The 19A was formulated when the Yahapalana government was holding the power with Maithripala Srisena was the President and Ranil Wicramasinghe was the prime Minister.
    This context is important to understand the tug of war within the governing party. It was an immortal arrangement. Democracy and good governance were secondary in this power struggle.
    It was a patchwork to satisfy the different warring factions and how to compromise their individual agenda.
    This is the pitfall whenever a top down approach is attempted and the politicians play the leading role in drafting a constitution or amend a key provision in a constitution which is supposed to be a people’s constitution where people are supposed to be supreme and everything is done in the name of the sovereign people.
    The politicians and constitutional experts /lawyers should play only a marginal role and the civil society and the people should play the leading role.

  • 3
    0

    I am so fed of talking of Constitution making in our beloved country I pay no heed of it.
    .
    Let me go back to to my infant days!
    The Britishers enacted the 1933 Constitution of the Colebrooke-Cameron Commission.
    They enacted the next in 1947 for ‘us’.
    Not satisfied with it, ‘we’ enacted our own 1972 Constitution.
    Setting out to ‘outdo’ our own, we enacted another in 1978.
    The life span of our ‘own’ constitution was a mere 6 years.
    .
    My stand is simple.
    We are not ‘developed’ enough to respect a Constitution. Why make one!

  • 4
    0

    It was no secret that the UNP headed by the PM and the President MY3 derailed the whole spirit and the purpose of the “19A”. Yet, it must also be said that some achievements were made.

    First MY3 having “Pledged” at Vihara Maha Devi Park in the presence of Rev. Sobitha – the “Architect” of the “Yahapalanaya” to abolish the “Presidency” backstabbed everyone and surreptitiously derailed the whole purpose of the “19A’ and he received the support of the PM – Ranil W. This was evident from his action of “Deliberately” not inviting TNA and JVP for that meeting on 13 March. There was another proposal to deal with the MPs who vote in defiance of their own Party decisions. This was “Vetoed” on the objections raised by Dinesh Gunawardane. Next, unpardonable action on the part of Ranil W and MY3 was the composition of the “Constitutional Council”. Earlier it was to be composed of “Seven Civilians” but that was derailed and that outfit was made a mockery.

    With all that “19A” was a “Progressive” move and hope this present “DRACONIAN” “20A” would be abolished.

  • 1
    0

    What sufficiency is the author talking of? The first part of his set of articles, now read, is “legal history”. What now requires is the collective and cohesive action of all concerned towards a sensible decision-making process in getting out of the morass the country now is in. Do we have, amongst the principal personalities, say in politics, the ability to give a hearing to different points of view, particularly to ones which are psychologically disagreeable and reach a mature conclusion which has a wide consensus? NO! NO! Whether it is government or opposition today it is the same. It is “MY WAY or HIGHWAY”. That is the problem which was persisting in the country for quite some time. The result is the entire system is geared towards moronic and/or kleptocratic decision making. Constitutions do have an impact but the more important is the practice of human decency. Dr. Ambedkar, who spearheaded the Indian constitution, upon being congratulated for submitting a good draft of the constitution, said to the effect that what matters is the people who implement the constitution and not the constitution itself. In this late stage is unity visible amongst people’s representatives? Aiyo! NO!

  • 2
    4

    If Rajapakshes do not want to get rid of 13A and PCs imposed on Sinhala Buddhists which is a ‘White Elephant’ draining scarce resources and rejected by separatist Tamils there is no point in wasting tax payers’ money to come out with a new constitution.

    • 3
      0

      Eagle Dumbo Eye

      “If Rajapakshes do not want to get rid of 13A and PCs imposed ………………………..”

      Why don’t Rajapakses get rid of 13A since they were being voted in by Pure Sinhala/Buddhists, 6.9 Million of them and patriotic Sinhalam, majority of the majority.

  • 2
    4

    In a new constitution, top priority should be given to the aspirations of indigenous Sinhalayo and Vedda Eththo. An autonomous region should be given to Vedda Eththo to protect their cultural heritage because they are the only indigenous minority in Sinhale.

    • 2
      0

      Eagle Dumbo Eye


      “An autonomous region should be given to Vedda Eththo to protect their cultural heritage because they are the only indigenous minority in Sinhale.”

      Dumbo why is your sudden realisation that my people needed to be treated differently?

  • 2
    2

    Dinuk,
    “Sri Lankan needs to look East”
    You mean China??!!
    Although a very friendly country of SL, has been the ‘Cause of Concern’ of SL’s utter mess!!!
    Their avaricious inclination to finance projects (Road and Belt or “Belt” Poor Nations to ‘Roads of one’s Prosperity’ – Beijing ‘Silk Route’!!!
    Influencing enable Credit terms acceptance. No Return on investment (RoI) study/grace period??!!
    Hambantota port COMMERCIAL LOAN repayment by SLPA earnings from Colombo Port!!!
    If that’s smart lending, favouring SL, What is NOT??? Then why again???
    Add,
    1. Mattala Airport
    2. Weeraketiya or Sooriyawewa stadium
    3. Lotus Tower – in anticipation of the Pohottuwa symbol
    4. Nelum Pokuna
    5. Eo1 Express way
    6. Matara Hambantota Rail Project
    Living beyond means, enriching fortunes!!! Not a Scam?? Then what is??
    The poor peasants and workers of Sri Lankan to foot the bill!!!
    It is NOT justiciable??? Better than IMF!! NO.
    Just think, ‘why the family on “RETURN TO POWER 2019”, cancelled the JAICA soft (Japan is in the east too) Loan for the Metropolitan “Smart” Rail project’??
    Structured project progress assessment payments, and nothing, ‘Under the Bench’ than contractors.
    IMF will monitor progress of redemption process and may request pruning costs.
    Hopefully, helps understand situation.

    • 2
      3

      Ask the Argentinians about IMF.
      They have some good lessons to offer.
      Better
      Read John Perkins’ Confessions of an Economic Hit Man
      The book has since been updated to “the New Confessions of an Economic Hit Man”
      *
      IMF is perhaps Santa Claus except for the filthy rich.

  • 4
    1

    Forget amendments ……… that’s cart before the horse: if we can find a horse stupid enough to partner Basil …………. EE, remove the covers off ye horns …….

    People have to eat first …….. this guy explains in simple language the whole shebang …….. https://www.youtube.com/watch?v=aXjnXD-m7Lo

    Harsha and others should come with illustrations like this, to explain to the people in simple terms, what actually happened ….. …. so all the plebs out here can at least comprehend even a little of what has happened to them ……..

    The choice is stark for the people …….. either understand some basic economics ………. or remain blissfully ignorant …… and try to live on Rajapakses’ cooked-up “Sinhala-Buddhism” as the main meal ……….

    • 2
      4

      nimal fernando,
      “Harsha and others should come with illustrations like this, to explain to the people in simple terms, what actually happened…”
      —-
      Harsha is one of the guys who put footnotes. Did he do that to explain to the people in simple terms, what actually happened with ‘Bond Scam’?

      • 4
        1

        “footnotes”

        Clutching at straws, eh EE? :)) ……… desperate times in the bunker?

        Don’t despair ……… you, the ever loyal servant will be called upon to shoot Hitler and the family, pour gasoline and burn the bodies. Make sure to push Soma aside and grab all the glory for yourself ……. history will remember thee well ! :))


        Learn to hide your desperation ………….. if you had an ounce of intelligence you would keep your mouth shut! :))

        “Sinhala-Buddhism” rush in where Malay-Muslim Rajapakses fear to tread !!!

        Now, who is smarter; “Sinhala-Buddhists” or Malay-Muslims?

        With Einsteins like you tasked to guard “Sinhala-Buddhism” ………is it any wonder we are in this pickle?

      • 3
        0

        Eagle,
        “Did he do that to explain to the people in simple terms, what actually happened with ‘Bond Scam’?”
        You seem to know. Please do tell us?

  • 4
    2

    Hand over to India tottaly like Hong Kong to China.all these years since independence we are going backwards.

    • 3
      1

      Cugan. I could not agree with you more. Srilanka is connected symbiotically to India. We are all Indians but by name. It is not a case of going backwards but into the cesspit where the Singhalese rightfully belongs.

      • 2
        3

        H
        Nepal is culturally even closer to India. Ask a Nepali about joining India.
        If Bengal were to unite, which way will a united Bengal move?
        *
        “..the cesspit where the Singhalese rightfully belongs”
        If it is their cesspit let them decide for themselves.
        You may have rightly found yours.

        • 2
          0

          SJ. What I meant was; the Pearl of Asia is morphed to the Cesspit of Asia thanks to the Sinhalese Buddhist Royalty.

          • 0
            2

            h
            Call this country anything you choose to.
            But the present tragedy has a lot to do with the changes that started in 1978.
            Let us also not make excuses for foreign meddlers and those who encouraged it.

        • 3
          0

          SJ

          “Nepal is culturally even closer to India. Ask a Nepali about joining India.
          If Bengal were to unite, which way will a united Bengal move?”

          You are clearly able to see, read, hear with the help of Mao’s b***s.
          Bravo.

          • 0
            3

            Glass ball irritation I guess.
            Wash it one in a while.
            Never per into it.

            • 0
              3

              Never PEER into it.

    • 2
      4

      C,
      HK was seized from China by Imperial Britain and the New Territories had a 100 year lease agreement.
      When was this country last part of any other country?
      *
      See how India treats Kashmiris, Nagas ans Manipuris!

  • 2
    0

    SL does not need a President. We have had useless ‘waste of space’ President, DB, to ‘unfit for purpose’ slimy Sirisena, from autocratic JR to thugs like Premadasa & MR, much hyped but did nothing CBK to the current bull in the china shop, GR, all at the expense of the tax payer. What have all these self serving Presidents contributed to the country? After the smell of power, all those who pledged to get rid of the Presidency have become ardent supporters. The perks of this office; a multitude of bodyguards, a fleet of expensive security & back up vehicles, generous pensions, lifetime housing & staff, etc. etc are too much for a small country where a majority are living in poverty, the only rich being those who have plundered the country’s wealth or oligarchs. It is the average citizen who is paying for an incompetent & bloated govt. with (any) income tax or stealth taxes

    Governing a country is a privilege, not an inheritance, nor, lucrative employment. So lets have a capable, civic minded PM & competent Ministers, not a bunch of thugs & yobs, sucking up to an ego maniac in the high office.

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