17 December, 2017

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Penalty For Willful Violation Of Social Contracts?

By Chandra Jayaratne

Chandra Jayaratne

Chandra Jayaratne

Social contract theory is based on the idea of a contractual agreement between the individual and the state, under which the power of the sovereign is justified by a hypothetical social contract in which the people agree to obey in all matters in return for a guarantee of peace and security, which they lack in the warlike “state of nature” posited to exist before the contract is made.

Various philosophers have interpreted social contract theory. For example, John Locke believed that rulers also were obliged to protect private property and the right to freedom of thought, speech, and worship. Jean-Jacques Rousseau didn’t believe that in the state of nature people are warlike, but are undeveloped in reasoning and morality. Therefore, by surrendering their individual freedom, they acquire political liberty and civil rights within a system of laws based on the “general will” of the governed.”

The Constitutional Commitments

By article 3 of the Constitution sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise. By article 4. The Sovereignty of the People shall be exercised and enjoyed in the following manner:–

(a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum ;

(b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;

(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law;

(d) the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided; and

(e) the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament and at every Referendum by every citizen who has attained the age of eighteen years and who, being qualified to be an elector as hereinafter provided, has his name entered in the register of electors.maithri-ranil-wijeyadasa-pic-via-wijeyadasa-rajapaksa-facebook

Sovereignty of the People

The sovereign power including the powers of government lie primarily with the people; and the President, the Prime Minister and Cabinet of Ministers, and the Legislators derive their power on being duly elected by the people exercising their franchise; and they must govern for the benefit of the nation and its  people, in terms of the social contract created by the exercise of the franchise; thus the President and Members of Parliament must govern duly  honouring the promises made in manifestoes and other commitments made prior to elections.

Breaches of the Social Contract

Although the situation of there never having been a social contract is a fairly simple one, the situation of either deceiving another into thinking there is a social contract between them, or of entering into a social contract and then violating its terms, can be much more complicated, and much of law and government is concerned with dealing with such situations.

In his treatment of the subject, Locke tended to emphasize those violations of the social contract that are so serious that the social contract is entirely broken and the parties enter a state of war in which anything is permitted, including killing the violator. Today we would tend to place violations on a scale of seriousness, only the most extreme of which would permit killing. Some would even go so far as to exclude killing for any transgression, no matter how serious, but that extreme view is both unacceptable to most normal persons and subversive of the social contract itself, which ultimately depends not on mutual understanding and good will, but on a balanced distribution of physical power and the willingness to use it. Sustaining the social contract therefore depends in large part on so ordering the constitution and laws as to avoid unbalanced or excessive concentrations of power, whether in the public or the private sector”.

With no power of recall by the people of the already granted mandate, until the next elections, it is solely up to the people to demand due accountability and honouring of the social contract by those elected; and where the elected fail in such tasks, the people have a right to express their voice of protests, naming and shaming,  right to publicly advocate, agitate, and even take other legitimate actions for due enforcement  of  the social contract.

The Promise and the Consequential Social Contract

The promises made during the 2015 Presidential Elections and the Parliamentary Elections that followed were based on a core vision of establishing compassionate governance and a stable country, leading to showering prosperity on all citizens through sustainable development, peace and harmony and identification of equitable national priorities. These promises were founded on key pillars of eliminating bribery, corruption, fraud, money laundering, waste, and nepotism; and the enactment of a new constitution addressing rights of all communities, electoral reforms, instituting independent commissions; effective good governance, rule of law, equity and environmental protection. Thus a social contract came to be executed between the people and the new regime based on the aforesaid promises, which promises were duly witnessed by the leaders of the civil society who attested the contract.

The Delivery of Promises Embedded in the Social Contract

Twenty one months on from the creation of the social contract, the civil society leaders who witnessed the contract are aghast by the apparent willful violation of the contract by the incumbent President, Prime Minister, Cabinet and Parliamentarians.

The Proof of the Pudding

The key amongst the events and issues leading to the disillusionment of the civil society leaders that the social contract is being willfully violated are the following;

  • Leadership Public Pronouncements
    • justifying unequal treatment of Ministers and Legislators (for supporting the two third majority in parliament) and military personnel who liberated the nation, in the application of the rule of law and justice processes;
    • placing restrictions,  limitation and prior notification pre-conditions on law enforcement authorities, in dealing with the aforesaid select groups;
    • in some instances violating the independence and secrecy provisions the constitution and the applicable  laws;
    • undermining the law enforcement institutions, independent public institutions and regulatory bodies;
    • de-motivating and demoralizing honest, professional and  committed law enforcement officials
  • Leadership willfully frustrating the effectiveness and professionalism of on-going investigations and law enforcement actions in the case of publicly reported mega scams and allowing these scams and other unacceptable practices to be continued unabated resulting in the state suffering preventable long term losses along with millions of connected stakeholders
  • Ineffectiveness of Parliamentary Oversight Committees and politicized and party leadership driven probes by COPE and COPA within a process not strengthened and made effective to suit modern day needs
  • Arrogant and unacceptable behaviours of leaders, their cronies and support networks all of whom blatantly by-pass procedures and practices and undermine the chief accounting officers
  • The leadership  appointing to key positions of governance, persons alleged to have  involvement with alleged scams and persons being investigated by law enforcement and regulatory authorities
  • Continuing concerns over key state appointments blatantly tainted by nepotism and unfitness of the appointees
  • Justifying and promoting mega projects of the previous regime, which were  classified as unviable and corrupt when in the opposition
  • Continuing misallocation of scare resources for pet projects, ego enhancing projects and personal and crony benefiting projects and ignoring the essential basic needs of the voiceless persons, especially those at the bottom of the pyramid
  • The failure to act against the armed forces personnel and directors of key State enterprises who effectively block and fail to  support law enforcement led investigations;
  • The failure to initiate investigations on purported mega tender violations of the present regime and withholding transparent disclosure of investigations completed under the oversight of the current regime
  • The failure to return, land acquired on grounds of the prevailing security concerns, to persons dispossessed of personal property during the period of conflict
  • The failure to implement approved resettlement housing programmes for conflict affected persons, purportedly to promote preferred overseas contractor
  • Continuing leakages of revenue (Taxes, Customs Duty and Excise) especially those originated using the executive power and discretion of current set of leaders
  • Blatant violation of environmental and ecology protection accountability
  •  The continuation of the practice of awarding major state contracts on  bi-lateral negotiations and against unsolicited proposals, negatively impacting on competitiveness, quality standards and local value addition; and allowing the effectiveness of Swiss Challenge contract evaluation processes to be frustrated and massaged to suit pre determined contractors
  • Waste of national Resources on Tamasha’s events and unjustified spends with no effective national socio economic value
  • Leaders being surrounded by persons previously classified as unpatriotic and self seeking middlemen of the previous regime

Caution : Unexpected Spontaneous Public Reactions

Leaders must be aware that continuous willful violation of the Social Contract is bound to generate unexpected spontaneous negative public reactions  which will not only damaging to the public image of the Yahapalanaya leaders and may even lead to violent unexpected uprisings and acts of rebellion challenging the regime.

 

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Latest comments

  • 1
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    The Magnificent Seven! Look at the tough expressions and the hands ready for the draw. The Bad Hombres are in real trouble.

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      Chandra Jayaratne –

      RE: Penalty For Willful Violation Of Social Contracts?

      “Social contract theory is based on the idea of a contractual agreement between the individual and the state, under which the power of the sovereign is justified by a hypothetical social contract in which the people agree to obey in all matters in return for a guarantee of peace and security, which they lack in the warlike “state of nature” posited to exist before the contract is made.

      Do you think that Gon Sirisena Gamarala will abide by any social contract? He is Traitor.

      He has taken billions from the Rajapaksas to protect them and for them to keep the stolen billions, and Gon Sirisena Gamarala is paid off using the stolen peoples funds..

      The Proof of the Pudding? See how Gon Sirisena Gamarala is treating the Omissions.

  • 5
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    The SLFP campaigned the Presidential Elections of 1982/1988 and 1994 with the abolition of the Presidential system as their principal, and main commitment. All three Presidential candidates Mr. Hector Kobbekaduwa, Mrs. Sirimavo Bandaranaike and Mrs. Chandrika Kumaratunga made this the sheet anchor of their reforms. The PA manifesto of l994 says on page 9:

    I quote .

    ‘The Executive Presidential system which has been the bane of our country since 1978 will be abolished as a matter of the highest priority and the supremacy of the People’s political will restored by means of a return without delay to the system of Cabinet and Parliamentary Government. The contemporary experience of our country leaves no room for doubt that the concentration of an unparalleled volume of power in the Executive President without any viable or effective system of checks and balances, is wholly destructive of core values anchored in freedom, initiative and creativity in sum, all that is best in human nature individually and collectively. The Executive Presidency has debased and debilitated all other institutions (such as the courts, Parliament and the media) which had previously enriched the political life of the nation. The government is irrevocably committed to the re-empowerment of our people by restoration of the Cabinet system of government, headed by a Prime Minister having membership of, and responsibility to, Parliament, while a ceremonial or titular Head of State will act on advice tendered to him/ her by the Cabinet of Ministers. ‘

    After winning the Presidency, Mrs. Kumaratunga went further and set a deadline, all on her own. She stated grandiloquently as has become her style but getting stale by the day that it will cease by July 15, 1995. Two years and 4 months have gone by, not a word does she speak of this.

    In fact, it is to the credit of the Leader of the Opposition Mr. Ranil Wickremesinghe that he promptly offered the UNP’s 85 votes in Parliament to make up a grand 2/3rd needed to abolish the Presidency.

    With the SLFP’s and the President’s total commitment to its abolition we all assumed that the PA will gladly grab the opportunity.

    But, alas, what did we hear ? Vituperative abuse, invective and now total silence, and some vague references to it being linked with a doomed devolution package.

    From time to time, both President Kumaratunga and Prof. Peiris tell us that they genuinely and sincerely wish to abolish the presidential system.

    My own guess is that she will never abolish the presidency nor was she ever serious about it!To-day if one continues with this system it is purely for the sole purpose of enhancing the glory and the trappings of Presidential office to bolster the sagging image of leaders Whatever way you look at it there is NO justification for its existence or continuance. The Presidential system has outlived its usefulness. IT MUST GO.

    As Deputy Minister of Defence and Minister of National Security Lalith Athulathmudali experienced the frustration and hopelessness of having many of his important decisions reversed by the Executive President.

    By 1989, Lalith was totally convinced that the Executive Presidency was the most deadly conspiracy against freedom. He was humble enough to acknowledge that he had contributed largely to the collapse of Parliamentary democracy where the status of Ministers were diminished, politicians were neglected for officials and State terrorism prevailed.

    As much as he was culpable he was equally capable of realizing that it was time to call for a return to a fully fledged Parliamentary democracy. In one of the finest speeches in Parliament on the date Lalith resigned from the Cabinet he stated -I quote from Hansard:

    “There are a great many challenges facing our country. The fight against fear is upper most in one’s mind. Fear of whom? Fear of the Chief Executive and his agents. This fear has to be removed. I am glad my resignation has helped many to lose their fear.

    Our struggle is not against any individual, but it is against an institution. It is a crusade to restore the dignity and the powers of Parliament.”

    That was Lalith’s dream! Some others also have dreams, be they day dreams or, night-mares? But Lalith’s dream was a noble one.

    • 0
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      It cannot be better said.

  • 1
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    So Chandra Jeyaratna,
    What was the reason SWRD was killed by a Buddhist Monk ?
    Is it because SWRD & his team broke the contract with the majority ?

    Thanks Vaachalaya for enlightening CT readers with Athulathmudhalis confessions and in particular “state terrorism ” practiced / prevailed in SrLanka.

    “He (Athulathmudali) was humble enough to acknowledge that he had contributed largely to the collapse of Parliamentary democracy where the status of Ministers were diminished, politicians were neglected for officials and State terrorism prevailed “

    Thanks to CT too.

  • 2
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    Most of your writing goes to water because no one wants to listen to you. Start something practical like rescuing Sri Lankan University system from corruption and bad governance.University recruitment: First they find a person and then advertise according to his/her requirement and send aboard for their friends’ places for PhDs. More than 40% University Lecturers are relatives to each others and they give PG degrees to each other (Husband gives PhD to wife and girlfriend/mistress getting PG degree, sons, daughter and son-in law and daughter- in-law). Some Dept are family trees and even after retirement still they are in Universities under the consultant name.

  • 1
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    Why no one calls Chandra Jayaratne for a TV show, or interview or public speaking. Is he too raw for them? Why the Pathikada which claims to be open and balanced invite Chandra Jayaratne for an interview? What about Sangramaya, Satana, Pathikada etc? Hey are you guys in the TV and other media are scared of Chandra Jayaratne?

  • 0
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    Penalty For Willful Violation Of Social Contracts?

    There should be an act called ‘Rights & Responsibility’ to counter check the balances of the agreement. Will the rouge PM introduce?

  • 0
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    Dear Mr V. who wrote about Mr Lalith Athulathmudali,

    Lalith was not a saint. I knew him since 1968. If those of his generation were straight Mother Lanka would have had better politicians. He was another fraud who stole money through the shipping Corp etc. Why did Dudley Fernando leave for USA, leaving the chairmanship behind?Can you remember the undeclared bundles of money the Inland Revenue Officers found in his house when Ronny de Mel got his house raded? Those dreams were KIMBUL KANDULU- hypocritical crocodile tears. Those who had real tears were politicians like Sir D.B.Jayatilaka, Messrs M.D. anda, A Ratnayake and Gamini Jayasuriya.

    Thanks,

    Mudiyanse.

  • 0
    0

    Dear Mr V. who wrote about Mr Lalith Athulathmudali,

    Lalith was not a saint. I knew him since 1968. If those of his generation were straight Mother Lanka would have had better politicians. He was another fraud who stole money through the shipping Corp etc. Why did Dudley Fernando leave for USA, leaving the chairmanship behind?Can you remember the undeclared bundles of money the Inland Revenue Officers found in his house when Ronny de Mel got his house raded? Those dreams were KIMBUL KANDULU- hypocritical crocodile tears. Those who had real tears were politicians like Sir D.B.Jayatilaka, Messrs M.D. Banda, A Ratnayake and Gamini Jayasuriya.

    Thanks,

    Mudiyanse.

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