By Thangamuthu Jayasingam – 

Prof. Thangamuthu Jayasingam

A “force majeure” clause (French for “superior force”) is a contract provision that relieves the parties from performing their contractual obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible.

The social contract that exists between the elected personalities and the people has its own duties, obligations and regulations. However when this contract is unable to be implemented or broken in a circumstance beyond their control making performance impracticable, then the Force Majeure condition becomes applicable. Though this may be not be listed in the contract this is the most applicable principle at the moment to accommodate the needs of the country the people who are dismayed and disappointed over the elected representative to be exact all 225.

Let us look at Options;

1) The leaders of the parties in parliament (who obtained the mandate from the people) will soon need to elect the President from parliament or otherwise (need not be from the members of the parliament as the parliament had become ineffective by default). In other words, one who has not been in the Parliament may be more acceptable to the people than the 225 in parliament who are jointly responsible for the calamity at present, which had been expressed in their statements.

2) When the cabinet withdrew with the prime minister on May 9 the ruling party had withdrawn from the administration of the country. It is illegitimate for them to be in a government that is later formulated. Now the situation had worsened and the peoples revolution, those who really have the power, have taken over or spoken on that matter. This implies that the new president and prime minister should not be from the ruling party which has lost its mandate.

3) The President to be elected by parliament as a temporary provision until the election needs to give priority to the revision/formulation of a new constitution and to facilitate the reform process based on the priorities that have emerged from the people as listed below;

a) Removal of the executive presidential system as a whole and revert to the Westminster system

b) Non-executive President as before with powers to run the country under emergency with sanction of the supreme court; equivalent powers only would be granted to the governors of provinces.

c) Mixed system of election to be in operation or the one which was conducted the last time until the amendments are made.

d) The establishment of a constitutional assembly to make the new constitution which accommodates the needs of the minorities, devolution of governance etc to ensure better governance with removal of executive powers in the Governors.

e) Limiting the powers of the center to ensure that excess misuse would be minimized with macro-level consequences as with the fertilizer ban and avoid another people’s revolution.

f) Independent commissions which were to be strengthened under 21/22^nd amendments and others to be included within the new constitution.

g) Establishment of Permanent secretaries as in the period prior to the 1972 Constitution to ensure continued administration in the country as the iron frame of the country instead of being transferred at the will of each newly appointed minister. This depoliticizes the administration as a whole.

h) Others of importance are specially the powers of the executive, legislature and judiciary to be defined and separated with checks and balances for democracy.

4) Formulation of a committee of professionals for the planning of an exit strategy from the present economic debacle and financial disaster, whose recommendations will be implemented by a Task Force comprising the president, prime minister and the team of the party leaders who would ensure administration until national elections are held followed by the appointment of a fresh government. Providing power to the ministry secretaries to run the different institutions would unburden the task force regarding day to day administration.

These suggestions will also accommodate the values of the People’s Revolution referred to as the “Aragalaya’ in context and their demands for change of system with removal of President and the Prime minister. It accommodates the changes that have been contemplated or agreed and under discussion to be accommodated easily and faster than through the election in parliament process. This will also strengthen the conviction of the international community that the country has a plan for the future and that would ensure assistance for us to get out of the economic disaster, which is the need of the hour.

Some may view these suggestions as being contrary to the existing systems and practices. But as the principle of ‘Equals need to be treated equally’, existing system approach is applicable only in normal situations, fresh thinking and strategies are necessary for abnormal conditions as today—hence Force majeure is the Need of the Day which is more relevant and applicable to the present context of uncertainty.

After all it is the people who are sovereign and it is their wish that is prime.

*The author is an Attorney at law. He served as Professor of Botany and Vice Chancellor at Eastern University and Chairman of Public Service Commission of Eastern Province.