By 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.
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.