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World Affairs



This is Paradise






  Continuing the media hunt   Human Rights -and wrongs

 President caught in a judicial bind

Sarath Silva, C.R. de Silva
and Mahinda Rajapakse

By Sonali Samarasinghe

Influence is not government, but to a pedestrian thinker like Mahinda Rajapakse who vigorously resists any form of independence or rule of law it is an integral part of his staying power.

And as much as Rajapakse strives to maintain a stranglehold on vital appointments in the country, there is an irony in the government's selective enchantment with legislation inspired and enacted by the UNP.

Even as the international community slams the Rajapakse regime on its failure to implement the 17th amendment to the Constitution and appoint the Constitutional Council that would enable independent commissions to oversee the police, public service, elections and the judiciary, it waxes eloquent over the two decade old 13th amendment in order to appease calls for a political solution to the ethnic conflict.


All of Sri Lanka's political leaders since independence have unfortunately decided that a malleable judiciary is the first step to good governance. The attempt to influence is often so despicable a highly respected Chief Justice of yore Neville Samarakoon was to say sadly as he bid farewell to his judicial carreer, "I go from Obscurity into Oblivion." And indeed such independence in a gangrenous political milieu is often rewarded by calamity or isolation.

This list is by no means exhaustive but J.R.Jayawardena had the houses of the judges stoned, Chandrika Kumaratunge collected files on judges to hold as a sword of damocles over them and  appointed friends for political expediency, only to regret it later and Rajapakse has taken this to new heights in his attempt to interfere in his own inimitable pit bull in a pre school style. And it is in this context that Rajapakse has created in the breast of every independent judicial officer a great and substantial fear.

The Judiciary will be an open playing field to the Rajapakse regime as vacancies come up this year on the retirement of several judges. Already by April's end there would be two new judges sitting on the Supreme Court Bench.


Supreme Court Judge Nihal Jayasinghe retired recently while Justice Nimal Dissanayake is to retire on April 23.

Chief Justice Sarath Silva has rightly recommended that Justice K. Sripavan, President of the Court of Appeal be appointed to fill the Supreme Court vacancy created by the retirement of Justice Nihal Jayasinghe.

With the elevation of Justice Sripavan to the Supreme Court it leaves a one judge-sized vacuum in the Court of Appeal and herein lies the rub.

The Chief Justice has recommended that High Court Judge Upali Abeyratne four down in the line of seniority be appointed to the Court of Appeal. Exacerbating the chaos, Attorney General C.R.De Silva has been pushing for Additional Solicitor General P.A.Ratnayake to be appointed to the Court of Appeal no sooner a vacancy opens up.

Ratnayake, a soft spoken man of demure habits from all accounts is the senior most additional solicitor general among five ASGs and is immediately below Solicitor General Dep in the hierarchical structure.

High Court judges are however vigorously protesting the possible appointment of HC Judge Upali Abeyratne to the Court of Appeal stating there are three other judges senior to Abeyratne J who should first be considered.

The senior most High Court judge is Kandy High Court Judge Susantha Lekamwasam. The next in line is Avissawella High Court Judge Nihal Silva with Commercial High Court Judge, M.K.Chitrasiri being the third in line while High Court Judge Upali Abeyratne is the fourth in line according to seniority.


The concerns of the judges are many. If Judge Abeyratne is appointed to the Court of Appeal, senior most High Court Judge Lekamwasam would have to wait, and quite unfairly too, for the next vacancy which is due on April 23 with the retirement of Supreme Court Judge, Justice Nimal Dissanayake.

By Upali Abeyratne pipping him at the post, Judge Lekamwasam who would in the normal course of events have succeeded Justice Sripavan will only be able to fill the vacancy opening up in late April.

And alas and alack the domino effect will now cause misery to all other judges too be they High Court, District Court or Magistrates Court.


In the normal course of events Avissawella High Court Judge Nihal Silva who is second in seniority would have filled the vacancy created in April by Justice Dissanayake because if justice prevails Judge Susantha Lekamwasam would have filled the vacancy already available with the retirement of Justice Jayasinghe.

But High Court Judge Nihal Silva is already 60 years of age and due to retire this August upon reaching the retirement age for HC judges - 61 years. For a Court of Appeal Judge the retirement age is 63.

If he is not appointed to the court of Appeal as is justly due by April, then the Avissawella High Court Judge Nihal Silva will be compelled in such an event to retire as a HC judge as the next vacancy in the Court of Appeal opens up only in October.

The matter was of such concern that the High Court Judges Association on February 19 this year wrote to President Rajapakse seeking an urgent appointment with him. The letter in Sinhala titled the Seniority and Promotions of High Court Judges sought an immediate audience with the President to discuss the matter under title. The letter was signed by Tilak Thabrew Secretary of the Association.

However President Rajapakse like Pharoah had hardened his heart determined not to grant an appointment to the Judges, still rankling over the fact that the High Court Judges Association had filed a Fundamental Rights Petition in the Supreme Court over Salary anomalies.

His skin crawling with irritation Mahinda Rajapakse on receipt of the letter had turned to his Secretary Lalith Weeratunge and told him to keep the letter on hold as he was not willing to meet them now since they had gone to court on the salary issue. And there the matter stood with no appointment given for over a month.  


Another senior judge writing to President Rajapakse under confidential cover has stated that there is much concern expressed by judges and members of the law on the recent recommendation of Upali Abeyratne to be elevated to the Court of Appeal to fill the vacancy.

"The reason for concern", the letter states, 'is because such an appointment will be over the heads of the more senior High Court Judges and thereby will result in injustice being created."

The letter goes on to point out the order of seniority and the problems the judges would face due to the age of retirement and urges the President not to disregard seniority when making appointments.

The letter also states that while the three senior most judges have enjoyed unblemished careers and long years of service Mr. Upali Abeyratne had been a subject to a disciplinary inquiry earlier in his career.

And while High Court Judges are up in arms, Court of Appeal judges are not happy campers either. There are serious concerns within the Court of Appeal structure that someone from the Attorney General's Department or from the outside would be brought in and imposed upon the Supreme Court Bench thus preventing the natural flow of appointments according to seniority.

Indeed if speculation of ASG Ratnayake's appointment is to materialize it would be the first time in the history of the Bench that an Additional Solicitor General will be appointed to the Supreme Court.    

And in fact in the normal course of things once Court of Appeal Judge Sripavan fills the vacancy created by Supreme Court Judge Jayasinghe, next in line to the Supreme Court would be Appeal Court Judge Chandra Ekanayake who is the second most senior Appellate Court Judge after Justice Sripavan. Therefore When Justice Dissanayake retires on April 23 if seniority plays a part in the process it is Court of Appeal Judge Chandra Ekanayake who should fill that vacancy in the Supreme Court.


If merely reading the above intricacies of the appointments gives you a headache imagine what it must do to those who would suffer under a wrong Presidential decision on the issue. Mind you, he has to now deal with this hot potato because he has taken it upon himself by not appointing the Constitutional Council.

And the level of angst was so intense a delegation of the senior most Court of Appeal judges were to meet the Chief Justice last Tuesday March 18. The delegation comprised in order of seniority, the President of the Court of Appeal Justice Sripavan, and Appeal court Justices Chandra Ekanayake, S.I.Imam, S.Sri Skandarajah and Ranjit Silva. They reiterated that with a second Supreme Court vacancy coming up in April they would like to ensure that Appeal Court Judge Chandra Ekanayake's name be recommended to President Rajapakse for appointment to the Supreme Court. Chief Justice Sarath Silva had given an assurance he would do so.

Alarming news

Be that as it may under a Rajapakse regime alarming news is always just around the corner.  Mahinda Rajapakse is however in a quandary. Earlier he decided to consult senior lawyers and the Bar Association of Sri Lanka. In the final analysis as is customary Rajapakse will play political pandu in every sphere in which he is called upon to act.

With no Constitutional Council (CC) appointed and no Independent Judicial Services Commission to handle the appointments, President Percival Rajapakse must do his best to balance his own political interests, the whims and fancies of the higher echelons of the judiciary and the pleas of the judges calling for justice on the basis of seniority.

What he will do is anybody's guess. But left to Percy it can't get better.

Continuing the media hunt

A protest by the Movement Against
Media Suppression and
(inset) Lal Hemantha Mawalage

By Dilrukshi Handunnetti

The temples of justice have spoken well last week to uphold the dignity and rights of the media community in Sri Lanka, at a time when practitioners are subjected to unprecedented indignity, harassment and intimidation.

On Tuesday, the Supreme Court granted Editor of the website Outreach and a columnist with The Sunday Times, J. S. Tissainayagam leave to proceed with regard to his fundamental rights plea. The senior journalist, arrested on March 7 by the Terrorism Investigation Department (TID) for alleged links to the LTTE and a controversy with regard to the website's funding source successfully petitioned the Supreme Court alleging he was arbitrarily arrested. Tissainayagam was not allowed legal representation when recording statements and his house was thoroughly searched by the TID.

Four exonerated

Last Wednesday (19), the judiciary also sought to put the country on a correction course in its inimitable style. The Colombo Magistrate upheld the rights of three Outreach media workers and another who were unduly and unfairly detained with no charges being framed against them. The court released Outreach Journalist, Kitsiri Wijesinghe, Cameraman Ranga Lasantha, Visual Editor Udayanan and Jasiharan's relative Kumar who were held by the TID. What is important to record here is that all four were not just released but exonerated of the charges.

Similarly, there was no doubt within the media community that the Outreach saga would end that way, with the state authorities having egg on their collective faces. There is every  likelihood that the exonerated three would also follow their editor's course of action and petition the Supreme Court for the violation of their fundamental rights. 

Reporters sans Borders in a statement on March 21 stated: "Some of them were beaten in the first days of their detention in an attempt to extract confessions. Reporters Sans Frontiers (RSF) has obtained evidence that the money in question came chiefly from a German foundation, without any link with the Tamil rebels of the LTTE."

Both local and international media groups have severely condemned the arrest and claimed that funds for the on-line project were received from legitimate sources. The Paris-based RSF in a previous statement stated that funding for the website had come from FLICT, a German NGO and that Tissainayagam had received 12,000 Euros (18,800 US dollars) in November 2007 for the operation of the website.

GTZ funding

Meanwhile, FLICT, which stands for Funding Local Initiatives in Conflict Transformation, is backed by the German development agency German Technical Cooperation, or GTZ. "The anti-terrorist police are accusing the journalists of receiving money from the Tamil Tiger rebels, but after investigating, we can confirm that the funds in question came from a German foundation and from Tamil exiles,'' adds RSF.

In fact, the websites of two government institutions - the Ministry of Constitutional Affairs and National Integration as well as the Peace Secretariat have openly backed the many projects launched under the FLICT initiative.

While the judiciary has prevailed and ensured that all is not lost, the political administration sent out some terrifying messages last week to the country by the manner in which the SLRC crisis was handled.

First the issue was played down, then an unceremonious holiday for SLRC staff was declared like a bolt from the blues, denied selected workers access to the SLRC premises, pacified the SLRC unionists and swiftly appointed a retired military officer from the Signals Corps to a newly created deputy director general post. The message is very clear and hence forth, none would question as to which way the wind blows.

Holiday declared

SLRC workers were arriving at the SLRC on Monday (17) morning to report to work. There was hope in their hearts despite the fear that the employees were being systematically hounded. That evening, the SLRC trade unions had a meeting scheduled with President Mahinda Rajapakse to discuss ways to quell the brutal attacks on staff and to guarantee their security.

But they were stopped short by the Army and the police combined while the riot police stayed just few metres away, teargas canisters ready, in case there was to be a violent outburst by the workers. However, selected employees were allowed entry. Soon, workers denied entry were seen at the Independent Square,  just seated on the pavements while there was a heavy military and police presence around the area.

This naturally enraged workers and when Senior Producer Lal Hemantha Mawalage, himself a recent victim of violence tried to reach his colleagues wearing disgusted expressions, he was stopped. This led to serious arguments between the police and the SLRC.

In the meantime came an unprecedented announcement of a holiday for SLRC staff by Mass Media and Information Minister, Anura Priyadarshana Yapa. Media shy and late and difficult to locate, Yapa made this known through a statement issued through the media.

Army takes control

The army seized control of the public television, ready to man it if the workers go on strike.

Reporters sans Frontiers (RSF) called for an explanation from President Mahinda Rajapakse after the army took control of the state television station.

The army and police sealed off all roads leading to the station in the morning, preventing more than 200 staff from getting to work, a BBC correspondent reported; after employees threatened to strike in protest against a series of assaults by men "suspected of acting on behalf of a minister."

"The head of state should immediately order the army to withdraw from the station. This is in no way a good solution for ending escalating violence against SLRC staff since December 2007," the worldwide press freedom organisation said.

The corporation' s union representatives said that the authorities had decided to take control of the SLRC, in response to the strike threat. One union representative, Kanchana Marasinghe, said that many journalists feared for their lives and wanted the brutality brought to an end.

The SLRC drama reached fever pitch that evening, when Mervyn Silva was summoned by President Rajapakse to meet the angry trade unionists. It was stage managed, The Sunday Leader learns, with Silva being warned to maintain his cool throughout the meeting.

Acceptance of  link

At the meeting, Rajapakse has provocatively asked, "Isn't this now enough Mervyn?" which should be correctly construed as acceptance of the ruffian politician's direct link to the series of attacks on SLRC workers.

The unions agreed to stop going on strike, the justification offered by the government for allowing the Army to take over the public television station. The president reportedly warned trade union leaders, " I cannot be held responsible for what happened in the past. But we can take some concentrate actions to prevent more attacks. But don't destroy public institutions. Don't sabotage by striking work. We will nab the culprits and punish them and I promise to spare no one," the chief executive promised. The unionists agreed to discontinue trade union action.

As if to say the workers' assurances were insufficient, in yet another unprecedented move, the government appointed Major Gen. (Retd.) Sunil Silva formerly of the Signals Corps to a newly created post of Additional Deputy Director General (Administration) of the SLRC.

This move, the first of its kind with regard to the media since Rajapakse was elected in November 2005 shocked the media community.

Militarising media institutions

The Free Media Movement (FMM) expressed its outrage that the government has appointed retired Army Major General Sunil Silva as Additional Director General (Administration), a clear indication of militarising media institutions in government control. Major General Sunil Silva retired in January 2008.

"This appointment defies belief, as it comes less than 48 hours after a key meeting with the President of Sri Lanka and SLRC trade union leaders and journalists on the spate of brutal physical attacks against colleagues who stood up against the brutish intrusion by government MP Mervyn Silva into its premises late last year. No one at this meeting was consulted about or told of this appointment."

It added with concern: "Though retired, the appointment of ex-military personnel to a key post in the SLRC is particularly revealing. The militarisation of state apparatus under this regime is not new, but this is the first time it has extended to the media.

The International Federation of Journalists (IFJ) too expressed its concern that Sri Lanka's government has appointed a recently retired army Major General to a senior position at the troubled state broadcaster, SLRC.

Attacks by armed men

The attacks commenced on January 25 when a senior Producer/Presenter, Lal Hemantha Mawalage was attacked by two armed men. He suffered severe cuts to his arm and also received death threats on his phone on March 4.

Four days later on January 29, an attempted attack on SLRC employee Duleep Dushantha by two armed men at his home was averted. Dushantha's mother was threatened with death for informing authorities of the incident.

In the meantime, the SLRC employees live in perpetual fear. So far, five workers have been attacked and it is feared that others would soon come under attack.

On February 27, Assistant Director, News Camera Priyal Ranjith Perera was attacked by an unidentified gang. On March 5, SLRC Librarian, Ranjani Aluthge was stabbed with a razor knife while travelling on a public bus.

The fifth attack was on March 14, when an unidentified gang beat Anurasiri Hettige, himself an assistant director and a trade union leader while he was travelling from his Kotikawatta residence to work.

Pertinently, JVP frontliner K. D. Lalkantha announced on public platform that 21 names of SLRC employees had been handed over to the CID, and only 16 more remained to be attacked. "Five have been attacked. This list is in the right hands we are told. We wonder how and why Mervyn Silva enjoyed immunity unlike any other." It is a question best posed to the Silva's political leader, President Mahinda Rajapakse and of course -the SLFP's disciplinary committee that prefers to warm the chairs than take action against a politician who had turned into one of the administration's biggest embarrassments.

Journalist couple's house ransacked

Journalists Sunetra Athugalpura and husband Shashi Kumara were in for a rude surprise on March 16 evening.

The journalist couple had their house ransacked by an unknown gang. A shocked   Athugalpura, a deputy news editor with the Lakbima said that hundreds of books and files belonging to her father as well as her were strewn around the house when she returned. "It broke our hearts. Everything was in a mess. They were obviously not looking for gold or money," she said.

Her husband, Sirasa TV News Producer Sashi Kumara said they have no enemies and lost nothing owing to the burglary. "We have no personal enemies. It must be an act of intimidation," Kumara said.

Shashi Kumara had returned home on March 14 after a month's coverage of Pakistan elections in Pakistan. Atugalpura is well known political reporter and incidentally interviewed Minister Mervyn Silva the day after his infamous SLRC invasion.

Issuing a statement, the Free Media Movement (FMM) voiced suspicion that the attack on the journalist duo was linked to the Silva incident since Sashi Kumara had edited the December 27 visuals of the SLRC incident for telecasting over Sirasa TV.

Human Rights -and wrongs

The only hope left: Grieving mothers and wives holding aloft photos of their missing loved ones in front of the UN compound in Colombo during the visit of the High Commissioner for human Rights. (Photo: IRIN)

By Qadri Ismail

Human rights is the last resort of the hopeless.

Its liberal advocates do not  see it that way. They find it heroic, the foundation of a new international order that will, when established universally,  guarantee secure lives for everyone, everywhere - from Tibet to Timbuktu. But would the subaltern, the oppressed - the target of human rights - necessarily agree?

Take the following story. (Its details have been fudged to protect the innocent from the brutality of the Rajapakse regime and its paramilitary partners.)

A Tamil man was abducted by the military, at a checkpoint, somewhere in northeastern Sri Lanka recently, witnessed by many civilians. His wife inquired at every nearby military camp, but they denied having or ever detaining him. Someone advised her to contact a paramilitary group. They work closely with the government, she was told, and so could help. Desperate, she did. (This would be the EPDP or TMVP.) They noted her details and promised to investigate.

A few days later, members of this group abducted the woman and raped her.

Her husband is still missing, presumed killed by the military.

Seeing no other option, she told her story to a human rights organization.

The point should be obvious. The western powers and their human rights groups would have nothing to complain about if the Rajapakse regime did not treat its citizens - mostly the Tamils, but also Muslims and, increasingly, Sinhalese who resist - with systematic brutality. For the case of this woman and her husband is not isolated. It is not something  'collateral' that occurs, inevitably, regrettably, in the course of fighting a war on terror.

Her rape, if not her husband's murder, was planned, deliberate. As was the mass expulsion of Tamils from Colombo last year, a move the odious defense secretary advocated and defended publicly. As were the killings of Franklin Raviraj and T. Maheswaran - both MPs who spoke eloquently, often in Sinhala, in the Sinhala media, against the horrors of this government.

As is the ongoing expropriation of Muslim land in Amparai district by the Ministry of Environment and Natural Resources the legalized violence against Muslims is not the unintended consequence of the war against the LTTE. Neither is the recent spate of attacks against Rupavahini employees.

The counter-argument that the LTTE does similar things, while true, is an incredible response. Is the government's best defense that it is like a terrorist group?

The Rajapakse regime understands its mandate as promoting the greed and bloodlust of its thugs - whether in the cabinet or defence establishment - not the welfare of its citizens. Indeed, it has demonstrated that Mahinda Chinthanaya could be reduced to just one idea: if the people are not  quiet while we pillage the south, bombard the north and pacify the east, our thugs will terrorize them.

If our people, then, with nowhere else to turn, take these matters up with - to put it bluntly - white people, are we to blame them?

Space for the intervention of western human rights groups in Sri Lanka only becomes open in a political vacuum. This space should have been occupied by political resistance, the left. But, quite apart from the ineptitude of the current UNP, our left parties have, over the last forty years, largely surrendered to Sinhala nationalism.

For, despite the valiant efforts of the LSSP to remind us recently, through the republication of old speeches, that comrade Colvin warned, in 1956, that one language ('Sinhala only') would lead to two nations, the same Colvin also said, opposing the DC Pact in 1965: "Dudleyge badey masala vadey." The same Colvin, in 1972, authored a constitution making Buddhism effectively the state religion. Our left never recovered from such surrender. Indeed, in asserting that one could sell out the minorities and still call oneself left, it only made itself an example for the JVP to emulate.

I do not hold the left responsible for the horrors of the Rajapakse presidency. But what is it doing abetting them? Whose good is served by D. E. W. Gunasekera and Tissa Vitharana sitting with the government?

The complicity of the left, the lethargy of the UNP, helps justify the western human rights argument that, in the absence of the space for resistance in Sri Lanka, they must intervene. Since we cannot save ourselves, the west will save us.

This is a version, a revision, as my teacher Gayatri Spivak argues in her new book, Other Asias, of the old colonial notion, "the white man's burden." Read any classic work of liberalism - John Locke's Second Treatise of Government, for instance - and you will see that civil society, as a concept, is inseparable from civilization. To Locke, the savage - that's us - was incapable of instituting civil society because she lacked the capacity to civilize herself. That is how civilization, the establishment of civil society for the savage, became the justification for colonialism, an alibi for political domination and economic exploitation. In that precise sense, Sri Lankan 'civil society' groups are the consequence, continuation, of colonialism.

Things are not quite the same today. The white man, and woman, is still on a mission to save us. This time, however, a lot of us - whether in Sri Lanka or the west - are actively helping them. Some do so sincerely, enthusiastically, convinced that the west is right, that human rights is an unqualified good thing. (Before we rush to criticize this position, we should remember that Marxism also came from the west. The famous opening line of The Communist Manifesto exclusively addresses Europe.) Some do so for the perks, the money. (But then we should not  forget, as Rajan Phillips reminded Sumanasiri Liyanage on this very question: people who take money to wage peace are infinitely preferable to those who make money from war.)

Some of us do so critically, sometimes stifling ironic smiles. For the self-righteousness, tone-deafness, of human rights folks - whites usually, but not exclusively - in the west can be quite amusing. Not to mention the hypocrisy of western diplomats. Do we need mention, once again, that the Sri Lankan Prevention of Terrorism Act was modeled on the British - who were oppressing the Northern Irish at the time? And what gives any U.S. ambassador, anywhere, the balls to lecture anybody on human rights or democracy - when its own president was first elected by the Supreme Court and it continues to hold prisoners, in Guantanamo, without due process? When George W. Bush, in speech after speech, justifies torture ("enhanced interrogation techniques"). And still supports perverse Pervez Musharraf.

The west needs to be educated. That the history of human rights is intertwined with colonialism. That their credibility will decline further every time they continue to use a double standard. For, surely, no U.S. backer of human rights could be taken seriously if they are also - like just about every senator and congressperson - unreconstructed supporters of Israel's oppression of the Palestinian people. That they need to acknowledge, and legislate, social and economic rights as equally important as political rights.

At the same time, the non-west needs to change, too. China is the first example that comes to mind. But the Indian treatment of Kashmiris is not very different from the Sri Lankan treatment of Tamils. Muslims in Gujarat and elsewhere live in as much fear as Tamils in Colombo.

But it does not follow, while we wait for these things to happen, that we shut up and let the Rajapakse regime wage a war against the Tamils and, more generally, democracy. I mean: what plausible argument can the president fabricate to justify his continued violation of the 17th amendment? In his insistence that he, as president, is above the law, Mahinda Percy Rajapakse sounds exactly like George Walker Bush.

In its undisguised racism, its brazen brutality, its pathetically insecure inability to take even the mildest criticism, the sheer volume of its corruption, its utter ineptitude, its intimidation of the population at large, the Rajapakse regime is approaching the J. R. Jayewardene as the worst in our history. It is a sad feature of our moment that, like the SLFP then, the southern political opposition now is virtually non-existent. It is, if anything, even sadder that the Tamil opposition, today, has taken the monolithic, viciously murderous, exclusivist form of the LTTE. No one has let the Tamil people down more than they. 

In this context, the only ethically effective space of resistance to the Rajapakses has, for better and worse, become that of human rights activists; and I do not  just mean folks in Colombo. In Mannar, Jaffna, Vavuniya, Mutur and Batticaloa, ordinary people resist the Rajapakse ruffians and its paramilitary predators daily - in the name of human rights. We know their efforts count because the government screams hysterically in response. Or arrests those who publicize their work, like J. S. Tissainayagam, guilty only of the crime of expressing his opinion.

I am not an uncritical supporter of human rights. But if given a choice between just two alternatives - the Rajapakse regime and human rights activists - I will back the latter any day. They are in the business of tending lives. The Rajapakses, of destroying them. They are the human wrongs of Sri Lanka.  

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