My Letter to the Gleaner

PM's lame force majeure excuse(Published: Tuesday | August 4, 2009)

The Editor, Sir:

For Prime Minister Bruce Golding to assert force majeure as an excuse for our financial crisis, he must show that the JLP took reasonable steps to minimise this crisis.

Prime Minister Golding recently used 'force majeure' to explain that there was nothing he could have done to prevent our crime, unemployment, housing and particularly our economic crises. Is this a reasonable claim or an excuse for poor planning and even more importantly, poor performance?

Force majeure is a French term that that literally means "greater force". When this term is found in a contract, it excuses a party from liability if some unforeseen and overwhelming event beyond the control of that party is the cause for non-performance of the contract.

Typically, force majeure clauses cover natural disasters or other "acts of God", war, or the failure of third parties - such as suppliers and subcontractors - to perform their obligations to the contracting party. It is important to remember that force majeure clauses are intended to excuse a party only if the failure to perform could not have been avoided by the exercise of due care by that party.

The Golding administration is attempting to explain, excuse and free his government from fault, explaining that the extraordinary circumstances caused by the global financial meltdown just over-whelmed Jamaica and prevented our government from fulfilling its obligations.

What I think Golding is forgetting is that this clause cannot be invoked as an excuse for negligence, as his party could have reasonably avoided the degree to which the financial crisis has impacted Jamaica.

Before we were able to predict hurricanes, ships lost at sea could have invoked the force majeure excuse, but now if the Government does not warn seagoing vessels of an impending storm, or if the captain does not check the weather before taking passengers to sea, the predictable disaster could not be said to be an act of God. Clearly, our current weather forecasting technology should have predicted the impending disaster if procedural or reasonable preventive steps were followed.

In the old days my grandmother blamed a crop failure on the will of God. Now that we have so much more information about what will ensure a good harvest, a force majeure excuse cannot be invoked if the planter did not select the right crop, planted the right time of the year, watered the plants, fertilised and sprayed for insects and disease. It does not mean that we should pray any less but we should apply the knowledge that experience and science have provided - praying as if all depended on God, but planning, implementing and working as if all depended on us.

From my perspective, in order for government leaders to invoke a force majeure excuse, the citizens of Jamaica must judge whether the problem could have been helped or avoided. Did our government contribute to the crisis or was this crisis unavoidably caused by external forces? If the crisis was foreseeable, could the sitting government have taken reasonable steps to mitigate the crisis?

Running the government like a perpetual crisis machine leads to bad policy and public fatigue. Borrowing and spending our way out of debt is madness. We cannot solve our debt crises by more borrowing and spending recklessly like we drive. This will only lead to bankruptcy and the further ruination of our country.

In our hearts, each of us already knows this and no amount of wishing will make it go away. Common sense should tell us that rather than providing a better and brighter future for our children, we are saddling future generations with this humongous debt that will effectively enslave them to our creditors and place our country into economic servitude.

For Prime Minister Bruce Golding to assert force majeure as an excuse for our financial crisis, he must show that the JLP took reasonable steps to minimise this crisis. Was this foreseeable, and did the Government appropriately give us data so we could have mitigated our losses? This is like not exercising, living on a diet of patties, jerk pork and doughnuts and then claim force majeure when the inevitable heart attack strikes.

My sense is that our sitting government has no substantial plans in place to address our financial crises other than to borrow more funds to pay debts. If Mr Golding did not look both ways before he crossed the street, could he use a force majeure excuse when a truck runs him over?

I am, etc.,
BASIL WAINE KONG
Bwaine@bellsouth.net