Columns

If all had been hunky dory and had events trotted to plan, the nation would have gone to the polls this coming Saturday morn to elect a new government.

All the necessary constitutional steps to give birth to a new parliament had been effected. Even the three month labour period had been induced by a presidential gazette notification on March 2 which dissolved Parliament at the midnight hour. The nominations were to be held between the 12th and 19th of March. The elections were to be held on April 25. And a new parliament to be delivered to the nation on the 14th of May.

OPERATION STREET ROUND UP: Around 200 homeless persons including those engaged in small scale trade, dependent on daily income were taken to quarantine centre in Sampur to prevent virus spreading

But, alas, it was not to be. The hell raising coronavirus swiftly blotched the best laid plans of the Government and the Election Commissioner to hold polls in a COVID pandemic.

Initially, even after the first Lankan on Lankan soil tested positive for COVID on March 11 and another local also tested positive the following day and another 41 had tested positive by March 17, the Government did not seem unduly perturbed at the growing tide but appeared hell bent on maintaining course toward April 25 election day.

But as daily reports alarmingly indicated that the coronavirus was no easy customer but mowed down all who crossed its path, the Government wisely shelved its elections schedule and creditably concentrated its energies on curbing COVID’s continuous rampage.

On March 19, the Elections Commissioner announced at a press conference that the general election scheduled for April 25 was to be postponed. He said, ‘’I have taken this decision considering the prevailing situation in the country owing to the threats posed by the coronavirus outbreak.’

He said he had discussed with the Health authorities, the WHO, National Operation Centre for Prevention of COVID 19 and all other relevant  agencies and officials before taking the decision to postpone the  election.

The Election Commission is authorized to postpone the election, as per the provisions of Section 24 (3) of Parliament Elections Act, which states that in the event of any emergency or unforeseen circumstances the election cannot be taken on the day specified in the notice relating to the election then it is required to be held after 14 days from the date of postponement.

Though the Election Commissioner is required by the same act to ‘hold it after 14 days from the day of postponement,’ Polls Chief Deshapriya said: ‘In this situation none can decide on a date. The day to hold the election will be decided by COVID 19 itself and the “National Operation Centre for Prevention of COVID 19.”

On March 31st the Elections Commissioner Mahinda Deshapriya wrote to the President’s Secretary stating: ‘Accordingly, if for some reason the present situation does not improve completely then it will not be possible to hold the elections before the end of May; and as a result a new parliament will not be able to sit before June 2 which may lead to a constitutional conundrum, the Election Commission has observed.’

On April 6th, the President’s Secretary P.B. Jayasundera replied to the Elections Commissioner in respect of letters sent by him to President Rajapaksa regarding Parliamentary Election 2020 and Date of Summoning of the New Parliament dated 31st March and 1st April.

In a terse letter which pulled no punches, it noted that the Election Commission had issued a gazette on 21st March whereby the polls scheduled to be held on 25 April had been announced. Furthermore therein it had been stated that the Commission will appoint a day coming after 14 days from 30.04.2020 as the day of taking of the poll.’

The Presidential letter then states: ‘Regrettably, it is necessary to point   out that in terms of Section 24[3] the Commissioner is obliged to specify another day for taking such poll in the Gazette issued under section 24[3], if the poll could not take place on 25.04.2020,’ and also that ‘the day for taking such poll has to be 14 days after the day on which the date of the gazette published under section 24[3] of the Parliamentary Elections Act.’

The letter, after having observed that as per the President’s advice ‘it is not possible at this point of time to state that the election cannot be held on or before 28 May 2020’, neatly and squarely puts the ball into the Election Commissioner Deshapriya’s court by bluntly stating that ‘the date for fixing the poll is the responsibility of the Election Commission and His Excellency has no wish to interfere with duties and obligations of the Election Commission.’

The letter also ruled out the possibility of the President seeking an opinion from the Supreme Court while suggesting that ‘in terms of Section 24[3] of the Parliamentary Elections Act, the time period giving notice of adjourned poll is not less than 14 days which implies that the poll which was postponed, could be held even on 15th day.’

The Election Commission which has still not formulated a response to the President’s stance, announced on Thursday it will meet on Monday April 20 to explore the possibilities of conducting the postponed general elections due to the coronavirus outbreak in the country.

But though the letter has clearly spelt out the legal position and the untrammeled right of the Election Commissioner to be the sole decider of the election date, the practical ground situation, no doubt, will dictate the feasibility of the Polls Chief’s choice. And the advisability to hold a poll with the coronavirus still running riot, when the mass health of the nation is under major threat and no sign in the horizon except forlorn hope that its reign in Lanka would soon be at an end and that we would see the last of it somewhere in May, would be determined by Executive action in consultation with health specialists.

Though the legal onus for deciding the date of elections falls on the Elections Chief, the constitutional duty of implementing it lies with the President.

Article 33 of the Constitution as amended by the 19th Amendment states:

33. (1) It shall be the duty of the President to (d) on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referenda.

Though in his letter to the Election Chief, Mr. Jayasundera states ‘that as per the President’s advice ‘it is not possible at this point of time to state that the election cannot be held on or before 28 May 2020,’ it is clear that, given the overall foreboding situation, it may be also not possible, as the polls date nears, to state at that point of time that the elections can be held on or before 28 May 2020.

For such a decision will be at the mercy of the coronavirus; and until and unless COVID’s strangulating grip round Lanka’s throat is dislodged, it will be near  impossible for any government to ‘create proper conditions’ to hold elections without risking  a massive outbreak of the infectious disease and sending more scalps to COVID’s altar.

For even as P.B Jayasundera says in his presidential reply to the Elections Commissioner, ‘’I need hardly emphasise that it is the right of the people of this country to exercise their franchise, which is their sovereign right,” it cannot be stressed too vigorously that all rights stand dwarfed next to the god given towering right to life, for sans the supreme right to life, does it matter that a thousand sovereign rights lie enshrined in the statute books?

And how does the COVID besieged landscape present itself to public view today? The country’s capital district Colombo along with Gampaha, Kalutara, Puttalam and certain districts in the Northern Province have been under a continuous curfew for over three weeks since March 24 and Kandy and Jaffna too have been added as high risk zones and placed under curfew with no respite in sight. No strategy to exit the curfew syndrome has yet been announced except to state that the authorities are still mulling over how best to quit.

The Epidemiologic report as at 11am on April 15 show there are 233 coronavirus positive patients with Colombo heading the list with 47. Kalutara is next with 45. In quarantine camps scattered around the countryside, there are 37. Puttalam is next with 35. Gampaha has 26, Jaffna has 13, Kandy 7 and Ratnapura 5.

The districts of Kurunegala, Kalmunai, Matara, Kegalle report 2 each while Galle, Batticaloa and Badulla districts report 1 each. The districts of Matale, Nuwara Eliya, Hambantota, Kilinochchi, Mannar, Vavuniya, Ampara, Trincomalee, Anuradhapura, Polonnaruwa and Moneragala districts boasts zero cases.

Out of the 233 cases, 3 are foreigners and 4 are under close observation. Out of the total of 233, it is glad to note 63 have recovered while, sad to say, 7 have die. As of April 15, there are 163 positive corona cases in Lanka while there are 144 suspected cases.

It is to the credit of the Government that the COVID threat that has so far claimed over 30,000 lives in the USA and over 13,000 lives in Britain, has so far been contained and that the medical system has so not been subjected to the maximum strain it can withstand. If this threshold is crossed, then, as it has happened in Europe and in the States, the chances are there will be a mass increase in the number of deaths in Lanka. In recognition of the timely action taken by the Government, Sri Lanka was included in countries that rated highly in giving proper leadership in the Global Response to Infectious Diseases (GRID) index which is designed to rank how efficiently and effectively the leadership of the country and the preparedness of its health system were in tackling the COVID-19 pandemic.

But in spite of the results, published in a paper titled GRIDTM Index: Tracking the Global Leadership Response in the COVID-19 Crisis by the Institute of Certified Management Accountants Australia, the question to ask is ‘’ Are we out of the woods yet?

Is the time right to drop our guard and put at risk the nation’s health when the COVID virus is still active and still in our midst? Has the social distancing policy, the enforced ‘stay at home’ policy, the shortage of food and the lack of money, all borne by the people with patience and fortitude, all designed to stifle the spread of the coronavirus and which upto now have proved encouragingly successful as the numbers show, to be abandoned and the barricades erected torn down in May just two weeks away for the sake of an election that can wait; and for which there has been no mass public clamour?

For the people know the time is not opportune to demand the holding of elections. They know it is a moment when there is a life and death battle on the nation’s hands. They know that to create a row over the polls postponement and demand a new one to be held in the midst of chaos, panic, fear and death would be folly; even as they don’t protest over the three week long curfew but, nevertheless, understand it is a sound necessary measure taken to minimise the COVID spread, done in the public interest to contain the body count.

But apparently all do not hold this view. For them there are opportunities to make political pickings even in a nation’s swan song. And some are quite prepared to angle the bait and fish for political gain in Lanka’ troubled waters.

On Wednesday, the chairman of the ruling Sri Lanka Podujana Peramuna (SLPP) Prof. G.L. Peiris fired the first volley to flatten the ground of curves and prepare it for a possible general election in May by accusing the opposition parties of trying to chicken out of the grand hustings by using the coronavirus as a feeble and sorry excuse.

While assuring – of course, of course – that the government wouldn’t do anything to endanger the lives of the people or undermine the ongoing battle to bring covid-19 epidemic under control. Prof. Peiris, who heads the SLPP National List, seemed raring for battle when charged the opposition of cowardice and declared: ‘The divided UNP have taken cover behind COVID 19 and are afraid to face the electorate. They would do anything to delay the election.’

But why shouldn’t the opposition groups take cover behind the COVID face mask and urge the government to desist from holding polls in an atmosphere heavy with a pandemic theat. After all, has it – and quite correctly too – not been the Government’s own mantra to ward off the COVID devil by religiously practicing ‘social distancing’ and taking China’s practical advice of ‘no mingling’?

Surely, it’s one thing to hide behind a non-existent COVID threat in fear of being humiliated at the polls and quite another thing altogether to ask for a delay in holding election when the entire nation is currently under COVID’s deadly spell?

Does it display signs of the opposition having got cold feet trying to chicken out of the race? Or, on the contrary, reveal that the Opposition is conducting itself sensibly and acting realistically? As evidenced by the Government’s own creditable decision to have made the triumph over the coronavirus the No 1 priority and that all else must be secondary.

With the task still to be achieved and miles to go before the all clear can be given, is the SLLP Professor Peiris, heady, perhaps, with a surfeit of optimism, being rash to espouse the holding of elections, implying that all will soon be well? Is he recklessly raising the hopes of the masses that the worst is behind them, when it is not, and unwittingly encouraging them to let slip their guard and to be less cautious? Is he asking us all to join in the chorus whenever he strikes ‘Who’s Afraid of the Big Bad COVID’?

Furthermore, he’s all for a South Korean type election, done perhaps, Gangnam Style.

Prof. Peiris said that he perused a spate of reports pertaining to South Korean elections and it was clear President Moon Jae-in took necessary measures to conduct the poll. In fact, they made special arrangements for coronavirus affected persons, too, to exercise their franchise.

True. The voters were all hand sanitized and given gloves and facemasks to wear at the booths where they voted. Immediately after each had cast the vote, the cubicle was sprayed with disinfectants and made sterile for the next voter. Can Lanka have the wherewithal to provide the necessary protection?

And what of the social mixing outside the polling booth before and after voting where on the appointed date, over 15 million registered voters emerge from their homes to cast their vote and to hobnob with their peers. And stand exposed to the infection, however briefly?

Furthermore, does Professor Peiris think the election is only about voters trudging to the polling booth, casting the vote and exiting? Has he given no thought to the immense logistics involved in the very holding of an election, before and after voting time?

Thousands of public servants will be commandeered for election duties, assembled at a common point, and transported to man hundreds of polling booths scattered countrywide. Thousands of party agents from each political party contesting will have to be present at the booths while election monitors and foreign observers, too, will have to be accommodated at each polling booth. Once the voting time is over the scene of action will move to the counting centres which would also be manned by hundreds of public servants. Security will have to be provided to ensure no vote rigging takes place.

To conduct an election at a normal time is a stupendous task as the Elections Chief Deshapriya will vouch. But to suggest that one can be conducted with the coronavirus running amok in the country without a virus fallout – for there is nothing to suggest yet that the pandemic will take a breather in May for Lanka to vote – you must be bally joking, mate!

Professor Peiris also said that South Korea was the first country to hold countrywide poll amidst the pandemic. South Korea reported over 200 covid-19 deaths and over 10, 500 of its citizens had tested positive.

Well, good for them. Merely because the South Korean government cast caution to the winds and held general elections to give a boost to its flagging popularity, does it mean that sovereign Lanka must ape South Korea’s reckless attitude to its citizens health and life and hold elections here?

The Friday update for South Korea is: Coronavirus infected cases, 10, 635. Recovered cases, 7829; Deaths, 230; New cases for the day 22; New deaths; 1.

And has the Professor of Law, apart from questioning his own expertise to opine on medical matters, asked himself whether it was correct of him to have passed judgement on the success of the South Korean Elections, held during a pandemic, before the 14 day incubation period following the elections had lapsed?

Meanwhile, CNN reported on Thursday, a total of 141 South Koreans who had apparently recovered from Covid-19 have tested positive again, South Korea’s Centre for Disease Control and Prevention said on Thursday. KCDC deputy director Kwon Joon-wook said the agency did not know what caused the people to re-test positive and was investigating.  Kwon also said that the government is studying cultivated samples from the patients to determine whether the cases could be contagious. Kwon said the study will take about two weeks from today.

Professor Peiris was also asked whether the SLPP was trying to justify parliamentary election amidst crisis caused by the highly contagious virus. His reply was that he merely pointed out nationwide polls was conducted in a country that had been severely affected by the deadly  virus.

The answer to this maybe found why the South Korean Government of Mr.Moon was desperate to seek a new mandate two years ahead of its time.

As the New York Times reported on Wednesday:

The prospects for Mr. Moon’s party did not look good​ until less than two months ago​. He and his party’s approval ratings had been slumping​ over a decaying job market, stalled diplomatic efforts with North Korea and scandals involving Mr. Moon’s closest allies.​ ​The coronavirus ​had initially appeared to work against Mr. Moon and his party​​, as they were criticized for underestimating the threat.

But their political fortune shifted once President Moon’s government ​began ​testing large numbers of people in February to screen out patients for isolation and treatment. ​South Korea, was once home to the world’s second-largest outbreak, with as many as 813 new cases a day has reported fewer than 40 new ​patients daily.

Perhaps Professor Peiris, instead of sitting on the fence and saying he is not trying to justify parliamentary election amidst a crisis caused by the highly contagious virus but was merely pointing out that nationwide polls was conducted in a country that had been severely affected by COVID, should spend his time  more profitably studying how Mr. Moon’s ruling party overcame its initial unpopularity over their faulty handling of the crisis by shifting gear and beginning aggressive  testing, enabling it to romp home to a landslide win. Perhaps, the same formula could be applied to his own party’s approach to ensure that, when the right time dawns for elections to be held, the two third majority win it so desperately seeks, is in the bag.

One way out of the polls impasse is for the President to issue a gazette proclamation revoking the Gazette proclamation he issued on March 2   dissolving Parliament and announce the new Parliament will meet before  the three months is up on June 2.  If the President revokes the dissolution order,  the life of the 2015 parliament will automatically be extended to the date it first met after the2015 August 17 election which is September 1st.

This is expressly provided by the 19th Amendment which states that: Article 62 of the Constitution is hereby amended by the repeal of paragraph (2) of that Article, and the substitution therefor of the following paragraph:- “(2) Unless Parliament is sooner dissolved, every Parliament shall continue for five years from the date appointed for its first meeting and no longer, and the expiry of the said period of five years shall operate as a dissolution of Parliament.

Revoking the original March 2 dissolution order and recalling Parliament to pass money bills and give a legal basis to certain anomalies prompted by the crisis and contemplating holding elections in the extended time period automatically provided maybe a far better way out of the current impasse than going to the polls in May. All opposition parties have called for the polls to be delayed on account of health grounds. Civil rights group PAFFEREL, too, has called for elections to be put on hold. So has the Arch Bishop of Colombo Cardinal Malcom Ranjith joined in the call to echo his flock’s concerns. He said this week that on no account should the general elections be held until the coronavirus is completely eradicated from Lanka and a reasonable period of time has passed thereafter.

The exit strategy formulated to revive the economy and to ensure the return of civilian life to normalcy which is in disarray due to the COVID – 19 pandemic is to be announced during the weekend. On Wednesday, President Gotabaya Rajapaksa discussed rebuilding the economy in the face of the current challenges with the secretaries to the ministries where the focal point of the discussion was on returning to normalcy. President emphasized the need for the public and private sectors to recommence its business activities. The responsibility of ensuring the public adhering to safety regulations and preventing large gatherings was entrusted on the secretaries to the ministries as well as heads of institutes once the curfew is eased.

The task of returning to normalcy is still in the discussion stage. But, no doubt, Lanka is on the march. No need to spur it into a sprint and jeopardise the carefully laid exit strategies by holding polls in the rush.

Lanka, which reported 5 more COVID cases on Friday after reporting none on Thursday, is still not out of the woods. Before getting bogged down in the everglades, it is necessary to exercise an abundance of caution and possess a stockpile of patience.  Remember that this thrice blessed island has been relatively fortunate compared to other countries hit by COVID.  Since the first local was detected on March 11, there have been only 7 deaths in five weeks. Contrast this with countries like Italy, Spain, Britain and America where each nation’s death toll has surpassed over 1000 a day.

When we should be counting our blessings that we have been thus spared the full force of the COVID invasion, Professor Peiris is counting the number of seats his party, the SLPP, can muster at a snap May election with the coronavirus still stalking the land with its scythe. Such self-confidence, such arrogance, such a loss of contact with reality is to invite hubris – the anger of the gods. It is wise to note that once the sluice gates are open and the nation is swamped by a deluge of coronavirus infections, there can be no turning back to shut it.