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Judiciary – ‘a sleeping giant’?

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I stumbled upon an article published by Verite Research. It stated that the number of days it takes to enforce a contract through the court system in Sri Lanka was 1,318. That is in excess of three and a half years. The information was drawn from a World Bank study on the ease of doing business, with enforcing contracts being one of the metrics. A contract is one of the basic means of legal recourse. The article also showed that in Vietnam and Malaysia, time taken to enforce a contract was around 400 days. In Singapore it was 150 days.

You might safely assume that successive administrations since 2013 would have moved mountains to improve this most basic indicator. Especially considering that Sri Lanka was touting itself as a frontier economy in the region, in 2013, enforcing a contract ought to have been made much easier and quicker in the interim six -seven years.

Well, in 2013 it was 1,318 days and today, in 2020, the latest report from the World Bank shows that the number of days taken to enforce a contract is still 1,318 days! I dare say this may have something to do with inadequate reporting or a lack of data. I urge anyone to use the tools at hand to research this further.

Whatever these indices say about Sri Lanka, the lived experiences of many Sri Lankans are as good a measure as any. All Sri Lankans today, in 2020, know very well to avoid the legal system at any and all costs; as the expense, the time taken and the virtual harassment that the inefficiencies of the court system inflicts on ordinary citizens, are simply not worth the trouble. Even an employee that wants to seek redress for being unfairly treated by his or her employer will have to wait many years to obtain compensation, despite stringent labour laws. This shows that having strict laws in place is futile unless they can be implemented in a speedy manner.

During my career, I recall many instances where actions of competent officers were undermined by their organizations. I am aware of a specific instance at a foreign bank where there was a case of deferment of revenue by a senior officer, without formally advising the customer. This exposed a systemic failure of the bank’s internal systems, yet officers higher up the ladder were scapegoated. This allowed the bank to not only cover-up the deficiencies of their systems but to also conceal the incompetence of its expatriate CEO.

The expatriate CEO in question was conveniently transferred out of Sri Lanka, while the local officers are still in court, five years later. The expatriate CEO was allowed to take early retirement with full benefits, while the local officers even had their contributions to their own gratuity payments frozen by this foreign bank. The loss of earnings besides the effects on their reputations and the stress of the process is one thing. Yet to have an international organization use all of its financial and legal might to delay, block and mislead legal proceedings is shocking. What is downright disgusting is that the system is built for this type of delaying tactic, where justice comes after many years of court dates and many millions in legal fees.

Whether you are involved in a car accident or you have had a personal item stolen or you have been verbally abused, the most common course of action taken by you would be to shrug your shoulders and move on. Going to the police and resorting to legal action would basically be the utmost last resort, no matter what crime has been committed.

For reference, in the late 1980s, I met with a car accident while working in the Middle East; another motorist carelessly scratched my vehicle. There was a police officer nearby, who immediately intervened and took down my details. Within one week, I received a cheque from my insurance company to pay for the repairs. No going to the police station to record a statement, no prolonged wait for an insurance agent.

In Sri Lanka, if you are a business owner and you need legal recourse, you face a multi-year wait. Can we call this a fair judicial SYSTEM? Can something that is so clearly stunted, so obviously unfit for purpose, be described as a system? It you do so you must affix the word BROKEN, before the word, ‘system’. Is it broken beyond repair? Within this broken system, can there be justice? Without justice, can we be a truly democratic society?

There also seems to be a process of never-ending interviews and investigations. Witnesses and others related to an investigation are interviewed by the police for six or eight hours sometimes. I shudder at the thought of pages upon pages of unnecessary notes and records taken at these interviews. Another example of a lack of efficiency or intentional time wasting. The time taken to collect evidence after an offence has been committed simply allows those accused more time to escape punishment.

Sri Lanka has had a Ministry of Justice since 1947. Ministers of Justice throughout the years have included luminaries of public service such as Felix Dias Bandaranaike, Ratnasiri Wickramanayake, Nissanka Wijeyeratne in the past. More recently, W. J. M. Lokubandara, Rauf Hakeem and Wijeyadasa Rajapakshe have held this cabinet position. Yet, we see a shocking lack of attention paid to this issue which affects all Sri Lankans, of all walks of life.

By the Justice Ministry’s own latest available statistics, as at end 2016, about 725,000 cases were pending in courts, with the largest number, 535,000 cases, pending in Magistrates’ Courts. Consider what this number actually represents; in human terms. How many people must feel helpless at the lack of action? A wait that could last several years would be bad enough for the owner of an enterprise or an entrepreneur or even a simple shopkeeper.

Yet consider those waiting for justice for serious crimes; murder, rape, theft or even harassment. How desperate must someone feel to have been robbed, or had a loved one assaulted, but then wait years upon years for redress, with no guarantee and no definite time-line. How many people will watch the best years of their lives wither away in courtrooms around the country? The almost machine like process of taking a day off your job to attend a court date, only to be given another court date three-six months later, is simply dehumanizing. Let us call it what it is; an inhumane system, completely unfit for purpose.

If there are over 700,000 cases pending in our system, do we even dare consider how many cases never make it into the system at all? Such an estimate, if attempted would certainly be multiple times more and would perhaps be the most depressing statistic of all. Usually, what is most insidious is what the numbers do not show as well as the situations for which there are no numbers.

Sri Lankans seem to have internalized this notion of helplessness, perhaps this is ingrained in our psyche by design. We simply do not want to risk our precious time, energy, money, well-being and job security to take a case to the courts. The countless, faceless millions of Sri Lankans over the years that have had to simply grin and bear whatever misfortune befalls them, deserve better.

Worse still, this system allows those with even a modicum of power, to abuse it, as they know they will not be tried in a court of law, anytime within the next five years. The room this leaves for corrupt practices in every sphere of life is a blot on our society. The vacuum of law and order that this creates will necessitate desperate measures by Sri Lankans. We read many stories of Sri Lankans taking matters into their own hands, most times out of sheer desperation.

To gauge how bad the situation is, you need only revisit the infamous “Yahapalanaya” government, and its efforts (genuine or not) to litigate cases involving political corruption and abuse of power. President Maithripala Sirisena at the time decided to form special courts to hear such cases. This too seems to have been an abject failure, similar to the five year stint of that administration.

The people should also note that if certain cases need to be expedited, for political reasons, it can sometimes happen. Political expediency is the number one priority, not the needs of the common man. Yet another indication that the political class and elites of the country play by a different set of rules.

RW

Colombo

 



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Opinion

Rise of Cheena Saubhagya

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Before the Aluth Avurudda dawned, we were talking about the lost crown of Ranjan Ramanayake and the grabbing and fighting over the crown of Mrs. Sri Lanka.

The auspicious time for the dawning of the New Year would have brought joy to those who were able to get enough rice, coconut oil and honey to make kiri buth, kevun, kokis and other delights, and even enjoy some of the avurudu games, although without elevated pillow fights and tugs-o-war. 

But the reality facing us all, with songs of the cuckoo and other birds, is a push into an inauspicious era in the country, with democracy getting its biggest blow from a government that pledged to strengthen the democratic rights of the people. 

We now face the reality of the Bill for the Colombo Port City Economic Commission, which, if enacted, would take us far away from the goals  of democracy that our people, and most political leaders and parties were committed to, from many years before independence. The proposed Colombo Port City has all the promise and assurance of being a new colony in South Asia, with the colonisers, as seen today, being the Chinese.

Is this the reality of the Rajapaksa dream and goal in politics and governance?

We do remember that when the work on the Colombo Port City was ceremonially launched in September, 2014, by President Mahinda Rajapaksa and the Chinese President Xi Jinping, the entire project – the artificial island to be constructed by the Chinese – was written off to China. A permanent Chinese holding.

It was left to the Yahapalana government, which followed in 2015, to have serious negotiations with China, and change the full ownership to a 99-year lease given to China. 

What we now see is that the Saubhagye Dekma of President Gotabaya Rajapaksa is, in fact, the rise of the Cheena Saubhagya in Sri Lanka.

A country that has had free elections since 1931, even before independence, and has had a functioning parliament, since 1948, is seeking to do away with the very concept of parliamentary democracy. The Colombo Port City Economic Commission is the display of nondemocratic governance, where the nominees of the President, will be answerable to him and not to the country and people on the functioning of the Port City, its income and expenditure, and all facilities in the new Dictatorial City, inside the Democratic Sri Lanka.

The Sri Lankan voters have much to do with the threat that democracy faces today with the Port City exercise. The 69 lakhs that voted Gotabaya Rajapaksa to office as President, the somewhat smaller vote that gave a parliamentary majority to the SLPP – Pohottuva – alliance in the general election, and the two-thirds majority the government gained in the passage of the 20 Amendment, are core values of the Rajapaksa-Port City strike at democracy.

Mahinda Rajapaksa may have been a strong supporter of democracy, in his early years in politics, and his first election as President but the dictatorial trend in Rajapaksa politics has been clearly seen in the post-war Sri Lanka. Today’s dictatorial policies coming with the Port City Commission, began with Mahinda Rajapaksa drawing MPs from the Opposition and passing the 18th Amendment, which curbed the democratic trends of the 17 A.

After that, the 19 A of the Yahapalana, restored democracy and expanded the provisions and facilities of democracy with Independent Commissions, and considerable independence in the appointment of members of the judiciary. 

The Rajapaksas came again, after the Easter Sunday carnage, with their full strength, and popular support to remove the values of democracy that were brought into the Constitution from the 19A, to full and shameful strides into dictatorial governance, with the 20A.      

The massive threat to democracy that comes from the Port City Commission is also backed by the draft legislation to remove the court cases on crime and corruption against members and supporters of this government. This dictatorial move is also supported by the removal of the many cases filed in the courts by the Bribery Commission, on technical errors – which can certainly be corrected — but not thought necessary by a corrupt regime.

The Port City Commission is the complete flowering of corruption and dictatorial trends in this country. This is the show of majority dominance, not to serve the people, but to serve a large and powerful family,  and the catchers that serve and benefit from it, with claims of ViyathMaga or any such crooked players.

We now have a member of Parliament of the government, but not holding any portfolio or even a state ministry, come out in a loud criticism of the Varaya Nagara Keliya. Such critics were once very supportive of all the corrupt moves by the Avant Garde players, exposed by Yahapalanaya; but things do change. The Varaya Nagara Keliya is the display of the realities of Rajapaksa Balaya. It is in keeping with the Basil Rajapaksa call to learn more of the Chinese system of governance. 

What we see with the Port City is the vast abandonment of democracy. Such political thinking will not be limited to the Port City, but will soon extend to the entire island. It is the realisation of Rajavasala Thinking, where memorials for deceased parents could/should be built at State/People’s expense.   

What the people are told to accept today is the Cheena Saubhagya. It is just one display of Apey Pavul Saubhagya, which is the reality of Port City crooked governance.

Let us see how much the judiciary can help the people of Sri Lanka safeguard its longer commitment to democracy, beyond the crooked and deadly impact of the 20A.

Cheena Saubhagya, Bunga veva!  

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Opinion

First reign of terror by the JVP

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By MANO RATWATTE

I have been reading your articles on the 1971 JVP insurrection, quite avidly. A lot has been narrated about the fateful night of April 5th and the events that followed.

It was fascinating to read the accounts by the retired DIG. Thank you for all the articles. It brought back some vivid memories from my childhood.

My personal story from
that fateful period

I was a young boy, just past my 11th birthday and attending Royal College at the time. I was oblivious to the fact that, my father was the Private Secretary to the Prime Minister, and my maternal grandfather was the Governor General (Ceylon had not become a republic yet – that would happen later), our family would be under attack. I remember the very tense period, and how my parent’s home had been marked for attack. The markings were faint, a crude “X” made with red brick. This was repeated at the homes of some other relatives of the Prime Minister, as well. We were oblivious, never noticing the ominous markings.

I have no doubt if the JVP had succeeded they would have executed Mrs. Bandaranaike and probably my father, who was her brother, as well. The PM’s Private Secretary is a position equivalent to a White House Chief of Staff. My grandfather, as the GG and nominally Head of State, would probably have been a victim, too. It is more than likely that the JVP would have massacred my entire family, emulating what their heroes, the Bolsheviks did to the Czar’s family in Yekaterinburg, after the Russian Revolution.

When the severity of the threat became apparent, we were whisked away on the night of April 4th to the GG’s residence, Queen’s House, because the Army Commander felt it wasn’t safe for us to remain in our home. My grandfather had been the Governor General, since 1962, so luckily, we had a safe haven that was familiar to us. As a kid I thought it was “cool” to be escorted by armed soldiers. But, looking back, I realise I may not be alive today, if the JVP revolt had succeeded.

The timing of the JVP’s 1971 rebellion was very poor. The United Front government, which had won a massive landslide electoral victory, in 1970, hadn’t been in power for even an year and had not been able to implement many changes. The economic hardships, food queues and rationing, which were to come in the aftermath of the global energy crisis of 1973, weren’t on the horizon yet. Ceylon was a pleasant place with a vibrant democracy; the exception being the notorious coup attempt of 1962. A violent overthrow of the recently elected government wasn’t something likely to gain much support with the populace.

However, it is likely that, not for the serendipitous incidents in March, reported in this newspaper previously, with the JVP’s bombs exploding prematurely, the security forces would have been far less prepared and the rebellion may well have succeeded.

The situation in the early days of the revolt was very tense. My father was very active in the discussions, and was part of the National Security Council at Temple Trees. It seemed ‘touch and go’ for a while, but my father said that the Prime Minister never panicked. I know my father definitely didn’t, remaining calm despite the initial flood of bad news.

My father never panicked, no matter what the threat was. He had previously faced down the Air Force guard that threatened to open fire on my aunt, in January 1966, along with the late Dr. Baduiddin Muhammed, at a political rally. Before that, in September 1959, he had helped prevent the domestic staff at Tintagel, the PM’s private residence, hack, murderer Somarama to death, after SWRD’s assassination on the front lawn of the property. If the assassin had been killed that day, the right wing conspiracy behind it would have never been uncovered.

Reminiscing o 1971, he told us much later, with a chuckle about the ashen-faced (his words) Army Commander who was at the NSC meetings held at the Temple Trees annexe. The General wanted the PM to ask Yugoslavian leader Marshal Tito for military help. I’m not sure if the request was ever made or whether Mrs. B refused as she had faith in country’s military.

Lanka’s innocence was lost forever that day. Suddenly security and protection of VIPs became a thing in Ceylon. Prior to April 1971, the Prime Minister would have just a token escort, with a pilot-car containing a couple of armed guards and one personal bodyguard, typically a Police officer. The Governor General hardly had any security. A sleepy police Sergeant would be posted at Queen’s House. No bulletproof cars or decoy convoys like today. All that began during the war against the LTTE terrorists and suicide bombers.

I didn’t realize the gravity of the situation, until I saw guard points manned by armed sailors from the Navy, between Temple Trees and Queen’s House, during the curfew.

I remember riding in the GG’s vehicle to Temple Trees, and seeing Navy sailors in their blue uniforms and helmets with rifles and lights pointed towards the car, shouting “Halt” at the vehicle. They were mostly armed with obsolete WW1 vintage Lee Enfield Rifles, or the small Sterling ‘Sten’ submachine guns. I still remember their smart blue uniforms and the white garters (boot covers) around their boots. I also remember seeing a fleet of Indian Navy ships in Colombo, anchored facing Galle Face Green.

I remember my father, and the late Anuruddha Ratwatte (his cousin, then a Colonel), flying on Indian Air Force helicopters from the Royal Ceylon Air Force ground, that the retired DIG referenced. I tagged along in the vehicle that was used to drop them off there. They were overseeing the airdropping of surrender leaflets; an idea my father is believed to have thought of and proposed to the NSC. It offered amnesty and rehabilitation to JVP cadres who surrendered. The leaflets were dropped over the thick jungles where the remnants of the JVP were hiding. It may have been later in April or much later in May. I hope the DIG throws some light. The idea was a success with many fugitive JVP-ers surrendering to the security forces as a result of the campaign.

I have a lot more memories of those scary and sad days. The JVP has never apologized for the disruption of Ceylon’s society. Their actions were far worse in their second incarnation, but by then we were inured to violence. In 1971 we were still a peaceful and innocent country.

What if the 1971 rebellion had succeeded?

What if the JVP had seized power that April, 50 years ago? What would a Ceylon look like? A beautiful socialist utopia with complete state control of the economy? Thousands of grey Mao-suited robots with a little red book goose-stepping to herald a strongman similar to North Korea, who were supporters of the JVP? Would Wijeweera have been a Dear Leader and great benefactor? Or an Oliver Cromwell, a Gandhi, or a Pol Pot?

Act 2: Policy mistakes

Harping back to the 1971 insurgency; it shocked the leftist coalition government, headed by my aunt. As a result, some of the radical policy reforms, such as the Land Reform Act, were rushed through to assuage the anger demonstrated by the insurgents.

Land Reform, as my father later used to say, was one of the “most iniquitous” acts of policy. Think about it. Landholdings were restricted to 50 acres per adult. So if a family had adult children they could have 50 acres each, but even if a family had four young children, they lost most of their lands and six people would all have 50 acres in total ! It defied common sense and economic logic.

Did they assume the kids wouldn’t grow up to become adults? Or perhaps it was deliberately written to favour some, with thousands of acres of land and adult children, over others with young families or no children. Either way it was an absurd policy, which destroyed many viable plantations, reducing them to economically unviable smallholder status.

Housing ownership policies also were also rushed as a result of the 1971 rebellion. The implementation of this, too was botched and much wealth was destroyed. If the JVP had been more patient, they could have had a much better chance of wreaking even greater mayhem, when people were angry and tired of the stagnant economy post-1974.

But, indeed, it was serendipitous that those two premature bomb explosions happened in March. The second one happened the day my family was spending time with our uncle to celebrate his birthday.

Act 3 – The next JVP
insurrection

Their reign of terror and counter terror by the Government, in 1987- 89 was far worse for the entire nation. I was by then out of the country and did not experience any of it. My father wrote to me and asked me to stay in the USA as long as possible. An uncle of mine (a first cousin of my father’s) was burnt alive in Matale, during the hell the JVP unleashed in the aftermath of the Indian “invasion by invitation” after J.R. Jayewardene erred in handling relationships with India. Another good friend’s relative was chased down and killed at his estate, because he had raised the national flag on Independence Day as the government had requested. A respected scholar was assassinated on the University of Colombo campus – Professor Stanley Wijesundere. His son and I were good friends and classmates.

And no one should forget nor forgive the brutal murder of a great humanist and charismatic leader Vijaya Kumaranatunge, the leader of the SLMP and most popular celebrity actor. Why did the cruel assassins shoot him in the face after he was already dead and fallen? Was it because of sheer envy and evil thoughts of their leader who could not stand a good-looking popular rival?

My issue with all these lame excuses and talk about a ‘people’s struggle’, is that the JVP never sincerely apologized for the violence they unleashed, and keep celebrating their leader as if he’s a local Lenin; when he and his then generation of combatants had more in common with the Khmer Rouge and Pol Pot, than Marx.

Recap 1971

Harping back to the successful victory over the JVP, in 1971, it must be mentioned how quickly almost every major nation in the world came to help Sri Lanka. Because of the excellent relationship between Ceylon and India, they were the first to rush in help. I remember they even supplied the Army with SLR 7.62 automatic weapons, much more capable weapons than the ancient rifles and inaccurate Sten guns which was all they had. The Ceylon military, which up to that point was a well-disciplined force but mainly a ‘parade-ground army’, was called upon to quell a domestic armed insurrection while armed with vintage bolt action rifles.

The tiny Armoured Corps, equipped with a few Daimler armoured cars, (the largest of which had a 2-pounder gun) was used to secure Kegalle and Mawanella, which had been seized by the JVP. A few vintage Ferret Scout cars armed with WW2 era Bren guns, were deployed at Temple Trees. Later one of the Saladin six-wheeled armoured cars, with a bigger 76mm gun was also deployed facing Galle Road.

Ceylon’s tiny military, led by professional leaders, acquitted themselves really well. While there were sad incidents like the Premawathi Manamperi incident, they deserve gratitude and thanks of the entire nation. Especially a then 11-year old boy’s sincere thanks for protecting him and his family.

Hope

All is not hopeless. The new younger and more educated leaders of the JVP have embraced democratic politics and their performances in Parliament exposing corruption of governments (whichever government is in power), and their well informed and educated analysis and criticisms, are a fresh positive contrast to the adi-pudi abuse laden politics of everyone else. But they will remain a less than 5% party if they keep celebrating a man who twice took our nation down a path that was disliked or hated by most. Clearly, the UNP could also apologize for the counter terror they unleashed.

Geo political friends

India was the most important ally in 1971. Indian-Lanka relations deteriorated because of President J. R. Jayewardene’s hostile views and his foolish attempts to align himself with the US and ASEAN, totally oblivious to who the regional power was. This is something to be cognizant of today, in post cold-war realignment of alliances. The USA, which was once hostile to India, is now totally aligned in the QUAD coalition against China. India has justifiable fears and concerns about China. It stems from having been humiliated by China in the1962 border war which led to a loss of territory.

Sri Lanka really needs to nurture its friendship with India so that they will be like the 1971 ‘Dhosthi India’ and not the ‘Dushman/badamaash India’ following the gory Black July of 1983. Same country – two different postures.

The paradigm shift about security, in 1971, was significant and permanent.

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Opinion

Buddhism and all beings’ right to life

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A large majority of human beings deny the right to life of animals and other sentient beings, including insects. Why? (Sentient being is a living being endowed with mind and consciousness). The late Venerable Narada Thera in his book titled, Manual of Buddhism, states as follows- “The tolerance of the Buddha was not only to men and women but to dumb animals as well. For it was the Buddha who banned the sacrifice of poor beasts and admonished the followers to extend their loving kindness (maithree) to all living beings. No man has the right to destroy the life of another living being, even for the sake of one’s stomach, as life is precious to all” He quotes from the Metta Sutta: “Whatever living beings there be, feeble or strong, long, stout or medium, small, large, seen or unseen, those dwelling far and near, those who are born and those who are to be born, may all beings be happy-minded, without exception. Just as a mother would save her own child, at the risk of her own life, even so let him cultivate boundless love towards all beings.”

Venerable Bhikkhu Bodhi in his book, titled “The Noble Eightfold Path-Way to End Suffering” says: “The positive counterpart to abstaining from taking life, as the Buddha indicates, is the development of kindness and compassion for other beings. The disciple not only avoids destroying life, he dwells with a heart full of sympathy desiring the welfare of all beings. The commitment of non injury and concern for the welfare of others represents the practical application of the second path factor “Right Intention” in the form of goodwill and harmlessness. Abstaining from taking life (Panathipatha Veramani) – Herein someone avoids the taking of life and abstains from it. The intention of harmlessness, is a thought guide by compassion (karuna) aroused in opposition to cruel, aggressive and violent thoughts. Compassion has the characteristic of wishing that others be free from suffering; a wish to be extended to all living beings. It springs up by considering that all living beings, like ourselves, wish to be free from suffering.”

The Lankavatara Sutra of Mahayana Buddhism states: Quote: “For the sake of love of purity the Bodhisatva should refrain from eating flesh, which is born of semen, blood,etc., for fear of causing fear to living beings; let the Bodhisatva who is disciplining himself to attain compassion, refrain from eating flesh. It is not true that meat is proper food and permissible when the animal was not killed by himself. Meat eating in any form, in any manner and any place, is unconditionally and once for all prohibited”

 

The Surangana Sutra states: “In seeking to escape from suffering ourselves, why should we inflict suffering upon others? How can a Bhikkhu who goes to become a deliverer of others, himself be living on the flesh of other sentient beings? The Buddha forbade Buddhists from engaging in occupations that involve killing of animals, such as Butcher, Fisher, or Animal farmer.”

When it comes to small animals, like rats, and insects, the attitude of the large majority of humans is as if they do not have right to life.

According to Buddhism, they, too, have the right to life as human beings. While some human beings try to prevent cruelty to animals such as elephants, tigers, dogs, etc., I have never heard of any one talking of cruelty to insects. My opinion is that the first precept in Buddhism ( Panathipatha Veramani) applies to all animals, and insects, as well. They too feel pain.

I would like to obtain the observations of other readers of your newspaper on my opinions expressed above.

 

NEIL PERERA

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