1 December, 2020

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Shed All Bias And Prejudice, And Give Justice To The Chief Justice

By Chandra Kumarage –

Chandra Kumarage

Ministers Rajitha Senaratne and Wimal Weerawansa who were members of the PSC have taken unto themselves the campaign against the Chief Justice Shiranee Bandaranayake  whom they found guilty of three charges contained in the impeachment motion. The readers will remember that the CJ at the outset of the inquiry took up the objection inter alia that the two members of the Committee Rajitha Senaratne and Wimal Weerawansa are biased against her in that she was one of the members of two panels of the Supreme Court which dismissed two cases filed by the wife of the former and the latter himself respectively.

The objection had been overruled by the chairman of the PSC reportedly without consulting other members of the Committee and also without giving any reason for his decision which in itself is a violation principle of procedure established by law. The bias averred by the C.J. has now become highly manifest and visible considering the way how the two members themselves have taken upon the vehement attack on the integrity and the character of the CJ by their disparaging and derogatory remarks  using the state media at will with impunity. Out of nearly 230 MPS on the government side only these two members have been resorting to this illegal, unethical and unprecedented campaign. The way how the two carry it out unceasingly and vigorously proves the high degree of manifest bias harbours by them against the CJ which is tantamount to malice coupled with personal vengeance, solely  due to the decisions made by the CJ who was only one of the judges out of three of the Panel of judges of the Supreme Court who dispensed justice according to law.

One may not find it difficult to infer the kind of language that they might have used against and the attitude shown towards the CJ  who was arraigned before their domain of power, the PSC in parliament which manifestly had not, followed any rules of procedure or conduct, or afforded the equality of arms rights of fair trial to her. The derogatory and disparaging remarks and behaviour of these two ministers in their post inquiry scenario is similar to that of two judges in a case who found and accused guilty on the charges going out of the court house and starting an incessant campaign of vilifying and insulting the accused whom they found guilty. It is submitted that this illegal, unethical and immoral behaviour of these two Mnister members of the PSC are unacceptably in any civilised polity and violate all tenets and norms of  the law, justice, fair play and decency. This practice should be condemned and denounced by all reasonable and law abiding citizens. They must call upon the President of Sri Lanka who is the President of all people in Sri Lanka to prevent these vilification of  Shiranee Banadaranayake who is still the Chief Justice of Sri Lanka.

It is common knowledge that a person who has even the slightest personal bias against an individual should not sit in judgment over a dispute, case, a complaint or a matter in which such person is a respondent. Rules of natural justice require that the decision maker approaches the decision making with ‘fairness’. What is fair in relation to a particular case may differ. As pointed by Lord Steyn in Loyd v. McMohan [(1987) Ac 625], “ the rules of natural justice are not engraved in tablets of stone.” The first rule is that nobody may be a judge in his own case. Any person who makes a judicial decision that includes,  e,g, a decision of a public authority … must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified, even if no actual bias can be shown, i,e, it is not demonstrated that the interest has influenced the decision.”

The rules of natural justice also may require that they are given an oral hearing and that their request should not be rejected without giving reasons. We may be able to examine and object to the evidence when the decision is judicial in nature, like the dismissal of an official or punishment for improper conduct the rules of natural justice require a hearing and the person questioned must know the case against him.

It was reported in the print media the Chairman of the PSC Minister Anura Priyadarshana Yapa as saying that in the Impeachment inquiry of Neville Samarakoon CJ only one lawyer was allowed to represent him. One may find it difficult to believe as to whether the Minister who headed the Committee read the Report on the Impeachment of Neville Smarakoon C.J. or is  deliberately making statement which are not true to the public to justify their findings. It must be stated for the information of the general public that Mr. S..Nadesan Q.C. appeared with three more lawyers namely, N.S.A.Gunathillake, S.S.Ratnayake. and Mervyn Canage Ratne on behalf of  Neville Samarakoon C.J.

Minister Rajitha Senaratne has reportedly stated both in parliament and outside that no initiative had been taken by anyone who claim that the procedure adopted to impeach the CJ was wrong  to get the same rectified by  initiating necessary procedures or actions. It is evident again that the minister had not either read the Report of the Neville Samarkoon C.J. or is suppressing to the truth. The writer wishes to state that three members of the opposition representing the Committee, Sarath Muththetuwegama, Anura Bandaranaike and Dinesh Gunawardena, in the Neville Samarakoon Impeachment submitting a separate report unanimously requested the President of the country as follows, “The signatories to this statement while conceding that Mr. Nadesan’s argument have considerable cogency –are not in a position to come to a definite conclusion on this matter. We would urge the H.E., the President could refer this matter to the S.C. for an authoritative opinion thereon-under Article 129(1) of the Constitution.” (See Parliamentary Publications Series No.71 dated 13-12-1984, p.185)

The three members also made reference to the submissions made by Mr. Nadasen Q.C. on behalf of Neville Samarakoon C.J. with agreement, in their separate report as follows,  “The point made by Mr. Nadesan, was that in the context of a Constitution as that of our country, in which the separation of powers was jealously protected, the committee is seeking to go on with the inquiry as to whether or not Mr. Samarakoon was guity of “proved misbehaviour”, was violating the provisions of Article 4(c) of the Constitution which stipulates that except in matters concerning parliamentary privilege-the judicial powers of the people shall be exercised exclusively through courts.”(ibid)

Those three MPs stated therein further that “The signatories to this statement however feel strongly that the procedure that parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court Judge should be conducted by judges chosen by the Speaker from a panel appointed for the purpose. We the therefore urge the House to amend Standing order 78A accordingly.(ibid). Minister Rajitha Senaratne as well as other proponents of the correctness of the procedure adopted in impeaching incumbent Chief Justice might be well advised to consult Minister Dinesh Gunawardane, the present chief Government Whip cum Cabinet Minister of their government, the only surviving member of the three MPs who submitted that separate report  to the Speaker at the conclusion of the Neville Samarakoon impeachment inquiry, for his advice and guidance on this matter, provided  Minister Gunawardane has not forgotten the past.

It is also reported in the media that Minister Wimal Weerawansa as stating that the Chief Justice has shown bias by appointing judges to hear her own case. Any reasonable person other than an ignoramus is aware that a chief appoints a panel of judges to hear cases cannot influence them in their judgment. It must be stated in the same breadth that anyone and everyone with a modicum of knowledge were aware of the verdict of that seven members appointed to represent the governing coalition in the PSC inquiring the impeachment inquiry of the incumbent Chief Justice.

It must be reiterated that what should be done in the interest of justice is not to vilify the goodwill of the incumbent Chief Justice by making unwarranted, disparaging and derogatory statements with impunity using state power but to answer the only relevant question as to whether she was given a fair trial under the principles of natural law and justice, accepted principles of law and procedure to which other persons in the country are entitled to in their fullness  and totality.

Reference should be made in fairness to the beleaguered Chief Justice using this space to draw the attention of the general public of Sri Lanka to a feature written by a  gentleman who claims to be a f‘riend’ of the chief Justice.  He is none other than Professor Carlo Fonseka ‘an acclaimed member of the intelligentsia’ of the country. Having consumed about four fifth of his article on the ‘Techniques of Avoiding bias & the law using a technique called “Randomised Placebo-controlled double blind clinical trial on the use of drugs, by which process he says that even in the entirely material business of judging the efficacy of drugs it is necessary to avoid rigorously the inevitable bias and prejudice in eliminating the bias of doctors and patients on the efficacy of drugs. Having said that he jumps into a highly anticlimactic conclusion that “ the equivalent to of this procedure in judging a case would be for the judge not to know whose case he is judging and the client not knowing by whom he is being judged.” As this procedure is not practicable in cases he states that he advised his friend the Chief Justice to apply for leave of absence from the exalted office during the period that spouse’s case being investigated. He further opine that in his judgment her continuing in power at a time in such a situation would in his judgment constitutes a serious case of conflict of interest.

Firstly responding to his example of the it must be stated that cases have and never will be placebos. Every judge knows the cases that he will have to have to hear and every client knows the judge who will hear his case in advance. If a judge does not like to hear a given case he can give reasons and withdraw from same. Similarly if a client does not like a particular judge hearing his case he can give reasons for same and get his case transferred to be heard before another judge by making an application to the Court of Appeal under section 46(1) of the Judicature Act. The writer wishes to state that the learned professor had acted as the devil’s advocate of his friend by giving this advice if that advice was actually given by him. The country begs an answer from the erudite professor had he not been biased twice in writing this article, firstly, against the CJ, and secondly, in favour of the government which has sought to impeach the CJ because he is enjoying perks and favours from this government? The people of this may also wish to pose the question to the erudite professor as to what steps did he take as a member of the intelligentsia to prevent the former Chief Justice brazenly and shamelessly subverting the cause of justice and bringing the whole judicial system of Sri Lanka in to shame and disrepute by handpicking a judge to hear and conclude the divorce case in which he was a defendant in his favour in the absence of the plaintiff,  harbouring and protecting criminals. I am sure he was either silent or on the side of that delinquent Chief Justice who had the blessing and protection of then president who was his nephew’s wife.

It is also pertinent to ascertain from the professor who is so much concerned about bias and prejudice of judges against litigants as to why he did not use his influence and stature in society to request the government to give a fair trial under accepted laws and norms of fair trial and rules of  evidenece and procdure devoid of bias and prejudice. Dear professor may I say that, “ Your slip is showing.”

The answer given in unison inter alia by the esteemed and reverend Mahanayaka Theros of all Nikayas of Buddhism, His Highness the Cardinal of the Raman Catholic Church, most reverend, pontiffs of the other Christian Churches in Sri Lanka, high priests of the Hindu religion and the Islam faith in Sri Lanka including the Bar Association of Sri Lanka, all political parties the opposition, multitude of trade unions and civil society organisations in Sri Lanka and the governments inter alia of the USA, UK and the European Union, the United Nations Special Rapporteur on the Independence of the judiciary, the Secretariat of the Commonwealth  of Nations (of which Sri Lanka is a member), International Commission of Jurists (ICJ), International Bar Association(IBA) and Justice C.G. Weeramantry the doyen of Sri Lankan Judges(who was also the Vice President and Acting Chief Justice of the most  prestigious and august judicial tribunal in the world the International Court of Justice (ICJ) is that the Chief Justice Shiranee Bandaranayake has not been given a fair trial.  Their unanimous ‘request and plea’ to the authors of the impeachment motion are to withdraw IT and to give her a fair trial/inquiry under universally and nationally guaranteed laws, norms, and rules of evidence and procedure.

Nahi Verena Verani

K.D.C.Kumarage, Attorney at Law, Co-Convenor, Lawyers for Democracy

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Latest comments

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    Well said, Kumarage. Carlo Fonseka has shwn himself to lack any integrity. Maybe he is in need and so has to be dependent on the ruling powers for some portion of his bread. Carlo sings for his bread!

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    I call this PSC committee as “Lamborgini” and “Gangnam Style” Jokers PSC.

    The reason is when it comes to all other issues such as giving workers Rs.2500 increase as per Mahinda Chintana, or a solution to FUTA issue, Education, health, LLRC recommendations, finding white van murderers, museum robbery, disappearances of human right activists, and media personal, looking for culprits who try to murder Bar association members etc…etc…..the GOSL takes the path of a…. “TURTLE” walk………while when it came to CJ impeachment, everything from signing the motion by 117 upto submitting report to Speaker the Govt. went in a ….”LAMBORGINI” style race…. Why is this.

    This is the only case in the HISTORY OF THE WORLD EVER……where a case was generated, filed, herd and a verdict given for 14 CHARGES in a TWO MONTH period.

    Please let me know why should I not call theis a ‘LAMBORGINI’ verdict….or if you want me to call this a “TURTLE” verdict.

    During the impeachment motion brought against ex CJ N.D.M.Samarakoon… THE CASE WENT OVER 6 MONTHS JUST TO HEAR 1 (one) CHARGE….AND STILL COULD NOT ISSUE A VERDICT AND THE CASE WAS FINALLY DROPPED ALTHOUGH SUFFICIENT PROOF TO CHARGE WAS AVAILABLE.

    Please give me a valid reason…why I should not call this a LAMBORGINI GANGNAM STYLE PSC COURT…..OR A JOKERS PSC COURT….

    2) I mentioned “GANGNAM STYLE” was due to the fact that while mega billion Dollar losses are occuring on daily basis in the GOVT. such as Billion Dollar losses in CB hedging deal…..Greece Bonds, Petroleum Corporation losses, Sri Lankan, Mihin Losses, WB 2.6 Billion dollar borrowing etc…etc…
    While these huge Billion dollar Losses are occuring due to UNEDUCATED, STUPID, CHEATERS, AND CORRUPT GOVT. PERSONNEL BEEN EMPLOYED… and as a result it is the tax payers who suffers…..why GOVT going after a mere house sale bought with valid personal money by CJ’s sister.

    Also can anybody let us know what happened to Helping Hambantota Tsunami Money and other mega “China Man” illegal contracts awarded without proper tender procedures….or Land been leased without proper Parliament approvel and where Millions of Dollars Commission and Black Money involved…

    So other than calling this ‘GANGNAM STYLE’ what else I should call…..or it is to be called…..ever famous “BAILA RAJA”….. choice is yours.

    3)It is upto ex CJ Asoka Silva to prove that if he did or did not purchase TFC property, and CJ to prove if he purchased it.

    CJ is not that stupid to bring an issue if she cannot prove it. So let the REAL COURT decide on this issue.

    4) On any ground you should note that this TFC property was purchased by CJ’s SISTER…..and not CJ….even though there’s a case pending on it. So her Sister should be penalised for this transaction and CJ cannot be 100% charged on this sale.

    CJ was only a notary to this transaction,….. and part of the blame has also to be borne by TFC personnel for selling a property under investigation.

    5) Please ask from any real estate property company on Discounts….These discounts are part of real estate sales ….and they are responsible for it. Not CJ. Also calling for quottations and going market prises are Real estate companies business. Not SC ofr CJ. We will see the purchase figurs when the case re-opens.

    6) Regarding GKH 9000 depositors….and the whole Golden Key Fiasco is a Govt. Conspiracy.

    You may know that Hon. Lalith Kotalawela is a staunch UNP supporter and helped UNP immensley both in Monetary and administrative support.

    Meanwhile Hon.Lalith Kotalawela contributed Rajapakse Govt.also with monetary donations, but Govt. sharks wanted more and more pounds of flesh…..and finally made sure it collapse.

    Although Central Bank had many opportunities to rescue it like the way it keeps on pumping Millions of dollars to loss making Sri Lankan and Mihin Airways, CW games bid, Gold sale, Petroleum Corporation, Electricity Board, Buying property in N.Y. USA, Hedging and Greece Bonds, Acquire Shell Gas and Apollo Hospital etc…etc…I could write more…not enough time and space….why it did not come to rescue a well established company when the need arrived is questionable.

    So the Rajapakes made a plan to collapse the whole GKH empire….and due to this Both Investors and the depositors and L.Kotalawela and UNP and the GKH employees and the whole country suffered.
    CJ has all the information and records on this fiasco….and the truth will come out in coming months.

    It’s not only the 9000 odd depositors…but all the employers, their families, their executives, and the tax payers who suffered from this GOVT. CONSPIRACY.

    It is presumed that Govt. Rush to pay the 9000 depositors is a plan by the GOVT. VVIP’s to acquire GKH Properties with BLACK MONEY AND WITH THE 85 Billion rupee DIVINEGUMA BILL JACKPOT MONEY AT A LOWER PRICE.

    Therefore if all the 9000 odd depositors have little patience, all their deposits with interest could be settled by CJ.

    Everything will be revealed when the new case start hearing.
    Remember You know only the TIP OF THE ICEBERG AND MANY MORE MYSTERIES TO REVEAL IN COMING MONTHS.

    Also Mr.Kariyawasam’s involvement on TFC stock sale, the much bigger sharkes who were involved in the stock will be revealed once the trial begins.

    IT IS LIKE VIKILEAK’S REVEALING EVERYTHING.

    That’s the reason why both Wimal Weerawanse, Rajitha, Yapa, and the rest of the Govt. PSC and other crooks trying to give a wrong picture to public to hoodwink them, and to stop this case going to Court of Law, knowing the Govt. going to get defeated….and the 117 plus seven be impeached on fraudulent charges.

    Meanwhile both Opposition parties, trade unions, patriotic Clergy communities, Professionals and intellectual community and the general public should rally behind CJ, her lawyers, SC and Bar association to save our country from absolute thieves, thugs and state terrorists who destroy out society, economy and the country.

    Therefore please don’t rush to a conclution and try to nail the innocent or given the Judgment upfront, when the real and Big sharks are roaming freely who will be revealed to public in coming months.

    NOBODY IS GUILTY UNTIL PROVEN AND AS YOU SAY THE COUNTRY WILL SEE WHO ARE THE REAL CROCKS AND WHETHER THEY ARE…..THE..

    “BLACK COATED SHARKS”…….or….”THE WHITE COATED… WHITE SHIRT AND SARONG DRESSED” WOLVES IN SHEEP CLOTH.

    We could witness the truth in New Year 2013.

  • 0
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    Good reply to Carlo

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    I think Prof Carlo should first take his own placebo and resign from all his posts in the Govt before giving advice to friends.

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    Mr. Kumarage’s article is commendable. Nice to see educated gentlemen like you come forward and do not let politicians hoodwink the common people like us.

    Jayantha has added valuable comments.

    Leelaratne

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    The former CJ De Silva says that the legislative is the highest than the Judiciary and the members of the select committee could decide whether to appear at the supreme courts or not.It means that the MPs will have a choice merely for the reason that they are appointed to be members of the SC.The rule applicable to the ordinary citizens would not applicable to these MPs.

    It is true that Mimal and Rajitha are being launching serious attacks over CJ.Why Dilan is not much appearing in the state media to join this campaign.

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      DILAN QUIET,AFTER BUFFALOES TURNED ON HIM AT THE “VAP MAGULA” ONCE
      THEY KNEW ABOUT HIS “MULTI MAGULAS” EVEN BUFFALOES KNOW GOOD FROM BAD!!!!

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    Is Carlo such a stupid to use medical theories with court system. He is in senile decay. If one theory or practice can be applied to all fields then we should have only one research institution and all practices should adhere to such theory and practice. Carlo is singing for his supper, and will do anything and everything any government that provides him position that gives him perks and renumurations. No one should take him seriously.

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    Prof Carlo Fonseka is an educated stooge and none should reckon him as a man of worth today.Iam sure the country admires S.L.Gunasekera who said I support the government BUT NOT ON THIS issue.He in fact made a bold suggestion not to receive or accept anyone from within the judiciary or the BAR if he or she gets appointed as C.J.The likely persons are the stooges Mohan Peiris and the woman Anoma Gunatilleke wife of the schoolmate Jayantha Wickramaratne now a Bribery Commissioner.
    THE COUNTRY DESPERATELY NEED THE RESTORATION OF THE 17TH AMENDMENT AND THE CONSTITUITIONAL COUNCIL sadly destroyed by CBK objecting to J Dheeraratne claiming to be a UNP man. NOW THAT AUTOCRACY HAS BEEN SEEN IN FULL BLOOM LEADING TO A DYNASTIC DICTATORSHIP ALL SHOULD MAINTAIN THE SAME LEVEL OF VIGILANCE AND GET THE 17th AMENDMENT restored and two term lImit till the Presidential system is abolished.If Rajapakse loves this country he must use his purchased cronies to amend the constitution and behave like a statesmen having got a place in history.
    The country needs the rule of law and all equal before the law.

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    Carlo is not a scholar in the sense the word is to be used. He is a cunning fellow i have ever known, He will twist any thing to his advantage and his stooges. Un principles rowdy gentleman.

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    Professor Carlo Fonseka the all knowing pundit was assumed to be a mountain by many a Sri Lankan. But now they have found him to be a hollow anthill. An uncle of mine told me that he is a highly prejudiced man suffering from an inferiority complex. The late Prime Minister according to my uncle was the victim of his bias. When the UN Food and Agriculture Organisation (FAO) awarded the prestigious FAO award to her Fonseka went public showing his malicious attack on her stating inter alia that, she well nourished and enjoying all comforts in life while the people are suffering. But no sooner his nephew (with all due respect to Wijaya Kmaranatunga)married the PM’S daughter Chandrika, his biased attacked came to a halt. The readers will see what kind of opportunist this self acclaimed (erudite Scholar is.)
    Once again the same Uncle of mine who was a good Sama Samajist (unlike this pseudo Sama Samajist Carlo Fonseka) told me that, when the LSSP local was going to pass a resolution not to support Chandrika at the Second Presidential election as she failed and neglected to fulfil the principal promises made during her 1st term in office, Fonseka had stated that “All what you is true but How can I vote against the mother of Wijaya’s children? See what a political chameleon is this pseudo samasamajist.

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    I have just one question for Mr. Kumarage, How do you describe the independence of the judiciary? Is it do what ever you can do to save corrupted Judges? If you people are real gentlemen who always talk about good governance then reply to the questions raised by the PSC. We challenge all of the above who against the impeachment, answer the well proved facts that PSC has published. Don’t go around the issue and don’t try to fool the people

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    I heard Wimal Weerawanse is going to debate on TV about the CJ’s impeachment. Why he has been chosen to debate about this important topic to the country and people. Is he the smartest politician in the country? I would like to see his genuine CV not bogus. I urge the CT to publish his genuine CV. In fact I would like to see all politicians genuine CV. Most of the Tamils would have stayed away from the LTTE, if the Sri Lankan government published Prabhakaran’s CV in every newspaper. The Tamils always felt that they are smart, publishing Prabhakaran’s CV would have done considerable damage to their image and put them away from the LTTE. This tactic would have been a very cost effective method to undermine the LTTE.

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    this man has writes article,asking new fair trail but do this man knows ,she got many fair trail cost to public?she too get many chances in her life,coming to supreme court from back door,get repeatedly ,appointments to her husband while knowing that man is ac [Edited out].look this lady wrote many wrong judgment to cover-up wrong doing corrupted political leaders in the country.give more terms to president and go against the basic right of the people.this is the time for her to go home.we all knew no innocent man will get any fair trail in sri Lanka corrupted judiciary system.we do not believe any thinks will happen to judiciary system new man/lady will come as chief justice and carry out same corrupted judiciary system for years to come.attorneys are worry due to loss of credibility of entire system and their income.we have man from kelaniya to be next chief justice,by the way he too have PhD.

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    Jayanta…All what you said were true but I don’t understand when you address a rouge like Kotalawala Hon.Kotalawala. It was a Ponsy scheme that he carried out very well knowing he was using poor man’s money for his glory.He should be imprisoned or better hanged.why he is out on bail now?Why it take so long to sort this out.Poor retirees are dying.why the government now only interested in GK case.They are using the depositors to their benefits.why didn’t they see it for so long?All these idiots knows people in Sri Lnaka are opportunist and they make use of them.Civil society must get together and stand for the right and wrong without aprt politics and never allow any one to use them.

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      ari,

      I addressed Hon.Kotelawala was due to not on my own consent….but it was given to him by the Government. It was called Deshamanya…a special award given for people who helped country and it’s people. I only used it as still he carries it…..unlike Gen.Sarath fonseka where Govt. took all his medals.

      Yes. I agree that Mr.Kotelawala misappropriated peoples money due to over trusting his subordinates….but I still think this happened mostly due to political interference and I wrote about it before.

      In any given country specially with relating to real estate business….the Govt. could alway hold the property as collateral and could release funds against them, similar to FenniMae…or FreddieMac in USA.

      How come GOSL. keep pumping billions of rupees to continous loss making enterprises like Sri Lankan and Mihin Air, CPC, Electricity board,CTB,Railway,etc..etc…Why not Govt…liquidate them also…

      In coming months you will see the real culprits behind this scandal who not only made Golden key collapsed….but also purchased those property at lower cost.

      This is Sri Lanka Aishcharya.

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