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Building a future and forgetting the past

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by Professor Savitri Goonesekere

At the ceremonial opening of out first Parliament on February 4, 1948 the late Mr. SWRD Bandaranaike addressed the nation with theses words. “It is true that no people can live on memories alone. It is equally true that history often provides a source of strength and inspiration to guide them in the future. It is only against the background of the past that the present and the future can be viewed in their correct perspective”

The new political ideology of “thinking out of the box” in governance seems impatient with the idea that history and experience has any value. This may be the “new normal” in a country where history was not taught in our schools for decades. The 20th Amendment that has just been gazetted and will go before Parliament for adoption demonstrates that the newly elected government is embarking on the important task of constitutional reform without reflecting on our experiences of governance under the 1978 Constitution.

Most nations in South Asia have not had to carry out frequent changes to the basic law of their country, the Constitution. It is true that our country has not in general experienced illegal power grabs. Yet electoral politics has also encouraged ad hoc amendments to the Constitution. In debating the cost of recent exercises in constitutional reform, the 20th Amendment, we should reactivate our collective memories on governance over the years. In doing so we should reflect on SWRD Bandaranaike’s statement of 1948 giving due consideration to the kind of governance we deserve and want for our country in the future.

The SLPP campaign for repealing the 19th amendment and adopting a new constitution.

The opposition and the media did not ask them to clarify their rationale for doing so or their vision. Within a month of taking office the 20th Amendment is being brought to Parliament to give supreme powers to the President without the system of checks and balances on distribution of powers between the three agencies of government in a Parliamentary democracy – the Legislature, the Executive and the Judiciary (courts). It is true that strong leadership in governance is essential for national development. However Parliamentary democracies create institutions and systems to help great leaders govern without forgetting the responsibilities of office and accountability, heeding not just electoral majorities, but all the people.

The 1978 Constitution provided the framework of governance for our country for 42 years. A Constitutional amendment that gives supreme power to an elected popular leader without institutional checks and balances can determine governance in a country long after he has left office.

 

The 19th amendment 2015

The 19th Amendment continues to be demonized by politicians in the government and others as a conspiracy of the previous regime to cunningly increase the powers of the then Prime Minister and undermine the President’s powers in governance. Yet the consensus within and outside Parliament in 2015 was that the dismantling of the Executive Presidency of the 1978 Constitution done in stages pending a new Constitution was a worthwhile objective and in the public interest. It was agreed at that time and up to mid 2019 that the Executive Presidency was a demon that had to be destroyed.

That agenda itself had a long history that we have all forgotten. President Chandrika Kumaratunga, when she took office pledged to dismantle the “bahubootha” 1978 constitution which she said was responsible for decades of bishanaya and dooshanaya (violence and corruption). Prof. GL Pieris and the late Dr. Neelan Tiruchelvam were tasked with giving leadership and drafting a new Constitution that would transfer executive power to an elected Prime Minister and a Cabinet responsible to Parliament and the people. When taking Cabinet office in that government Prof. Pieris said “a Parliamentary executive model must be re-introduced. The Peoples Alliance has received an overwhelming mandate … for the abolition of the Executive Presidency.” (Sunday Times September 13, 2020, page 14).

The 2000 Constitution that Prof. Pieris brought to Parliament had strong provisions on the appointment and removal of judges to prevent political interference. It had a stronger bill of fundamental rights and a carefully thought out system of power sharing between the central and Provincial governments. This 2000 Constitution was rejected because there was no consensus on its adoption within Parliament.

President Mahinda Rajapaksa assumed office in 2005 on a mandate to dissolve the Executive Presidency. His Mahinda Chinthanaya policy for national development called for strengthening the Bill of Rights in a new Constitution. The National Action Plan on Human Rights was drafted and adopted. The President also appointed an Expert Committee to assist the All Party Conference (APRC) on constitutional reform and asked them to work towards maximum devolution to resolve the “national question” with power sharing. Yet in 2010 after giving leadership in ending the armed conflict in 2009 President Rajapaksa seized the moment to bring an 18th Amendment to the Constitution that would enable him to become a President for life. He acquired full powers on appointment and removal of holders of high office and Public Commissions without the scrutiny of a Constitutional Council and procedures introduced by the 17th amendment.

When President Sirisena was elected in 2015 he assumed office with a pledge to the nation to dismantle the Executive Presidency. He repeated this pledge on the passing of Rev. Maduluwave Sobitha who had led an election campaign to eliminate the executive presidency reinstating the checks and balances on abuse of executive power through institutions such as Parliament and the courts and independent commissions. It was in this environment that the 19th amendment was adopted by consensus and the two-thirds majority without challenge within the Parliament or in the Supreme Court.

A comparison of the 19th and 20th amendments.

A comparison of these two amendments clearly demonstrates that the cores principles of government in the 19th Amendment has been removed by the 20th Amendments in areas of great significance for the governance of the country.

 

The term  of the Office of President and

Eligibility for office

The 19th Amendment repealed provisions in the 18th Amendment, and set a term of office of five years, and a two term limit on the period in which he could serve in this office. These provisions have been retained in the 20th Amendment .However, the President  holding office under  the 20th Amendment will have all the powers of the Executive President  in the 1978 Constitution,   and some more powers. 

When the 19th Amendment introduced limitations on the President’s terms of office, it also REDUCED Presidential powers to accommodate the concept of a transfer of powers from the President to an elected  Prime Minister in Parliament. The changes  in  the Presidential term of office were combined with what Parliament agreed was a first step in LIMITING the executive  powers of the President, to  ensure accountable exercise of these powers.

The 19th amendment prohibited a dual citizen from being elected to office as a Member of Parliament, or as the President. These prohibitions have been repealed by the 20 Amendment and such persons can be Members of Parliament or President. 

There is a perception that this prohibition will prevent dual citizens from holding ANY public office. This is incorrect. The prohibition in the 19th Amendment only applied to the public offices of President and Members of Parliament, recognizing the potential for a serious conflict of interest should such a person be called upon to “carry arms” for another country, or support controversial policies of that country. An ordinary holder of public office may have choice and can resign. However resignation for conflict of interest has  Constitutional implications, if a person is   the President of the country, or a member of its legislative body, Parliament.

Presidential Powers and Accountability to other organs of Government and the People, in the Exercise of these Powers.

Significant changes to the 1978 Constitution were made  by the 19th Amendment in keeping with the overall objective of reducing the powers of the Executive Presidency, in the interests of accountable governance .

 

a) Duties of the President.

 

The 19th Amendment defined powers and also introduced a principle of “duties” that had to be fulfilled by the President. Some of the significant duties were, to:

i) ensure that the Constitution is respected and upheld

ii) promote national integration and reconciliation

iii) create a proper environment for the conduct of free and fair elections, on the advice of the Election Commission

 

The 20th Amendment retains provisions on Presidential powers and REPEALS  the provisions in the 19th Amendment on Presidential duties under the Constitution, and to the People, and the other organs of government.   

 

b) Accountability for Violation of the Fundamental Rights of the People by Presidential Acts and Omissions in Governance

 

 The 19th Amendment removed the blanket immunity of the President that was incorporated in the 1978 Constitution. The  19th Amendment recognized that the President was immune from liability in criminal or civil proceedings for anything done or omitted to be done in his official or private capacity. However, it placed a limitation, by permitting actions for violation of fundamental rights in the Supreme Court. This was to ensure that the exercise of Presidential powers, in his official capacity, could not involve a violation of fundamental rights guaranteed to all by the Constitution, or by the provisions on the use of Official Languages in the Constitution.

The declaration of war and peace was excluded from this limitation. 

The 20th Amendment repeals these limitations on Presidential immunity. It goes back to the principle of complete Presidential immunity from liability for his acts and omissions.  

There is a provision in the 20th Amendment on the right to bring actions against the Attorney General in respect of the President’s acts as a Minister, his /her impeachment, elections and a referendum, but the  scope of this liability is not clearly stated.

 

The Presidents Relationship to Parliament

a)  Responsibility to Parliament in the exercise of Presidential Powers

 

The 19th Amendment gave prominence to the President’s responsibility to Parliament in the exercise of his powers and functions, as a core principle of governance, in the Chapter of the Constitution on the President’s powers and duties. This principle was originally stated in the 1978 Constitution in the Chapter on the President and the Cabinet – the branch of the executive also represented in Parliament. The 20th Amendment brings this principle back to the part of the Constitution that deals with  the Cabinet, denying it the importance given in the 19th Amendment.

The change can be interpreted as limiting the President’s responsibility to Parliament. It is significant in a context where the 20th Amendment gives total presidential powers in regard to appointments to “High Posts,” defined by the Constitution, and the Public Commissions defined in the 20th Amendment. The Constitutional Council that was given oversight responsibility by the 19th Amendment had a significant majority of Parliamentarians on the Council. The Constitutional Council has been abolished by the 20th Amendment, and the Parliamentary Council that replaces it has the Speaker, the Prime Minister and the Leader of the Opposition, and two Parliamentarians nominated by the latter, who are appointed by the President, and who can also  be removed  by the President at his discretion!

The Parliamentary Council under the 20th Amendment is under the control of the President, and  there is only a token  role for Parliamentarians, including the Speaker the Prime Minister and the Leader of the Opposition. They have no contribution to make in their official capacity as members of the Parliamentary Council.

 

                  b) Dissolution of Parliament

 Presidential powers on the Dissolution of Parliament, and the provisions on presentation of urgent Bills, also erode the role and responsibility of Parliament, and the capacity for oversight and scrutiny of legislation.

The 20th Amendment empowers the President to dissolve Parliament  one year after a General Election. This places the country in a situation where a costly General Election can be held in a very short time , and with no assurance that this decision will be made in the public rather than the rulers’  interests.

c) Other changes of concern relate to the Presidents capacity to refer legislation that has been rejected by Parliament for a referendum.

This provision in the 1978 Constitution was repealed by the 19th Amendment and has been brought back by  the 20th Amendment. A new provision on legislation states that “any amendment to a proposed Bill in Parliament must not deviate from the merits and principles of such Bill.” This sweeping provision can restrict debate and modifications of legislation in Parliament, and will encourage greater passivity and disinterest in serious discussions.

 

The President, Prime Minister and Cabinet,

as the Executive in Governance

The agreed  objective of the  19th Amendment was  to reduce the executive power of the President and transfer some of these powers to a Prime Minister and Cabinet from Parliament. Consequently, the provisions in the 1978 Constitution were changed significantly. The 20th Amendment has repealed all these provisions and gone back to the concept of supreme executive powers given to the President.

The President has complete discretion in determining the number of Ministries and the topics allocated to Ministries and State Ministries. “Jumbo Cabinets” can hold office without regard to national resources, at the discretion of the President. More importantly, the office of Prime Minister,   Cabinet Minister and State Minister, will be held at the “will and pleasure” of the President, with the full power of appointment, removal, and selection of Ministries left entirely to the discretion of the President. He can also assign any subject to himself, and take away Ministries allocated to any Minister, without even consulting the Prime Minister, exercising these powers in any manner that pleases him. 

There are no checks and balances at all on the exercise of Presidential powers in relation to the Prime Minister and Cabinet, under the 20th Amendment. Can this not encourage complete servility to the President, within Cabinet?    

The changes ignore the fact that the Prime Minister and Members of Parliament have been elected by vote to Parliament with separate responsibilities to voters. Having permitted voters to exercise choice, the 20th Amendment disempowers them completely, and makes them accountable to a single individual – the President. The Prime Minister has been reduced to an ” peon (office orderly),” as one holder of the office described himself, when he held the position under the 1978 Constitution. Yet ironically the provision that the ‘Cabinet has the direction and control of government and that they are answerable and responsible  to Parliament” has been  retained in the 20th Amendment.

 

(to be continued in The Island tomorrow)

(The writer, a highly accomplished academic in law, is a former Vice Chancellor of the University of Colombo)



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Features

Port City Bill Requires Referendum

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by Dr Jayampathy Wickramaratne,PC

The Colombo Port Economic Commission Bill was presented in Parliament on 08 April 2021, while the country was getting ready to celebrate the traditional New Year. With the intervening weekend and public holidays, citizens had just two working days to retain lawyers, many of whom were on vacation, and file applications challenging the constitutionality of the Bill in the Supreme Court within the one-week period stipulated in the Constitution. One wonders whether the timing was deliberate.

Special economic zones are common. They are created mainly to attract foreign investments. In return, investors are offered various concessions so that their products are competitive in the global market. Several negative effects of such zones have also been highlighted. The sole purpose of this article, however, is a discussion on the constitutionality of the Bill.

The Bill seeks to establish a high-powered Commission entrusted with the administration, regulation and control of all matters connected with businesses and other operations in and from the Colombo Port City. It may lease land situated in the Colombo Port City area and even transfer freehold ownership of condominium parcels. It operates as a Single Window Investment Facilitator for proposed investments into the Port City. It would exercise the powers and functions of any applicable regulatory authority under any written law and obtain the concurrence of the relevant regulatory authority, which shall, as a matter of priority, provide such concurrence to the Commission. The discretion and powers of such other authorities under the various laws shall thus stand removed.

The Commission consists of five members who need not be Sri Lankan citizens, quite unlike the Urban Development Authority, the Board of Management of which must comprise Sri Lankan citizens only. One issue that arises is that the vesting of such powers upon persons with loyalties to other countries, especially superpowers, would undermine the free, sovereign, and independent status of Sri Lanka guaranteed by Article 1 of our Constitution. It would also impinge on the sovereignty of the People of Sri Lanka guaranteed by Article 3 read with Article 4.

The removal of the discretionary powers of the various regulatory authorities is arbitrary and violative of the right to equal protection of the law guaranteed by Article 12 (1).

Under Clause 25, only persons authorized by the Commission can engage in business in the Port City. Clause 27 requires that all investments be in foreign currency only. What is worse is that even foreign currency deposited in an account in a Sri Lankan bank cannot be used for investment. Thus, Sri Lankans cannot invest in the Port City using Sri Lankan rupees; neither can they use foreign currency that they legally have in Sri Lanka. The above provisions are clearly arbitrary and discriminatory of Sri Lankans and violate equality and non-discrimination guaranteed by Article 12. They also violate the fundamental right to engage in business guaranteed by Article 14 (1) (g).

Under clause 35, any person, whether a resident or a non-resident, may be employed within the Port City and such employee shall be remunerated in a designated foreign currency, other than in Sri Lanka rupees. Such employment income shall be exempt from income tax. Clause 36 provides that Sri Lankan rupees accepted within the Port City can be converted to foreign currency. Under clause 40, Sri Lankans may pay for goods, services, and facilities in Sri Lankan rupees but would be required to pay a levy for goods taken out of the Port City, as if s/he were returning from another country! The mere repetition of phrases such as ‘in the interests of the national economy’ throughout the Bill like a ‘mantra’ does not bring such restrictions within permissible restrictions set out in Article 15.

Clause 62 requires that all disputes involving the Commission be resolved through arbitration. The jurisdiction of Sri Lankan courts is thus ousted.

In any legal proceedings instituted on civil and commercial matters, where the cause of action has arisen within the Port City or in relation to any business carried on in or from the Port City, Clause 63 requires Sri Lankan courts to give such cases priority and hear them speedily on a day-to-day basis to ensure their expeditious disposal.

The inability of an Attorney-at-Law to appear before the court even for personal reasons, such as sickness, shall not be a ground for postponement. These provisions are arbitrary and violate Article 12.

Clause 73 provides that several Sri Lankan laws listed in Schedule III would have no application within the Port City. Such laws include the Urban Development Authority Act, Municipal Councils Ordinance, and the Town and Country Planning Ordinance. Under Clauses 52 and 53, exemptions may be granted by the Commission from several laws of Sri Lanka, including the Inland Revenue Act, Betting and Gaming Levy Act, Foreign Exchange Act, and the Customs Ordinance.

The Commission being empowered to grant exemptions from Sri Lankan laws undermines the legislative power of the People and of Parliament and violates Articles 3 and Article 4 (c) of the Constitution.

Several matters dealt with by the Bill come under the Provincial Councils List. They include local government, physical planning, and betting and gaming. Article 154G (3) requires that such a Bill be referred to Provincial Councils for their views. As Provincial Councils are not currently constituted, passage by a two-thirds majority will be necessary in the absence of the consent of the Provincial Councils.

The exclusion of the Municipal Councils Ordinance from the Port City area is not possible under the Constitution. When the Greater Colombo Economic Commission was sought to be established in 1978 under the 1972 Constitution, a similar exclusion was held by the Constitutional Court not to be arbitrary. Since then, under the Thirteenth Amendment under the 1978 Constitution, local government has been given constitutional recognition and included under the Provincial Council List. Under the present constitutional provisions, therefore, the Port City cannot be excluded from laws on local government.

The writer submits that in the above circumstances, the Colombo Port Economic Commission Bill requires to be passed by a two-thirds majority in Parliament and approved by the People at a Referendum. Quite apart from the constitutional issues that arise, such an important piece of proposed legislation needs to be widely discussed. It is best that the Bill is referred to a Parliamentary Committee before which the public, as well as citizens’ organizations and experts in the related fields, could make their submissions.

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Investigative Journalism?

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I usually end up totally exhausted when I finish reading the local newspapers from the Pearl. There are so many burning questions and so much is written about them but there are no conclusions and definitely no answers. For example, we seem to have three burning issues right now and this is not in order of importance.

We have a lengthy report that has been published on the Easter Sunday carnage. Everybody knows what I am talking about. However, no one, be it an editor, a paid journalist or a single one of the many amateurs who write to the papers, has reached a conclusion or even expressed an opinion as to who was responsible. At least not a believable one! Surely there are energetic and committed young people in the field of journalism today who, if asked, or directed properly will go out and find a source that would give them at least a credible hypothesis? Or do conclusions exist and has no one the courage to publish them?

At least interview the authors or should I use the word perpetrators of that report. If they refuse to be interviewed ask them why and publish an item every day asking them why! Once you get a hold of them, cross-examine them, trap them into admissions and have no mercy. It is usually geriatrics who write these reports in the Pearl and surely a bright young journalist can catch them out with a smart question or two, or at least show us that they tried? The future of the country depends on it!

We have allegations of contaminated coconut oil been imported. These are very serious allegations and could lead to much harm to the general populace. Do you really believe that no one can find out who the importers are and what brands they sell their products under? In this the Pearl, where everyone has a price, you mean to say that if a keen young journalist was given the correct ammunition (and I don’t mean 45 calibres) and sent out on a specific message, he or she couldn’t get the information required?

We are told that a massive amount of money has been printed over the last few months. There is only speculation as to the sums involved and even more speculation as to what this means to the people of the Pearl. Surely, there are records, probably guarded by extremely lowly paid government servants. I am not condoning bribery but there is nothing left to condone, is there? There are peons in government ministries who will gladly slip you the details if you are committed enough and if you are sent there to get it by a boss who will stand by you and refuse to disclose his sources.

I put it to you, dear readers, that we do not have enough professional, committed and adequately funded news organisations in the country. We can straightaway discount the government-owned joints. We can also largely discount those being run by magnates for personal gain and on personal agendas. As far as the Internet goes, we can forget about those that specialise in speculative and sensationalist untruths, what are we left with O denizens of the Pearl? Are there enough sources of news that you would consider willing to investigate a matter and risk of life and limb and expose the culprits for the greater good of society? Can they be counted even on the fingers of one hand?

In this era when we have useless political leaders, when law and order are non-existent when the police force is a joke, it is time the fourth estate stepped up to the mark! I am sure we have the personnel; it is the commitment from the top and by this, I mean funding and the willingness to risk life and limb, that we lack. Governments over the last few decades have done their best to intimidate the press and systematically destroy any news outlet that tried to buck the usual sycophantic behaviour that is expected from them by those holding absolute power.

Do you think Richard Nixon would ever have been impeached if not for the Watergate reporting? Donald Trump partially owes his defeat to the unrelenting campaign carried out against him by the “fake news” outlets that he tried to denigrate. Trump took on too much. The fourth estate of America is too strong and too powerful to destroy in a head-to-head battle and even the most powerful man in the world, lost. Let’s not go into the merits and demerits of the victor as this is open to debate.

Now, do we have anything like that in the Pearl? Surely, with 20 million-plus “literate” people, we should? We should have over 70 years of independence built up the Fourth Estate to be proud of. One that would, if it stood strong and didn’t waver and collapse under pressure from the rulers, have ensured a better situation for our land. Here is Aotearoa with just five million people, we have journalists who keep holding the government to account. They are well-funded by newspapers and TV networks with audiences that are only a fraction of what is available in the Pearl. Some of the matters they highlight often bring a smirk of derision to my face for such matters wouldn’t even warrant one single line of newsprint, should they happen in the Pearl.

Talking of intimidation from the rulers, most of us are familiar with the nationalisation of the press, the murder and torture of journalists, the burning of presses to insidious laws been passed to curtail the activities of Journalism. These things have happened in other countries, too, but the people and press have been stronger, and they have prevailed. We are at a watershed, an absolutely crucial time. It is now that our last few credible news sources should lift their game. Give us carefully researched and accurate reports with specific conclusions, not generalisations. Refuse to disclose your sources as is your right, especially now that the myopic eye of the UNHCR is turned in our direction.

All other ways and means of saving our beloved motherland, be it government, religion, sources of law and order and even civil society leadership seems to have lapsed into the realm of theory and rhetoric. Our last chance lies with the Fourth Esate and all it stands for. I call for, nay BEG for, a favourable reaction from those decision-makers in that field, who have enough credibility left in society, DON’T LET US DOWN NOW!

 

 

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Features

The world sees ugly side of our beauty pageants

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Yes, it’s still the talk-of-the-town…not only here, but the world over – the fracas that took place at a recently held beauty pageant, in Colombo.

It’s not surprising that the local beauty scene has hit a new low because, in the past, there have been many unpleasant happenings taking place at these so-called beauty pageants.

On several occasions I have, in my articles, mentioned that the state, or some responsible authority, should step in and monitor these events – lay down rules and guidelines, and make sure that everything is above board.

My suggestions, obviously, have fallen on deaf ears, and this is the end result – our beauty pageants have become the laughing stock the world over; talk show hosts are creating scenes, connected with the recent incidents, to amuse their audience.

Australians had the opportunity of enjoying this scenario, so did folks in Canada – via talk show hosts, discussing our issue, and bringing a lot of fun, and laughter, into their discussions!

Many believe that some of these pageants are put together, by individuals…solely to project their image, or to make money, or to have fun with the participants.

And, there are also pageants, I’m told, where the winner is picked in advance…for various reasons, and the finals are just a camouflage. Yes, and rigging, too, takes place.

I was witnessed to one such incident where I was invited to be a judge for the Talent section of a beauty contest.

There were three judges, including me, and while we were engrossed in what we were assigned to do, I suddenly realised that one of the contestants was known to me…as a good dancer.

But, here’s the catch! Her number didn’t tally with the name on the scoresheet, given to the judges.

When I brought this to the notice of the organiser, her sheepish reply was that these contestants would have switched numbers in the dressing room.

Come on, they are no babes!

On another occasion, an organiser collected money from the mother of a contestant, promising to send her daughter for the finals, in the Philippines.

It never happened and she had lots of excuses not to return the money, until a police entry was made.

Still another episode occurred, at one of these so-called pageants, where the organiser promised to make a certain contestant the winner…for obvious reasons.

The judges smelt something fishy and made certain that their scoresheets were not tampered with, and their choice was crowned the winner.

The contestant, who was promised the crown, went onto a frenzy, with the organiser being manhandled.

I’m also told there are organisers who promise contestants the crown if they could part with a very high fee (Rs.500,000 and above!), and also pay for their air ticket.

Some even ask would-be contestants to check out sponsors, on behalf of the organisers. One wonders what that would entail!

Right now, in spite of the pandemic, that is crippling the whole world, we are going ahead with beauty pageants…for whose benefit!

Are the organisers adhering to the Covid-19 health guidelines? No way. Every rule is disregarded.

The recently-held contest saw the contestants, on the move, for workshops, etc., with no face masks, and no social distancing.

They were even seen in an open double-decker bus, checking out the city of Colombo…with NO FACE MASKS.

Perhaps, the instructions given by Police Spokesman DIG Ajith Rohana, and Army Commander, General Shavendra Silva, mean nothing to the organisers of these beauty pageants…in this pandemic setting.

My sincere advice to those who are keen to participate in such events is to check, and double check. Or else, you will end up being deceived…wasting your money, time, and energy.

For the record, when it comes to international beauty pageants for women, Miss World, Miss Universe, Miss Earth and Miss International are the four titles which reign supreme.

In pageantry, these competitions are referred to as the ‘Big Four.’

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