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The Separation of Powers and the Independence of the Judiciary

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Checks and Balances in the Present Constitution

Moreover, the recent ruling given by the Speaker in Parliament on January 9, 2026, on the Opposition Motion to appoint a Select Committee to review recent appointments made by the JSC to the Judiciary further buttresses the explicit recognition of the SOP and the independence of the Judiciary. The Speaker reiterated the commitment of Parliament to the doctrine of the SOP and refused the Motion on the basis inter alia that Parliament was not hierarchically superior to the Judiciary and cannot be permitted to control the judiciary by creating an oversight mechanism with regard to the JSC.

Professor G.L. Peiris (Prof. GLP) in a speech delivered on December 12, 2025 at the International Research Conference at the Faculty of Law, University of Colombo published in The Island of December 15, 2025 under the caption “Presidential authority in times of emergency – A contemporary appraisal” has critiqued the majority judgment of the Supreme Court of Sri Lanka in Ambika Sathkunanathan V. A.G. on the declaration of emergency by Ranil Wickremesinghe as Acting President on July17, 2022 in response to the Aragalaya. The majority held that Wickremasinghe had violated the Fundamental Rights of the people by a Declaration of a State of Emergency. The author was to attend this event but was unable to do so due to a professional commitment out of Colombo.

After citing authority from several foreign jurisdictions in support of his view of judicial deference to the Executive on matters relating to an Emergency, he advances as one of the grounds as to why the majority were wrong in the Sri Lankan context is that the predisposition to judicial deference is reinforced by a firmly entrenched constitutional norm – “a foundational principle of our public law is the vesting of judicial power not in the courts but in parliament, which exercises judicial power through the instrument of the courts. This is made explicit by Article 4(c) of the constitution which provides “the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its members, wherein the judicial power of the People may be exercised directly by Parliament according to law” . Prof GLP opines that the majority judgment constitutes “judicial overreach which has many undesirable consequences” including “traducing constitutional traditions; subverting the specific model of separation of powers reflected in our Constitution”.

Prof. GLP, is in effect advancing the view that the Sri Lankan Courts in the present constitutional framework of the Second Republican Constitution 1978 are subservient to the Executive or Parliament.

This view of Prof. GLP is with respect, wrong on both constitutional principle and policy. There are no constitutional restraints on the judicial review of executive action in relation to declarations of emergency. Self-imposed judicial restraint may well constitute an abdication of judicial responsibility.

Unlike the Independence Constitution where a Separation of Powers (SOP) was found by judicial interpretation with the concomitant judicial power to even strike down post enacted legislation, the 1st Republican Constitution of 1972 explicitly did away with the concept of an SOP and instead whilst vesting sovereignty in the people, nevertheless made the National State Assembly the supreme instrument of state power exercising the Executive, Legislative and Judicial power of the people (vide Article 5). Resultantly the judicial review of enacted legislation was expressly done away with and instead pre-enactment review of a Bill tabled in Parliament by a Constitutional Court was provided for.

Indisputably, this fundamental departure introduced by the First Republican Constitution was a direct response to the Queen V. Liyanage and the other judicial power cases where the Courts expressly recognised an SOP and the jurisdiction to even review the constitutionality of post enacted legislation.

But this doctrine of the abolishing of the SOP was subsequently abandoned, and one of the significant and welcome departures introduced by the Second Republican Constitution of 1978 was the explicit reintroduction into our constitutional framework of the principle of an SOP. This is made explicit by Articles 3 and 4 of the Constitution which vests Sovereignty in the people but proceeds to delineate how that sovereignty is exercised in terms of the trichotomy of the Executive, Legislative and Judicial powers and the further recognition of franchise and Fundamental Rights as also integral components of the sovereignty of the people.

Although the twin principles introduced in 1972 of a constitutional bar on the post-enactment review of legislation was retained together with the pre-enactment review of legislation in the present 1978 Constitution, nevertheless the reintroduction of the SOP which guarantees the independence of the Judiciary is a fundamental feature of the present Constitution.

Although Article 4(c) of the present Constitution does state that “the judicial power of the People shall be exercised by Parliament through courts … recognised by the Constitution … except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law”, nevertheless there is a cursus curiae (practice of the court) of judicial authority by the Sri Lankan superior Courts that have recognised both the concepts of the SOP and the independence of the Judiciary from Executive or Legislative encroachment.

Leading cases which have recognized an SOP include Premachandra V. Monty Jayawickrema (1994) 2 SLR 90 (SC) and the Supreme Court Determination on the 19th Amendment to the Constitution (2002) in which the author appeared as Junior Counsel to the late Deshamanya H.L. de Silva P.C. The Supreme Court has recognised that the independence of the Judiciary is an intrinsic component of the present Constitution in several cases including the Court’s Determination on the Industrial Disputes Act (Special Provisions) Bill 2022. In fact, a more explicit pronouncement was made in Hewamanne V. De Silva where the Supreme Court held that judicial power vested solely and exclusively in the Judiciary (1983) 1 SLR 1 at 20.

Moreover, the explicit vesting in the Supreme Court of Sri Lanka under Articles 125 and 126 of the exclusive jurisdiction to interpret the Constitution and in respect of Fundamental Rights underscores the preeminent role of the Judiciary in our constitutional framework. Foundational principle of the present Constitution as recognized by our Courts include the Rule of Law, power is a trust, and there are no unfettered discretion in public law. Regrettably, Prof. GLP assails these welcome advances made in our public law jurisprudence.

In our constitutional setting of checks and balances and judicial oversight it is the function of the Judiciary to review the legality of Executive action, including matters relating to the declaration of a State of Emergency and Emergency Regulations. The duty of interpreting an Act of Parliament is a function of Courts and not of Parliament (Court of Appeal in C.W.C. V. Superintendent, Beragala Estates 76 NLR 1). The author cited this decision to the Supreme Court in challenging the Inland Revenue Bill introduced by the late Mangala Samaraweera. That Court reiterated this principle and agreeing with the author, ordered a referendum on a particular Clause.

Even in the pre-independence period up to 1948, when vide powers were conferred on the Governor who exercised Executive authority, the Courts have unequivocally reviewed the legality of executive action as manifest by the significant decision of the Supreme Court in 1937 in “In Re. Mark Anthony Lester Bracegirdle“, where the executive act of the Governor of arrest and deportation of Bracegirdle to Australia was reviewed by the Supreme Court and quashed. This decision was a striking assertion of judicial independence and is the first significant judicial review of executive action.

Moreover, the recent ruling given by the Speaker in Parliament on January 9, 2026, on the Opposition Motion to appoint a Select Committee to review recent appointments made by the JSC to the Judiciary further buttresses the explicit recognition of the SOP and the independence of the Judiciary. The Speaker reiterated the commitment of Parliament to the doctrine of the SOP and refused the Motion on the basis inter alia that Parliament was not hierarchically superior to the Judiciary and cannot be permitted to control the judiciary by creating an oversight mechanism with regard to the JSC.

(The author is a President’s Counsel and a Professor of Law)

By Nigel Hatch1



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Is power devolution under JVP-NPP a political daydream?

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Former President Chandrika Kumaratunga

The JVP General Secretary Tilvin Silva’s recent remarks at a news conference in Jaffna where he ruled out the possibility of holding provincial council elections this year has been widely reported and widely criticized. About the same time there was another media event in Jaffna that went largely unnoticed and unreported outside Jaffna. What was said at the second media event may carry far more political implications than Tilvin Silva’s election timing talk. A veteran Tamil political participant made the startling yet not implausible statement that the prospect of having political devolution under the JVP-NPP government is becoming “a daydream”. The statement was made by Dr. K. Vigneswaran, who served as Provincial Secretary to the only North-East Provincial Council Government that was elected under the auspices of the Thirteenth Amendment.

Dr. Vigneswaran is a Professional Civil Engineer who studied at Royal College, graduated with First Class Honours in Engineering in 1964, and went on to complete a pioneering PhD at the university of Waterloo, Canada, applying the finite element method (FEM) in the field of Geotechnical Engineering. His engineering career has always been at the Irrigation Department where he rose to a Deputy Director. That was when the department was in its golden years, and Vigneswaran was known for his technical mentorship, meticulous administrative skills, and for knowing the fine print of everything. While at the Irrigation Department, Vigneswaran married Ramya de Silva, a fellow irrigation Engineer. After 1983, Vigneswaran became a fulltime political activist and a powerful resource in Tamil politics, but with unwavering commitment to nonviolence, democracy and federalism. The family moved first to India and then Canada, and Vigneswaran has been shuttling between Canada and Sri Lanka.

Devolution: Tortuous Trajectory

Since 1987, the Indo-Sri Lanka Agreement, and the 13th Amendment, Vigneswaran has been a permanent fixture in all the politics and institutional dynamic of implementing 13A and establishing provincial councils. He served as Secretary to the only elected Provincial Government for the Northern and Eastern Provinces. After 1994 and the election of Chandrika Kumaratunga as President, Vigneswaran became a key participant in all the civil society efforts and government initiatives to restore the PCs and implement 13A, both during the Kumaratunga presidency and the succeeding administrations of Mahinda Rajapaksa and the Sirisena-Wickremesinghe duo.

Devolution efforts stalled after the election of Gotabaya Rajapaksa, who in so many words declared that he had no time for 13A or PCs in his presidential agenda, whatever it was. Only that his whole agenda turned out to be a wholesale disaster for the country. Already by then, all the nine Provincial Councils had fallen into abeyance with the cancellation of the 1988 PC elections by the Sirisena-Wickremesinghe duo, with the TNA standing by. The abeyance continues under the JVP-NPP government with no apparent end in sight after Tilvin de Silva’s statement in Jaffna.

I say all this to provide the proper context for Vigneswaran’s statement in Jaffna that the prospects for power devolution under the JVP-NPP government are becoming a political daydream. He said something else as well: that of all the government leaders he has encountered over the years, the only leader who has been genuinely sincere about power devolution is former President Chandrika Kumaratunga, and no one else. I am constrained to add that the insincere category would include Ranil Wickremesinghe, who for all his handsome promises, never matched any of them with experiential sincerity. The present JVP-NPP government still has time to show that they are not an insincere lot.

It is not my purpose to agree with or question Dr. Vigneswaran’s assertions, but to use them as cue and context to comment on the widening mismatch between the JVP-NPP government’s promises and its practices on the matter of power devolution and the restoration of the PC system. With a stalling economy, rising prices and external shocks, it is obvious that the government has all the economic matters to worry about, but that does not mean that it can ignore all the other government responsibilities. No government is put in power to solve a single problem or address a single issue. It is in the nature of governments to deal with multiple problems with varying priorities. Otherwise you could have a single cabinet minister to deal with one problem at a time. That is never going to be the case.

The economy is of course the top of mind priority for the government even as it is a top of mind concern for the people. Even on the economic front, the government is holding steady but is showing little progress. And there are other government initiatives where political accountability will call for answers: to wit, the catchall Clean Sri Lanka programme, ambitious educational reforms, contentious energy sector reforms and, yes, power devolution as well as the overpromised constitutional reforms. Not to mention the sprawling unforced errors over substandard coal imports, foreign exchange fraud, and the chronic neglect of developing the renewable energy sector. Correcting these fields of errors may require a separate ministry for each.

Devolution: Daydream or Deliverable

On the PC system and constitutional reform, there has been scant progress in spite of handsome promises. On both, the government is inadvertently deepening the holes that it had dug itself into through indifference, inaction or procrastination, or all of them and more. In the matter of devolution and provincial councils, the government can simply defuse the situation by directing the Election Commission to conduct elections at the earliest opportunity that is logistically possible. Making his statement in Jaffna, Mr. Tilvin Silva alluded to funding shortfall and legal complications as reasons for the necessity to postpone PC elections until next year. Neither reason holds water.

The funding question would seem to have been put to rest by the statement of Health Minister and Cabinet Spokesman Nalinda Jayatissa, presumably reflecting cabinet consensus, that there are no funding issues and if needed additional funds could be arranged through supplementary allocations. It is also disingenuous to cite legal complications as a reason. The so called legal complications arose because of the collective stupidity of the Sirisena-Wickremesinghe parliament that included the then miniscule NPP and the politically-lost TNA. The JVP-NPP has now ballooned from a handful MPs to a two-thirds majority and it can expedite any legislation that it wants to enable the PC elections to be held without delays.

Alternatively, the elections can be held under the old arrangement of proportional representation with assurance by political parties to honour their commitment to fielding more female candidates. Already at a gathering of all political parties, including the NPP (but not the JVP), and civil society groups, convened by People’s Action For Free & Fair Elections (PAFFREL), the political parties jointly committed to a 25% quota for women and youth under the old electoral system. The ongoing parliamentary committee exercise studying the legal matter, headed by the overstretched Foreign Minister Vijitha Herath, is also an unnecessary red herring. The Election Commission is ready to go under whatever law or electoral system that is before it. So, there is no reason to hide behind legal complications to further delay the PC elections.

Somewhat amusingly, Public and Parliamentary Affairs Minister Ananda Wijepala has trotted out the argument that the NPP government has already conducted two nationwide elections during the one and a half years it has been in office, and that unlike the Ranil Wickremesinghe government the JVP-NPP is not in the business “to delay elections for our personal benefit” – whatever that means. Unfortunately, the good minister is missing the point. The question is not how many elections can the JVP-NPP hold in how many years, but how many years do people in the provinces have to wait before they vote in another provincial election? How many more years? That really is the question.

We know the current situation in the provinces. There are provincial governments but no elected provincial councils. The government administration in every province is being run by the President of the Republic through his handpicked governors and unelected government officials. This is a travesty of democracy and the euthanizing of the PC system. Already under 13A, the office of the provincial governors has been constitutionally and legally compared to the office of the Governors of old Ceylon who represented the monarch in what was then a crown colony. The irony is that a JVP-NPP President may have inadvertently positioned himself as the monarch of all he provincially surveys, courtesy of the Thirteenth Amendment!

The JVP was in the forefront of the litigation that caused the demerger of the Northern and Eastern Provinces. If Dr. Vigneswaran’s assertion were to prove correct, a potential dissolution of the provincial system under the JVP-NPP government would be the consummation of the JVP’s original opposition to the introduction of the provincial council system itself. The whole system may not be eradicated, but it could be devoured of its democratic essence while preserving the administrative shell as the medium for the country’s president to overreach into the provinces. That would be worse than a daydream, a real nightmare.

by Rajan Philips ✍️

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‘Spectrum’ Art Exhibition Showcases Emerging Talent at Lionel Wendt

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A new art exhibition, titled Spectrum ,will be held at the Lionel Wendt Art Centre on the 20th and 21st of June 2026, bringing together a collection of works by ten emerging artists.

Athsara Wijegunawardena

Neha Thirumavalavan

Dillai Joseph

Wasantha Siriwardena

Champika Dias

Nipun Dias

Dr. Prasanna Siriwardena

Kalhari Perera

Siromi Samarasinghe

Chandana Illankone

All ten artists have trained under the guidance of renowned Sri Lankan artist Royden Gibbs, and this exhibition marks an important point in their individual journeys.

Dr. Prasanna Siriwardena

Spectrum brings together a mix of styles, subjects and approaches, giving visitors a chance to experience a wide range of work in one place. The exhibition will include pieces in watercolors, soft pastels, oils and charcoal, reflecting both the discipline and personal direction of each artist. The work ranges from scenery and portraits to still life and studies of the human form, offering different ways of seeing and interpreting familiar subjects.

Dillai Joseph

Although they share the same mentor, each artist presents a distinct point of view. The result is a show that feels varied yet connected, with each piece carrying its own character and intent. It is this balance that gives Spectrum its identity.

The exhibition aims to support and highlight emerging talent within Sri Lanka’s art scene, while also creating a space where artists and audiences can connect. Visitors will find work that shifts between quiet observation and more expressive pieces, making it an engaging experience for both seasoned collectors and those simply interested in art.

Spectrum is expected to draw art lovers, collectors, students and members of the wider creative community. It also offers an opportunity to discover and support new artists at an early stage in their careers.

Open to the public over two days, Spectrum invites visitors to experience a range of work in a venue that has long been part of Colombo’s cultural landscape.

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Rewiring Brain: Meditation to Break the Cycle of Craving

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“Craving begets sorrow, craving begets fear. For him who is free from craving there is no sorrow; how can there be fear for him,” Dhammapada verse 216 states. The mental factor craving, Tanha in Pali, is central to Buddhist Teaching, as its ultimate goal is the cessation or extinction of it—tanhakkhaya. Even though Tanha is translated as craving here, it can sometimes mislead modern readers into thinking tanha only refers to extreme or physical addictions. Just as with any Pali term, it has broad meanings. Venerable Walpola Rahula describes it as “thirst” or unceasing wanting, one of the deep-rooted proclivities or latent tendencies (anusaya) of life (Rahula 1959), without which life as we know would not exist.

Even though the Buddha recognized this natural phenomenon two and a half millennia ago, it was only in the late 20th century that science took note of it and gave it a captivating term—the Hedonic Treadmill. The advantage of this empirical investigation to us Buddhists is that it provides a way to gain penetrative, experiential comprehension (anubodha) of this concept using the vernacular of this technology-savvy age—an alternative to struggling with the language of a bygone era.

These investigations have revealed that there are no hard-to-comprehend metaphysical or mysterious elements involved with this phenomenon; it is a biochemical process fundamental to sustaining life. What is more, an effort to grasp this concept would be well within the goals of Vipassana meditation described in the Sutta Pitaka, incorporating the four elements of investigation: body (kayanupassana), sensations (vedananupassana), mind (chittanupassana), and natural laws (dhammanupassana).

Vipassana and modern science

Vipassana meditation is an in-depth exploration of how humans perceive the world, gain knowledge, and interact with themselves and the environment. Knowing this with wisdom allows one to lead a harmonious way of life (samadhi), a condition conducive to curbing the “thirst” and achieving the Buddhist ideal. The goal of modern science is also to investigate life, but humanity has often used that knowledge to increase material wealth and comfort, providing only lip service to spirituality on the fringe.

An attitude that tends to ignore the consequences of wanting more and more – thirst, potentially endangering the planet. However, that does not prevent us from using scientific information as and aid or a tool to grasp Buddhist concepts. The scientific method bears parallels to the Buddhist approach: it is based on causality (paticcasamuppada), empirical verification (ehipassiko), systematic observation (meditation), and rejecting dogma and beliefs. The primary difference is simply the vocabulary used.

The process of perception: five aggregates

Our five external sense organs receive data (vedana) containing information on the environment: Eyes: receive light, Ears: receive sound, Skin: senses physical contact and temperature, Nose & Tongue: sense chemical properties of substances. The data received by the sense organs is transmitted to the brain, where it is registered as neural networks (sanna). Neural networks, which are interconnected groups of nerve cells (neurons) can be viewed as mind-readable QR codes.

The activity of the brain, or mind (mano), processes this data and converts them into actionable information (sankhara). Modern neuroscience and psychology have made great advances in understanding these processes at the molecular level. This process allows the individual to become aware of their environment, build an autobiographical memory or the notion of a self (atta), and take actions to protect and perpetuate life.

The Pali term vinnana refers to the collection of information committed to memory. Translating vinnana as “consciousness” can be confusing, as the latter often refers to all brain activities. All physical phenomena that sense organs encounter and the mental constructs (sankhara) are referred to as Rupa. This activity of mind forms the basis of all knowledge, representing the entire world as perceived by the individual. This process is what the Teaching refers to as the Five Aggregates (pancakkhanda). The critical takeaway is that the world we perceive is merely a mental construct. While an objective world exists, our sense organs have limitations in seeing it—a fact easily realized through the hundreds of illusions used for entertainment.

Evolution and emotion

The evolutionary purpose of this data processing mechanism is to enable living beings to respond to environmental factors for survival. The psychological and physiological state that arises prior to acting is called emotion. Primarily, emotions can be of three kinds: desire (loba) – seeing a new phone causes an urge to buy it, even though the current one works fine; aversion (dosha) – encountering a vicious dog triggers a “fight or flight” response; delusion (moha) or illusion – an unanswered message to a loved one triggers worry or speculation. Thus, tanha or thirst represents how we connect to the world in its entirety; it can be desire, aversion, and delusion, not merely simple greed. Consequently, these are natural phenomena beyond our immediate control, which are intended to sustain life. In other words, emotions are the forerunner to volitions or intentions, which the Teaching defines as kamma.

The biochemistry of craving

Emotions result from the interaction between the nervous system and biochemicals known as neurotransmitters and neuromodulators (e.g., dopamine, serotonin, epinephrine, GABA, glutamate, acetylcholine, and endorphins). Just as the Buddha’s simile of two bundles of bamboo supporting each other describes, these two processes are interdependent and co-arising. Every thought or emotional state corresponds to patterns of neural firing. When neurons fire, they release these chemicals into synapses, influencing how one feels and acts. This release perturbs the body’s normal balance, or homeostasis. Once an action is complete, these chemicals are reabsorbed, and the body returns to its baseline.

Return to baseline is essential for survival. For example, if we stay satisfied with just one meal forever, we could not sustain life. Nature has developed another mechanism to prevent us from being satisfied – we also habituate. In the case of dopamine, the brain adapts by reducing the response to the same stimulus. To get the same level of satisfaction with repeated experiences, the amounts of neurotransmitters needed keeps increasing. This leads to the cycle of craving and dissatisfaction—the Hedonic Treadmill. You “run” toward happiness on the treadmill, but it does not take you anywhere, leaving you in the same emotionally unsatisfactory state, wanting more and more.

Breaking the cycle

This explains why achievements and possessions do not bring permanent happiness, and lead to a cycle of struggle, addiction, crime, and other ills of society. For Buddhists, it also explains why we cling to meaningless rituals. The Dhamma captured this complex phenomenon in the Four Noble Truths: pleasant experiences are impermanent (anicca), leading to grasping (tanha) and unsatisfactoriness (dukkha). The remedy is the Eightfold Path that involves wisdom (panna), conduct (sila), and harmony (samadhi).

Neuroplasticity and the point of liberation

While we cannot stop the sense organs from receiving stimulation (vedana) and sending them to brain, the mind can be developed to prevent vedana from leading to tanha. This is the “point of liberation,” the seventh link in the paticcasamuppada formula. We may not have free will, but we have ‘Free Won’t’ or the ability to say no to the natural tendency to act upon stimuli. We can rewire our neural connections to do so. This ability can be cultivated by practice and repetition, and neuroscience refers to it as neuroplasticity—the brain’s ability to change with experience.

The natural tendency of the brain is to strengthen frequently used neural networks while weakening and eliminating lesser used networks and building new ones as needed. This is known as neural plasticity or rewiring the brain. As described in the Eight-fold Path, the way to weaken and eliminate dopamine-driven neural networks includes three aspects. First, the process leading to thirst must be understood. One must engage in sila – activities and thoughts that cultivate Metta: loving-kindness and goodwill, Karuna: compassion, Mudita: appreciative joy, and Upekkha: equanimity, emotional stability, calmness, and evenness of mind in the face of gain and loss, praise and blame, fame and disrepute, pleasure, and pain. That must be done with wisdom, ritualistic behavior does not strengthen the correct neural networks. These activities promote a “cocktail” of oxytocin, serotonin, and GABA, subduing the role of dopamine and helping us step off the Hedonic Treadmill. This leads to a tranquil state of mind and a harmonious existence – samadhi. Again, it is an interdependent, co-arising process that improves upon repetition. Using mind altering substances hijacks this process, thus the need for adhering to the Fifth Precept.

The goal of Vipassana is to understand this process and train the mind to say “no” to tanha. It is not just about sitting on a mat; it requires developing a lifestyle that maintains homeostasis or harmony, samadhi, at every moment. Pali term bhavana means the development of wisdom and insight. In modern vernacular – rewiring brain. This model must be assessed for its efficacy by the individual and realize the benefits by themselves –ehipassiko; knowledge without practice does not work. According to what the Buddha taught, that is the path to cessation or extinction of craving – tanhakkhaya, the supreme goal.

by Geewananda Gunawardana, Ph.D. ✍️

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