By Harsha Gunasena –
Harsha Gunasena
President has appointed a new Cabinet of Ministers and there is a confusion over the defence portfolio. Daily FT reported on Saturday 23 November 2019 that soon after the swearing-in-ceremony, the list of names and portfolios given to each minister were released in which Prime Minister Mahinda Rajapaksa was named Defence Minister. However, this was retracted shortly, and it was announced that the Prime Minister has been given the portfolios other than Defence.
We will examine the constitutional provisions in this respect especially after the introduction of the nineteenth amendment to the constitution.
The President cannot hold any ministerial portfolio since the previous article 44(2), where the President could keep any number of portfolios with him, was repealed by the Nineteenth amendment to the constitution.
There are two transitional provisions consequent to the nineteenth amendment to the constitution. First one was that the incumbent President until the General Election 2015 may with the concurrence of the Prime Minister, assign to himself any subject or function and may, with like concurrence, determine the Ministries to be in his charge.
Second one was that the incumbent President so long as he holds the Office of President may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment and determine the Ministries to be in his charge for that purpose and accordingly, any reference in any written law to the Minister to whom such subject or function is assigned, shall be read and construed as a reference to the President.
These transitional provisions are for the former President and the present President cannot hold any Portfolio including Defence. If anyone argues that the President can hold the Defence Portfolio since he is the Commander in Chief of the armed forces and able to declare war and peace, it is not correct since the nineteenth amendment intentionally barred President holding any ministerial portfolio.
Article 4 where the sovereignty of the people was dealt with, specifies as follows in Sub Article 4b. “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People.”
Sunday Times reported on Sunday 24 November 2019 that Ali Sabry PC argued that Article 4 was not changed by the nineteenth amendment and hence the President can hold the defence Portfolio. If so it can also be argued based on the same Article that the President can hold all the Portfolios if he wishes since executive power should be exercised by him. Therefore, these are wrong arguments. We have seen the Supreme Court dismissed these types of arguments brought in, in defence of the illegal dismissal of the Prime Minister and illegal dissolution of the Parliament in October 2018.
At the swearing in ceremony the President declared as follows as required by the fourth schedule of the constitution.
“I Gotabaya Rajapaksa do solemnly declare and affirm that I will faithfully perform the duties and discharge the functions of the office of the President in accordance with the Constitution of the Democratic Socialist Republic of Sri Lanka and the law, and that I will be faithful to the Republic of Sri Lanka and that I will to the best of my ability uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka.”
In his address to the nation immediately after that, he said the following.
“Today I am meeting you as the executive President, Commander in Chief and the Minister of Defence, who is responsible of the defence of you and your children, of beloved motherland of all of us. “
Therefore, his intention was to keep the Ministry of Defence with him. This intention was against the provisions of the constitution. Soon after solemnly declared that he will faithfully perform the duties and discharge the functions of the office of the President in accordance with the Constitution, in his address to the nation he declared his intention to violate the constitution.
It is advisable to adhere to the constitution rather than bringing flimsy arguments to defend possible violations of the same. President’s intention is to create a disciplined nation. Adhering to the constitution should be the basis of any discipline. Therefore, it is the foremost duty of the advisors of the President such as Ali Sabry not to mislead him. All of them have mislead Maithripala Sirisena and Mahinda Rajapaksa in October 2018 bringing discredit to both. It is the duty of all of us to adhere to the constitution rather than trying to violate it.
chiv / November 25, 2019
Sir, our one and only constipation expert GLP (sorry constitution) thinks otherwise. May be Sabry and GLP attended the same class in low school.
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K.Anaga / November 26, 2019
Has the President’s citizenship problem been sorted out as per the Constitution?.
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Thondamany / November 25, 2019
Harsha Gunasena, why do you have to be sarcastic in your writing referring to the President as Gorabaya, unless you are one that emerge from the gutters?
You can criticise people but maintain your self respect.
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Harsha Gunasena / November 25, 2019
Thondamany
It was my mistake and requested the editor to correct it. I apologize for the same. Letters T and R are in side by side of the keyboard. I typed R instead of T mistakenly.
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Leonard / November 26, 2019
“I typed R instead of T mistakenly”
But be assured this the go to man for constitutional matters. No miss typing.
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Native Vedda / November 26, 2019
Thondamany
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“Harsha Gunasena, why do you have to be sarcastic in your writing referring to the President as Gorabaya, unless you are one that emerge from the gutters?”
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Harsha Gunasena is too kind to Horrorabhaya, the national hangman.
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Leonard / November 26, 2019
Native Vedda
As they say Native you must use to the term “take one to know one”. I refer to emerging from the gutter please tell us more about your experiences been in the gutter and specially coming out of it. They say you can take the man out of the gutter but can’t take the gutter out the man most of your comments proves that. And get use to the idea G.R. is the President yesterday and he will be tomorrow. Gotabaya Derange Syndrome going to be with you for lots more days to come.
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Native Vedda / November 26, 2019
Leonard
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I am sorry I am not educated like you in fact I am bit thick.
I am completely lost.
Therefore could you explain it in simple English.
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Did you mean you are looking forward to the next tsunami to clean and clear Gota and his Gotabaya Derange Syndrome? It’s a good idea.
Pray for it.
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Leonard / November 27, 2019
Native Vedda
“I am sorry I am not educated like you in fact I am bit thick.
I am completely lost.” your words
You said it no argument from my side.
“A Good Man Knows His Limitations” – Clint Eastwood.
“It’s a good idea.Pray for it.”
I humbly recommend you to read “God Dilution” by Richard Dawkins may help you to lose density in your thickness matter.
I put a thumbs up for your comment in agreement regarding “I am bit thick.”
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Leonard / November 27, 2019
Native Vedda
“I am not educated like you in fact I am bit thick”
Thank you for the clarification. I’ll remember in the future regrading your intellectual disadvantage’s.
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K.A. Sumanasekera / November 27, 2019
Dear Native,
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I thought Thondamany and Mr Gunasena settled it amicably.
Now why do you want to get your Knickers in a Knot.
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Poor Nandasena, survived not one, but at least half a dozen Law Suits , some of which would have put Nande behind Bars in many places, including Welikada .
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Although Nandesena would have preferred San Fran or Los Angles., instead of Geneva or Oslo because of too many of your supporters there.
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As Mr Gunasean has pointed out, Nandesena is still on shaky grounds in our own HC.
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You know how harsh our Judges are when it comes to our crooked Politicians in Pohottuwa.
I don;t have to tell you what Basil , Johnston, Wimale, Gnnanissara , and even that Elephant lover Monk went through, after Ranil Aiiya came to give us Yahapalanaya.
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So wouldn’t it be nice of you to give Nande a break , at least until the losers in the UNP take him to court again ?.
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And it won’t be too long as I hear from my Elders.
In fact Upul Jayasooriya PC warned Nande even before the Election.
Wonder where that other gun UNP Lawyer, who chaired the SLA and also cleared the Bank Robbers, now?..
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Native Vedda / November 28, 2019
KASmaalam
“So wouldn’t it be nice of you to give Nande a break , at least until the losers in the UNP take him to court again ?.”
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Nande has had 5 years of break after ten years relentlessly forcing the people to magically/involuntarily disappear from the face of the earth, looting VP’s fort knox, sniggering at ………………. He could have had his permanent break if he had chosen to go back to his motherland USA.
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Again Gota’s white van is out.
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By the way Single Handed Kamal has a lot of cleaning up to do in the North and East, a lot of students and victims’ family were out commemorating Mahaveerar day, (some people misinterpret it as VP’s birthday 26 November celebrations) defying Gota’s orders. The worse, Chennai Uni students too remembered LTTE’s fallen heroes.
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Now Gota has to get Kamal to punish the Chennai Uni students for defying Gota’s law. Does Kamal has the b***s to send his white vanning team to take care of Chennai vasies?
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Disappointed / November 25, 2019
Dear Sir, please let him.
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The country’s security will depend on your allowing him to act as Minister of defence.
Though you are a nobody, now that you have said he can’t, we are really disappointed.
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Ple……ase let him.
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Harsha Gunasena / November 26, 2019
Disappointed
Do not be disappointed. We are a democracy and we have to follow the democratic norm and rule of law. The President is the head of the Security Council which meets every week. He can give whatever the direction through that in respect of national securiry. He does not have to get involved in day to day activities of the Defence Ministry. I am sure he will not behave like the previous President in relation to affairs of national security. I think we as citizens should protect him from the people who are giving wrong advices.
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Native Vedda / November 26, 2019
Harsha Gunasena
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“We are a democracy and we have to follow the democratic norm and rule of law. “
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Could you define Democratic Norm in general and in the context of this island.
Does voting in periodic elections make this island a country with democratic norms?
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It is obvious some people have more rights and fewer obligation than others.
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K.A. Sumanasekera / November 27, 2019
Dear Native,
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Have you lost it , Mate.
After being such a loyal sucker to the Fathers of all Democrats in Lankawe, including Dr Ranil Mr Samapathar and Mr Abraham , now you want Gunasena to teach you Democracy..
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BTW, Was Mr Pirahaparan a Democrat.
Because all his loyals voted in the recent Election en block, to the best Democrats in the Land..
And nearly over rode the Democracy of 70 %.
Where in the World would you get that sort of Democracy. Mate?…
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Native Vedda / November 28, 2019
KASmaalam K.A. Sumanasekera
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“BTW, Was Mr Pirahaparan a Democrat.”
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He was.
He understood the importance of democracy, when he forced his Tamil voters to boycott the 2005 elections making Mahinda the hero of Madamulana.
Mahinda won by 180,786 votes thanks to VP, prize was Rs 180 million. In the ensuing years clan became one of richest families in this island.
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By the way what kind of services do you provide to the clan apart from carrying their b***s?
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Amarasiri / November 25, 2019
Dear Harsha Gunasena,
“Adhering to the constitution should be the basis of any discipline. Therefore, it is the foremost duty of the advisors of the President such as Ali Sabry not to mislead him. All of them have mislead Maithripala Sirisena and Mahinda Rajapaksa in October 2018 bringing discredit to both. It is the duty of all of us to adhere to the constitution rather than trying to violate it. “
Thanks for your clarification.
Ali Sabry, is Vichy Quisling Ali Sabry. Sirisena violated the constitution, and was prevented. Gotabaya is trying to violate again.It should be challenged.
The constitutions since independence granted the citizens rights freedom of religion etc. How many times have sections of the people violated those rights and the state failed to maintain law and order? What were the CAUSES of the Civil war and the attack by the Wahhabi Salafi Terrorists on Easter Sunday?
Para-Sinhala Para-“Buddhism”, that is a distortion of Buddhism and is an Insult to the Buddha, is violating the teachings of The Buddha, All the time.
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Eagle Eye / November 26, 2019
Para-Sinhala Para-“Buddhism”,
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Signs of a mental disorder.
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Amarasiri / November 27, 2019
Eagle Eye,
There was no mental disorders of the Paras with the first 6 kings starting from Vijays, until Para-Buddhism arrived and established the Monk hegemony, by owning 10 percent of the fertile lands.
Mental disorders stated with the monks, and now they run amok, and make the imbeciles repeat that too.
Has anybody got to Nirvana or Nibbana? Not yet, at least these is no evidence. They throw in confusing words like anatte,, no soul, condition etc.
Suckers for the past 2,300 years. The monks have a good time with the Dana’s, offerings, and the dead person is already oxidized by oxygen.
Still the living have to prostrate to the imbecile monks. What a farce, and the imbeciles can’t figure it out, just like the Sun rising from the East and setting in the West.
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rbh / November 25, 2019
Sunday Times reported on Sunday 24 November 2019 that Ali Sabry PC argued that Article 4 was not changed by the nineteenth amendment and hence the President can hold the defence Portfolio.///
No need to argue if it is not changed everybody can see it no one will ask question.
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Amarasiri / November 25, 2019
rbh.
When did the Vichy Quisling Ali Sabry become a constitutional expert? Let the constitutional experts at The Supreme Court decide.
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Craig / November 25, 2019
Whether he can or cannot must be publicly explained by somebody from the former yahapalana Govt since it was they who structured the 19th. All these jerks are now silent. Ranil’s deal-making is so bloody blatant that it stinks to the heavens and beyond. Will he have the gall to come out and state that our president was not a citizen of the USA when he gave in his nominations? Or that he was?
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Amarasiri / November 26, 2019
Craig,
It was the intention of the parliament, the elected representatives of the people, because of the excesses of the executive presidency, for the separation of powers, and keep the ministry of defense separate from the presidency, by the 19A.
What they did not do was the abolition of the executive presidency by 20A, tabled by the JVP.
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Lasantha Pethiyagoda / November 25, 2019
The prime minister, in assuming office at the ministry of finance reassured his staff that acts will be passed to protect them and not be hauled in front of the financial crimes investigation department (FCID) saying that they cannot work in fear of being hauled before the FCID. I thought that only people suspected of financial crimes are thus investigated. Indrajith Coomaraswamy has tendered his resignation from being governor of the central bank. Arjun mahendran is still at large in Singapore.
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D. P. / November 26, 2019
Lasantha,
MaRa’s PM post is not confirmed in the parliament yet. SLPP doesn’t have the majority to do that and therefore, the possibility exists that the parliament might appoint someone else! I made a suggestion to UNP to appoint AKD or Kumara Welgama as the new PM. Since MaRa’s side doesn’t have the majority, they won’t be able to pass any bill without the consent of the majority!
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sach / November 25, 2019
So who do you think, should hold the defence ministry portfolio? Should not it be the commander of the armed forces, the executive president who is directly elected by the people? This constitutional chicanery by NGOs to destabilise Lanka in the guise of “reducing presidential powers”, “democratic reforms” is what made way for Zahran and his crazy buffoons to bomb in Eastersunday 2019!
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Harsha Gunasena / November 26, 2019
Prime Minister is the best. Any other minister also can hold it. Reduction of the power of the President was a popular request in Sri Lanka for decades. It was approved by the Parliament and by the Supreme Court, not by the NGOs.
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sach / November 26, 2019
The 19 Amendment was designed by NGO persons. The commander of the forces who is directly elected by ppl should get the defence ministry post. That helped SL during her troubled times.
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D. P. / November 26, 2019
Sach,
Easter Bombing has nothing to do with the Ex presidency holding defense ministry. It has to do with the lack of an efficient intelligence organization. SL political never understood the importance of such an organization; instead, they believed in old-fashioned way of fighting wars with military.
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GoRa helped Zahran to lay the foundation of his Jihadism by keeping them on military pay roll. GoRa’s idea was to build a competing Muslim political power to weakened the power of SLMC, but Zahran had a different idea (GoRa also helped BBS with the hope of weakening JHU). These were also kind of secret activities but they had nothing whatsoever with national security. Rather, they were purely political, designed exclusively to strengthen his side.
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However, if MY 3 had a brain a size of a sparrow, he could easily have prevented the bombing. If that happened, Sajith could have won the election with a small margin. That is b’cos, had not for the bombing, the election campaign would have been on the character of GoRa; not the national security.
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Richmond Peiris / November 25, 2019
He is the executive president elected directly by the people. The general impression is that he should be able to act according to the mandate, specially with regard to national security. If the current 19th amendment bars him from exercising his powers I can assure you that the next parliamentary elections will be fought on that issue as well.
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Harsha Gunasena / November 26, 2019
Richmond Peiris
Thanks. That should be the democratic way to handle it. It should come through the Parliament.
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Harsha Gunasena / November 25, 2019
Thondamany
It was my mistake and requested the editor to correct it. I apologize for the same. Letters T and R are in side by side of the keyboard. I typed R instead of T mistakenly.
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sach / November 25, 2019
The Supreme court did not give any verdicts on the so called illegal dismissal of the PM. Infact the court case was withdrawn before the conclusion. The verdict was given in relation to the dismissal of the parliament!
PLEASE GET YOUR FACTS RIGHT!
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Harsha Gunasena / November 26, 2019
Sach
Thank you for pointing out that. Crux of the argument would not change by that.
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CondemnedLizaPriceless / November 25, 2019
Constitution does not matter because we have a war criminal president who is fit to be institutionalized at Angoda. He can order white vans by ordering “marrapun, marrapun, murrapun”. When questioned by journalists what happened to missing people, he refers to the “Army commander”. BTW, US citizen or any other citizen that is a head of state does not have the immunity of a sovereign state. Gotler is dying to be taken to the International Criminal Court and may very well end up like Slobodan Milošević or Omar Al-Bashir. Finally, the unrenounced US citizenship and unrevoked US passport might come handy to Gotler to seek refuge in the USA for one last time as the rogue USA rogue state is not a signitory to the ICC.
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Harsha Gunasena / November 26, 2019
I appreciate if you can refrain from insulting the President. He is the President of all of us. We can criticize him since it is our democratic right, but we should not insult him.
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Karthigesu M Nirmalan-Nathan / November 25, 2019
The constitution is there as a decoration, and it was never followed in my lifetime. The prime ministers and presidents never once made the Tamils feel like the citizens of Sri Lanka. They never once appealed for calm during communal riots. All of them were AWOL when the minority Tamils needed them. We can’t even sing the national anthem in Tamil.
How many times Did the Megalomaniac Rajapaksa tinker with the Constitution?
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Harsha Gunasena / November 26, 2019
Agree. Our constitution in the past was violated by the Executive, Legislature and the Judiciary. Therefore we should try our best to prevent further violations.
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JD / November 25, 2019
Harasha Gunawardana: Who wrote the 19th amendment. Is it Jayampathi wicramarathne and Sumanthiran?
One newly appointed minister intends to advertise a full page in a friendly major Daily to say that his fleet of cars available for LEasing. His wife’s leasing agency will handle all the paper work.
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n bandara / November 26, 2019
Yes he can. Don’t forget he is a Rajapassa. They can break the constitution and even without going to the highest court they will be cleared. Then ………The
next available white van will be called in to pickup the one who complained.
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Saman / November 26, 2019
Gotabaya can hold anything he wants.
No matter what the constitution says or emphasizes there.
If one knows about who the Gatabaya is…. no any question about anything.
As a defense secretary he id many things without anyone’s advice or instruction.
No he is the EXECUTIVE PRESIDENT of Sri Lanka.
Do not talk nonsense…
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justice / November 26, 2019
The mausoleum case in which both brothers – if not all – attempt to plunder state funds to construct a mausoleum for their father, is still pending.
Will the case be allowed to proceed?
If not, why?
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K.A. Sumanasekera / November 26, 2019
Is Mr Gunasena a PC??.
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Anyway Ali Sabry has been proven right again .
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As a gun PC, Ali wouldn’t have backed Nandasena even if there was a smidgen of evidence that a Prez Nandasena can be rolled by the losers UNP , Diaspora and Abraham using that Citizen Argument in the HC..
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So I am more inclined to buy Ali’s take on the 4th Clause , despite Gunasean’s argy bargy about this Defense Minister thing..
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Harsha Gunasena / November 26, 2019
I am not a PC.
Sarath N Silva, former Chief Justice, G.L.Peiris former Professor of Law at University of Colombo and Wijayadasa Rajapaksa PC former President of Bar Association of Sri Lanka were proved wrong by the Supreme Court by the judgement of October 2018 incidents.
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K.A. Sumanasekera / November 27, 2019
Did some say Law is an Ass..
Dr Peiris and Sarath Silva must have learned the craft from different Text Books ,I guess.
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This HC Dudes can have different interpretations . Can’t they ?.
Specially when they translate our First Language in to theirs ..
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That Jayahama boy was sentenced to only 12 years by the Judge who heard everything first hand.
HC Dudes then cancelled the 12 years and gave the poor bugger Death Sentence .
Any way he served 15 years I am told.
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Poor Ali Buttho in Pakistan was hung although, he was no where near the murderers or the murdered.
And he was the President who had the powers to appoint those Judges,
At least they should have had some mecy and given the old fella at least 25 years.
And he would have been no good after that anyway..
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Now our new President would have been behind bars too, if not for that good UNP Minister who was in charge of the Attorney General .
Because two UNP heavy Ministers under Dr Ranil were pushing the AG to send Nandasena to not the normal HC.
But the express Court which Dr Ranil built and staffed as part of his Yahapalana Justice.
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Thank Heavens it is all history now…
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Richmond Peiris / November 27, 2019
We respect the SC judgement; but it can be wrong too?
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Ranjith Gunawaradana / November 26, 2019
Is this writer is expert on Constitutional Lawyer of Lanka?
How can he says that President of Democratic Republic Sri Lanka that cannot become Minster of Defense?
His all arguments are reservation for interpretation….by that his intention is to misled millions of masses and citizens of island.
All his facts are illogical, these groundless charges are politically motivated of that Deference Minster has created of that by UNP dealership!!@ .
Weaken defense and Democratic of that political programmed by UNP +TNA+JVP, Muslim Congress and Rashied Budaideen of orientated political aim of that misled citizens Sri lanka.
Writer against Unitary State of Sri lanka. He is promoted that weak country that nation without security of an island.
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Harsha Gunasena / November 26, 2019
Thanks. Please counter argue and please write to the point.
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chiv / November 26, 2019
Usually CID keeps a watch out for criminals. In “Sorry Lanka” the CID (that too whole department) is put on “wanted/watch list”. We are truly blessed. Are we ??????
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Kumar Silva / November 26, 2019
You talk of defence. A new boss has been named
there. Do you know that he stands charged in
a court of law for detaining students at of Royal
Institute at Nugegoda to punish them for their
parents not paying their fees to the school.
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Seddevi Soranathota / November 26, 2019
Mr Gunasena,
You are right. Keep writing my dearest (darling) son.
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Dave de Alwis / November 26, 2019
Anyway 19th Amendment to be abolished soon.
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Harsha Gunasena / November 26, 2019
Fine. Until such time we should follow it.
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Anoosh / November 26, 2019
Then “Pala Sena” held this post under UNF.
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DM / November 26, 2019
How do you know for sure he cannot hold the defence portfolio? I guess it’s not that simple to interpret the constitution as you referring to it. With the 19th amendment our constitution is a mess, one part contradicting another. Only the SC can deliver a view point that would make a legally acceptable standpoint. In this respect I think for you to comment on this matter is not ethical as it can shape the average readers view point. Even if you are a legally qualified constitutional expert, yet you have to leave it in the hands of SC, given the bad shape of our constitution.
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Harsha Gunasena / November 26, 2019
I do not think. I have exercised my democratic right.
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kali / November 26, 2019
President Cannot Hold The Defence Portfolio
***
Why not he is the King of the Jungle and bout to be tamed by Mr.Modi. All the election Rhetoric has ceased and reality has sunk in. He has changed his tune as follows.
1) I will not do anything to Harm India . How can a “Kosu” harm an elephant. He will not able or allowed to harm
2) He says Leasing of Hambanthotta to China was the fault of the Jaffna ( Yalpana) Government. What is he talking about. It was him his Brothers King Mahintha and Sir Basil who were the architects of leasing out large Chunks of Land to China threatening the very existence of India who was forced to take action to reverse.
Gotha there is more to come. COMPLY or DIE
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Real Revolutionist / November 26, 2019
Harsha Gunasena
Nonsense
The new president is powerful enough to enjoy ruling power on every ministry with or without that portfolio.
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ajith / November 26, 2019
Rajapakse family took almost 90% of the ministerial ownership and they think whatever they say is the constitution because people have given them permission. Whether Gota or Mahinda what is the difference until they fight each other.
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JD / November 27, 2019
15th amendment, 18th and 19th amendments are all constitutional frauds written for the benefits of the incumbent politicians.
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Thanga / November 28, 2019
Defence, Law and Order are Ministries assigned to PM Mahinda Rajapaksa, How come President Gotabaya is giving orders to Police /Army to sweep the roads? Has he got the authority to give police powers to the Army? For the government, only Gotabaya is batting solo and others are simply watching from the Pavillion.
There are 16 Ministers, but Gotabaya has appointed 35 State Ministers. That means more than half the number of SLPP MPs are full or half Ministers! The number may go up to 70-80 when non-government Ministers/ Deputy Ministers are appointed. Already 3 Rajapaksas are in the cabinet! It is rule by Rajapajsas for the Rajapaksas and by the Rajapaksas!
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