17 October, 2021

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Sri Lanka – Separation Of Powers & Rule Of Law Misunderstood!

By Asoka Seneviratne

Asoka Seneviratne

The essence of civilized living is the rule of law. A pre requisite for a good democracy and a prosperous society is the rule of law. Rule of law calls for equal justice under the law for all citizens immaterial of social, political and economic status. This also calls total independence of the criminal justice system. In other words when there is likely case of laws being violated, law enforcement – the police – should kick into action on its own. On its own is the key here. That is the constitutional obligation they signed up for. They do not need to, or wait for orders from the political establishment. That negates the separation of powers.

Remember in our constitution, judiciary is supposed to be a co-equal branch of the government.

I will give you a simple example. The big story going around in SL today is the stashing away of millions of dollars in an offshore tax shelter by the husband of a former minister who is also a relative of all powerful Rajapaksa family. Naturally in a poor country like SL, when one person hides such massive wealth, suspicions arise as to where this wealth came from. Especially so because this guy spent a lot of time in our corridors of power, including accompanying Ranil to Rajapaksa in 2015 when MR lost the elections. So in this case, it is the sworn duty of SL police – CID- to investigate if any laws were broken. This should have absolutely nothing to do with the president, prime minister or the parliament. This is 100% a police matter, plain and simple. That is the only purpose we have a police force who have taken an oath to our constitution to preserve and protect.

Also there was the high profile case of a low-life state minister walking intoxicated into the main prison with an apparent girlfriend and buddies and threatening an inmate at gun point. The police should have sprung into action on its own, investigated and prosecuted. Instead the educated/uneducated minister of justice quipped “nobody filed a complaint”. How laughable?

My question to the minister with a PhD is simply this. If there was a murder on the street and it was all over the media, will police not investigate unless somebody complained? Gimme A Break!

Now there is talk of yet another commission to investigate the Pandora stash. Why the need for a special commission? Is it once again to whitewash the issue and fool the public and hide the truth? Why does the government not allow the CID to do its job? What are they scared of? The CID should be all over this day and night to see if any laws have been broken. If any politician of any level try influence of hinder the police that should be exposed on the media and investigated too. That too is a violation of the law. That is true Democracy. That is how we ensure equal justice under the law. That is also how people built trust in the criminal justice system and the leadership.

Time and again, even in parliament, we hear even members asking the President to ensure criminals are punished. Even most Lankans think and want the president to punish criminals. This is such a blatantly incorrect or even foolish belief. It is definitely not the job of the president to enforce the law. The only job of the President is to manage the country within the framework of existing laws and leave the law enforcement to the police and courts.

Today I read that Gota has instructed minister of Justice to investigate the Sathosa garlic fraud. This is a disgrace. The CID – police – should have sprung into action the moment this news broke. If any, the President should ask the minister to explain why the CID has not started any investigation yet and demand a date to complete the investigation. What else do we need to have a minister for other than to see that criminal justice system functions the way the constitution calls for?

But and it is a big but! Separation of powers on our constitution is a myth that was conveniently high jacked by the 20th Amendment and even before. This goes to show the sheer stupidity of our constitution. White it boasts of separation of powers and independent criminal justice system on one hand, it is taken away on the other hand by the power the executive branch and or politicos have over the police or even the judiciary. This is an open secret.

This is also why, 72 years after independence and several versions of our constitution, we have hardly any politicos or their henchmen mega thieves not even indicted to the fullest, let alone jailed to the fullest. Both parties have tried to present a picture of true justice but once again this is a huge farce. But general public knows full well corruption is an everyday thing that since JRJ’s 78 constitution and hit the high ceiling in the last decade! But only a minion criminal with a 2oz of dope will go to jail and even shamed on live national TV. Aren’t we really a nation taken on a big ride by so called leaders?

20th Amendment gave the power of appointments and promotions of judges back to the president thereby bringing judges’ president’s control. Similarly, the chief law enforcement officer – IGP- is also under the control of the President. Both these facts clearly demonstrate that the so called separation of powers between the president and criminal justice system is hoaxes that only remain on paper.

Now those who voted for 20th A should be held directly responsible for enabling this madness. Perhaps a goof 50% of them had no clue about separation of powers or the rule of law. That is also why pre-1948, Brits were not sure if as a nation, we understood democracy and were able to manage and preserve it.

Nah… We screwed up big and now we lick our wounds! Both major political parties are 100% guilty of ruining our nation.

Not only our criminal justice system but also our Civil service/state owned corporations should be totally independent. No politico should be allowed to get near these vital institutions seeking favors or influence. That is also the reason behind them wearing while dress back in the day; a depiction of purity and adherence to rules and laws only.

Yes appointments need to be made by politicians (people’s reps) but after that they need to be left alone to their job. They are expected to be pro’s if appointed right (20th A killed this too) and not the brother, sister, aunt, uncle, mistress’s brother, or brother in law of politicians! Haven’t we witnessed enough of these dastardly two legged animals ruining our institutions while amassing massive wealth that actually belong to the people?

Finally Gota and his government have a slim chance to win back some self-respect. He can put the immense power he campaigned for and got, the 20th A, and the more recent emergency power to good use. He needs to appoint a special court headed only by most respected retired judges and have open hearings live broadcast on media. Let all these rogues in white dress answer tough questions on live TV. Let the chips fall where they may! On the other hand, if he fails to do so, he and his team also automatically become accessory to all these massive thefts of our nation’s wealth. But I am sure I am day dreaming!

So under the 20th A and now with Emergency Rule, now our so called Democracy truly depicts a famous Sri Lankan proverb. Naduth Hamuduruwange and Baduth Hamuduruwange, essentially meaning the thief and the judge are both the same!! Go figure Viyathmaga!!

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  • 41
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    Sri Lanka is a country ruled by fools voted in by fools. What else can we expect? Openly the Speaker of the Parliament violates the constitution, but nothing happens as the MPs only shout about it for a day then they remain quiet. Similarly, the President pardons murderers and the AG withdraws cases against murderers of innocent civilians, there are no mass protests. Lohan walks into Prisons with friends and holds his gun against the head of imprisoned, no one, not even the Buddhist monks or any other religious leader makes any noise. When people have no food to eat or money to buy ever-increasing priced food and at the same time numerous Army and Police officers are promoted with increased salary and benefits, there is no noise from anyone including the opposition. Appropriation bill allocates a major portion, that too higher than the allocation for education towards armed forces expenses, no trade union comes out in protest. Buddhist monks spew out venomous racial statements, no action was taken under PTA against them. Latest they are finding bombs in hospitals and Buddhist temples, maybe to detonate another bomb so that “Rata Rakina Viruwa” can instill fear in the civilians and win the local government elections.

    • 19
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      In the wake of Pandora Papers disclosures, social media posted a speech made by SLPP Polonnaruwa District MP Maihripala Sirisena, in his capacity as the President. Sirisena dealt with the Gin-Nilwala project. What Sirisena, who contested the last general election in Aug 2015 on the SLPP ticket, said was astonishing. The government transferred Rs 1,000 mn to a Chinese company in 2012 for the implementation of the Gin-Nilwala project and another Rs 3,012 mn on January 7, 2015 to thereby bringing the total amount paid to Rs 4,012 mn. Sirisena questioned how such a transfer could have taken place on the day before the presidential election? Who authorised such a transfer and why absolutely no work was done regardless of the payments. Lawmaker Sirisena owed an explanation during his five-year tenure as President what he did to investigate the Gin-Nilwala project. Perhaps, the Gin-Nilwala link disclosed by Pandora Papers, if properly investigated, can cause such devastation to the current political setup, the public can consider putting up a monument to ICIJ. The reference to money received by Nadesan from the Chinese company given the Gin-Nilwala project amounted to USD 5.9 mn. Dissanayake told The Island that the account that had received USD 5.9 mn was a Hong Kong account.
      https://island.lk/gin-nilwala-rip-off-and-culpability-of-parliament/

      • 8
        0

        https://digitalhayat.in/2021/08/16/when-taliban-killed-afghan-president-mohammad-najibullah-and-hanged-him-from-a-traffic-light-pole/

        Fate of Mahinda, Gota, Basil, Namal, …………. EE, Soma …………..

        Native Vedda in the foreground with the rocket launcher ………..

        • 2
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          https://www.youtube.com/watch?v=6CTcMWCP5VU


          Listen to this …….. no one is blaming the Rajapakses …….. they are blaming the ministers! ……… And asking Gota to save them ………. little realising the ministers have nothing to do with it …… what is happening in the country is the Rajapakse-family’s will …….

          People are still in love with an illusion: the Rajapakse BS ……… the only way the country will recover …….. if these idiots die of hunger and reduce Rajapakse voter-base ……..

          The mind of a peaceful pacifist like me ……… is gradually turning to violence ……… any pacifist out there now understand why the Sinhala-youth and Tamils took up arms?

          Native, what’s your weapon of choice ……. AK47, M16, Uzi?

        • 2
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          nimal fernando

          “Native Vedda in the foreground with the rocket launcher ………..”

          You are getting old.
          You need a good magnificent glass.
          It was not me. Without fail I have bath twice a day in the stream near my hut.

        • 3
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          nimal fernando

          Are you into “cryptocurrency”, Bitcoin (BTC) mining?

          Recently all cryptocurrencies have crashed and lost many billions ($188) after announcement of China’s central bank that crypto transactions are now illegal.

          Don’t gamble.
          Ajith Nivard Cabraal and his Finance Minister are going ahead with Bitcoin mining. Do you think both understand what cryptocurrency is all about?

          When you get your commissions from various deals (including Garlic) remember to receive them in hard currencies, not in Bitcoins.

          One day you will remember to thank me.

          • 0
            0

            Native,

            “Are you into “cryptocurrency”, Bitcoin”

            No. Not as an investment.

            Bitcoin was useful for the Chinese to get their money out of China.

            Cryptocurrency would be a better bet to hold one’s wealth than the SL rupee. The US inflation is kicking-in in a big way, they would have to lift the interest rate …….. the $ will go even higher. https://ycharts.com/indicators/us_inflation_rate

            “Ajith Nivard Cabraal and his Finance Minister are going ahead with Bitcoin mining.”

            Cabraal is an idiot/crook with a little knowledge ……… but in the land of the blind the one-eyed man is king ……….

            His cousin was at U of MD ….. had left when I went ……. unlike this prick he was a very decent bloke …….

        • 0
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          nimal fernando,
          I know that I don’t have much to live for … but, that doesn’t mean that I want die of nightmares. Spare me the gory sites!

          • 0
            0

            It is out of sheer fright that the word ‘to’ got missed in my sentence. Sorry!.

          • 0
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            Nathan,

            “Spare me the gory sites!”


            This is what we humans/apes do to one another ……… should have the stomach to look ……. cant bury the head in the sand and pretend we don’t see. :))

            Now he’s the president …….. no one wants to talk about Gota’s serial-killings …… we create our own reality …….. a reality we can be comfortable with …….

            • 0
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              nimal fernando,
              I wanted the truth got pulled out. See, my method of extraction is pain-free!

    • 17
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      It is high time, to hang Rajapakshes and FAKE Monks by their balls – by bringing to GALLE FACE GREEN – (no clue if the place is already sold out ???). in order to comfort the 6.9 millions of PINGONAs and 8 millions that stood vehimently against Rajapakshe criminals
      It is high time, to hang Rajapakshes and FAKE Monks by their balls – by bringing to GALLE FACE GREEN – (no clue if the place is already sold out ???). in order to comfort the 6.9 millions of PINGONAs and 8 millions that stood vehimently against Rajapakshe criminals.
      It is high time, to hang Rajapakshes and FAKE Monks by their balls – by bringing to GALLE FACE GREEN – (no clue if the place is already sold out ???). in order to comfort the 6.9 millions of PINGONAs and 8 millions that stood vehimently against Rajapakshe criminals.
      It is high time, to hang Rajapakshes and FAKE Monks by their balls – by bringing to GALLE FACE GREEN – (no clue if the place is already sold out ???). in order to comfort the 6.9 millions of PINGONAs and 8 millions that stood vehimently against Rajapakshe criminals.
      SADUsadu effect is highly infectious than Covid viral infection.🐃🐕😡🐃🐕😡🐃😡🐕😡🐕🐃😡🐕🐃😡😉😉😉😉😉SADUsadu effect is highly infectious than Covid viral infection.🐃🐕😡🐃🐕😡🐃😡🐕😡🐕🐃😡🐕🐃😡😉😉😉😉😉SADUsadu effect is highly infectious than Covid viral infection.🐃🐕😡🐃🐕😡🐃😡🐕😡🐕🐃😡🐕🐃😡😉😉😉😉😉
      .

    • 0
      5

      This comment was removed by a moderator because it didn’t abide by our Comment policy.

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  • 26
    2

    Asoka , Viyathmaga is nothing but a bunch of corrupted self claimed experts and a few educated Rajapaksa cronies. They are so good coining such catchy words. AG withdrew the case’s against Vasantha K. Today CID/ TID are to harass honest people. Judiciary is like a puppet controlled by Rajapaksas. Nadesan is appointing his own commission. Bandula . G demands CID to investigate food scams during MS / RW time not the Garlic which he admitted in parliament. Lanka has more chances of winning T 20 world cup than Rajapaksas earning self respect which they never had.

    • 23
      2

      Asoka, Gotha who ordered inquiry for public consumption actually send white van to pick ex CAA director who blew whistle on recent garlic scam. He told media there were many such scams before with sugar, dhal and others but they were not able to catch redhand because insiders were providing information so that they could destroy all evidence. The last raid was a surprise with no warning and they found altered ledgers and account books which were about to be destroyed by those ware house hoarders.

  • 21
    1

    Justice is begged from a man who ran/runs away from Justice!

  • 13
    0

    ….”Not only our criminal justice system but also our Civil service/state owned corporations should be totally independent.”……
    Fully agree but then you say – …” Yes appointments need to be made by politicians (people’s reps)”….
    I beg to disagree on the latter. The whole civil administration began collapsing with the creation of the Administrative Service replacing the Ceylon Civil Service. This is one of the main reasons for the collapse of our systems, among a host of others.
    Only about six or in some years MUCH LESS, depending on the VACANCIES, out of a very large number of applicants were selected into the Cadet grade by OPEN competitive examination from graduates with FIRST CLASS honours degrees, between the ages of 22 and 24 with the rare exception made (for age only) for those with war time service following the world wars. There was a fixed cadre.
    This ensured that the top administrative positions during the colonial-era and top non-elected government positions in the post-independence era were held by the best available candidates who were well trained and experienced. This was very important since the appointments were permanent.
    Politicos should not make appointments. See the surfeit of ministries from batik to growing pepper, having a plethora of overlapping functions, having all sorts of officials of his/her own.
    …contd…..

    • 13
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      ….contd…..
      But now a malfunctioning bureaucracy beholden to a politico – even without proper civil administrative experience, is thrust as a Secretary to a Ministry.
      We see the politicos are administering everything, hence the chaos. All well run countries have a permanent civil service devoid of politics.
      When a Minister told his PermSec – “you disagree with me” – I recall a friend of mine from the CCS saying in the late ‘60s, “But Minister, my duty is also to advise you of what lies behind you on the wall, which you cannot see”. The Minister understood.
      Such a reply will never arise now, because the uneducated politico will never understand and the officers are totally subservient.

      • 15
        0

        If there was an educated Secretary who had experience, he will not allow the Minister to blunder by saying :
        ……..‘The first consignment of “organic” potassium fertilizer’……..
        Muriate of potash is manufactured through refining techniques. Flotation and crystallisation are two processes used for the purification of KCl from potash ores mined in Canada Germany Belarus in Russia. It is not “organic” but chemical based.
        Further, studies had indicated that the high level of potash in foods and drinking water could be detrimental to human health. The researchers noted that as the concentration of potash increased, it became more severe on the kidney.
        But it is an ESSENTIAL electrolyte – the NORMALl range for potassium is 3.5 to 5.0 mmol/L.
        So much for the Chemical Vs Organic Fertilizer debate of this govt.

  • 23
    0

    Asoka Seneviratne is furious for the right reasons!

  • 19
    0

    Srilanka-
    Separation of Powers and Rule of Law Hijacked……
    This would have been a more appropriate title to this fine essay.

    Hijacker: 20th Amendment.
    Facilitator: Viyathmaga.

  • 16
    0

    Dear AS,
    Thanks for your analysis.
    .
    “Even most Lankans think and want the president to punish criminals. This is such a blatantly incorrect or even foolish belief’.
    .
    No wonder u and I were forced to watch on screens how incumbent speaker( behaviour similar to ” poli mudalali” of that commedy program Kopikade) himself, minister of health, and state ministers licked ” a concoction just mixed by a kaliamma controlled mental sick patient ” displaying it from all powerful body a country which is the parliament. .
    .
    And minister of health threw a pot filled with “pirith chanted water” in to river branches in all public instead of taking timely actions against the containment of the virus from its spread. .
    .
    Not only stray dogs, people across the country would jump to eat ” just arrived organic manure” aka alleged dried human excrement s , imported from China, if any uneducated man would give it a publicity. Over 70% would emulate the other without thinking twice. SADUsadu effect is highly infectious than Covid viral infection.🐃🐕😡🐃🐕😡🐃😡🐕😡🐕🐃😡🐕🐃😡😉😉😉😉😉

    • 12
      1

      And minister of health threw a pot filled with “pirith chanted water” in to river branches in all public instead of taking timely actions against the containment of the virus from its spread. .
      .
      Not only stray dogs, people across the country would jump to eat ” just arrived organic manure” aka alleged dried human excrement s , imported from China, if any uneducated man would give it a publicity. Over 70% would emulate the other without thinking twice. SADUsadu effect is highly infectious than Covid viral infection.🐃🐕☹☹☹☹☹

  • 28
    2

    The people of Sri Lanka (the vast majority) don’t understand that their main tormentors and oppressors are the grinning devils that wear white robes and adorn (or sour) their television screens every evening on the news. The police are not there to protect the people. They protect their political masters from the people instead. That is why the CID and the police in general do not perform their “duty” as expected by the writer.

    • 10
      0

      LP,
      nopoint of even worth mentioning about the total indifference and ignorance of the ones who were fed with ” bitter pill – on sinhala buddhism based on jathaka and avajathaka fictions”.
      .
      Sivuru wearing hypocrites and crook politicians of Rajaapkshe nature are the main reasons society to fall this deep….
      .
      I can say only AYOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO! no wayout. .🐃🐕😡🐃🐕😡🐃😡🐕😡🐕🐃😡🐕🐃😡😉😉😉😉

  • 24
    2

    A very good article! The problem is even the Buddhist Maha Sangha and highly educated professionals do not understand this truth.

  • 10
    0

    “Naduth Hamuduruwange and Baduth Hamuduruwange”

    Literally means the judge is a monk and stolen goods belong to the same monk.

    Hamuduruwa = Buddhist monk
    Naduth = justice
    Baduth = stolen goods, prostitutes, alcohol, drugs

    So much like Sri Lanka!

    • 9
      0

      Gatam,
      .
      all these are being continued while PRESIDENT Nandasena shamelessly say ” I have set examples not being bribe friendy or uncorrupted”.
      .
      Can you agree with him ?
      .
      That prison minister did all the harm, no investigations are called yet
      .
      Kudu duminda Silva (multi criminal – convicted high criminal) was released…. PRESIDENT owes a PUBLIC statement on this unethical release, while OUR great humanist honourable Ranjan Ramanayake keep further in prison –
      .
      Why on earth YELLOS PETs stay mum yet today regarding RR s unethical imprisonment ?

  • 9
    0

    You never heard of a guy called Shani Abeysekera?. If you have, you are talking in your sleep. Wake up and the next time you vote, vote for some educated honest young chaps who can get their act together and lift this country out of the stinking morass that it has fallen into today.

  • 8
    0

    Mr. Asoka Seneviratne: You say: ” The only job of the President is to manage the country within the provisions of existing laws and leave the law enforcement to the police and courts”.

    That would be a “Mirage” as far as Sri Lanka is concerned. Ever since the “Theme” of everything except to make a” Man a Woman and a Woman a Man”, was introduced to the country, no President has followed that lofty ideal you have stated. The present President has undone a little space of that ideal you speak of by abolishing the “19A” and introducing the “20A”

    The trouble is no President and the Political Leadership has understood the “ROLE” of that position in the Constitution, but by “Choice” has “Encroached” and taken steps to “Sujugade” the very legal instrument that enables them to hold on to power. We need someone to “BELL THE CAT”. We are on the lookout at the present moment.

  • 7
    0

    Thanks, Mr Asoka Seneviratne,
    .
    You have seen the issues clearly, and written equally clearly without any of the convolutions and technicalities that some bring into every discussion.
    .
    For civilised life to thrive in any society there has to be fair and transparent observation of law and order by nearly all. There will, inevitably be transgressions and quick objective action must be taken to counter any such.
    .
    The contradictions are there for all to see, and even the villager does. However, whether he will be able to vote intelligently for the next government is far from clear. The guys who must be firmly rejected are those cynics who keep saying that as many believers voters as possible spoil their votes.

    • 2
      0

      Thank u Gambada mahaththaya,
      These days there are govt bogus websites make every effort to fish tourists offering them misleading info but using govt logo and everything. I ll add the info here later. .
      .
      Tbd

      • 2
        0

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        :
        PLEASE PASS THIS INFORMATION IN ORDER ANY PASSENGERS NOT TO GET CAUGHT BY THE TRICKS BEING PLAYED BY THEM:
        .
        I believe NISHSHANKA SENADHIPATHI AND GOTABAYA ARE BEHIND THIS:

        Sri Lanka Immigration Services Team
        visa@srilankaimmigration.org

        East Tower, World Trade Centre, Echelon Square,Level 26 & 34,Colombo 00100, Sri Lanka.
        Tel: +1 917 397 7487
        Website : http://www.srilankaimmigration.org
        Email: visa@srilankaimmigration.org

  • 1
    0

    First and foremost, I must thank the writer for penning this article providing much food for thought. The author refers to “the rule of law”. There are debates on the differences of “Rule of law” and “Rule by law”. My understanding is that this concept was first mooted by Prof. Dicey in 1885. Based on that definition, if the requirement is a complaint for the Police to step in, then what is the basis for the cry that the Police must investigate on their own volition? The Police here, have a problem. If they are to investigate matters based on information received by other means, they can be found fault for it in a subsequent lawsuit alleging malice on the part of the initiator of investigations. On the contrary the former AG initiated action based on information generally available stating that the law permits him to do that. Whoever, be the politician elected has a sorry choice of running the country with a grossly underpaid public service resulting in a poor state of performance. No politician, here, will rectify that because it is through this mechanism that their desire to earn for seven generations is met.

  • 2
    0

    The Rajapakshe’s are like wild greedy donkeys. They don’t care about seperation of powers or the rule of law. They are the latest version of an evil hatched a long time ago by the radicalization of Buddhism. The radical Buddhist do not care about no stinking law. Village yokels don a robe after memorizing some slokas in Sanskrit and think they got an education. The next step is to acuire power and wealth at whatever the cost. The easy way is to stir up grieviance among the Buddhists and get the politicians into their grip. The First victim of these scoundrels was Banda. He had nobody but himself to blame. The next was his wife the destroyer of this nation even though she herself was an out and out aristocrat who betrayed all her own class just like her husband to cater to theses stupid idiotic Buddhist with their bogus grieviance mentality. Crafty JR finally got them to support the UNP. The Rajapkshe’s are the latest family to manipulate these fools.

  • 2
    0

    To the 6.9 million, our courts, our law enforcers, the military all exist to do their bidding. That includes burning and pillaging minority owned buisnesses, Murduring minorities etc. etc. All these rules regulations and institutions are western and white man created ones to be ignored and thrashed at their will. This is also what mutts like Nalin De Silva the so called professor and supporter of the Rajapkshe’s believe. So whats the use of talking about an economy or the embezzelers who have robbed this country left right and center. All fair game.

  • 1
    0

    totally agree
    power of the politicians
    Out of politicos power is taken by one person the president. Minimum power in the parliament is vested on the few people PM and speaker. Other parliamentarian on government side are ball boys who create some drams and get themselves self humiliated to protect there leaders. concession for them is to become millionaire by corruption public projects and by underhand business
    Power of Judiciary – Judges will please politicians by giving them favorable decisions. They have become prostitution’s of the respected profession. But if they unite and upheld the law with dignity no powerful president will have might to hurt them by any means. Lawyers earn there money by delaying and prolonging cases and benefit by corrupt services.
    Police has become brutal force to protect politicians. There duty is not see any politicians and they should make sure law breaker to be accounted and produced before the judiciary to be punished, If they do that most powerful president will be weak and powerless.
    Not only the ruling family whole society is corrupt.
    Forgot mention most corrupted yellow robed mercenaries

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