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Tomorrow the Supreme Court is set to take up several fundamental rights applications challenging the decision of the Election Commission to hold the postponed general elections on the 20th of June in the midst of a raging coronavirus conflagration which has kept a fear stricken populace locked behind closed doors under a two month long curfew and brought the economic life of the nation to a grinding standstill.

The petitioners’ contention, among other issues, is that the Gazette by which the Eighth Parliament was dissolved on March 2, fixed the date for the first meeting of the Ninth Parliament for the 14th of May. They contend that while the said Gazette remains in place, a new date for the election of the Ninth Parliament cannot be fixed beyond the 2nd June 2020.

They argue that under Article 70(5) of the Constitution, it is mandatory for the new Parliament to meet within three months from the date of dissolution.

They submit that if the 2nd March dissolution is permitted to stand, this would have required the new Parliament to meet for the first time by the 2nd of June. Thus, it is claimed, a decision to hold the election on the 20th of June will be unconstitutional.

That is the basic legal argument that will be laid before a five-member Supreme Court bench this Monday and Tuesday for their Lordships’ wise determination. If accepted, the petitioners have sought an interim injunction against the holding of the election on June 20.

The other matter that their Lordships are requested to consider is one that probably borders on the extralegal. And it is this.

The petitioners, referring to the presently planned June 20 poll, state they have observed that it is impossible to hold a free and fair election in the context of the COVID-19 crisis. They claim that the health risk would seriously impede campaigning efforts and voter turnouts, and it would increase the risk of the spread of the virus.

In this instance, the matter may well lie beyond the ambit of legal grounds and even extend to the weedy field of predicting future events where the jurisdiction of the court is invoked to adjudicate on the speculation that the same set of circumstances existing when judgement is prayed for and delivered, will exist a month’s hence on polling date.

And what relief do the petitioners’ seek? They have requested the Supreme Court to declare that their fundamental rights — under Article 12(1) All persons are equal before the law and are entitled to the equal protection of the law and Article 14(1) (a) the freedom of speech and expression including publication — have been violated because lacking a functioning Parliament for more than three months undermines the sovereignty of the people and the rule of law.

It should be noted that on May 6, the day these petitions were filed in the Supreme Court, the three months period since the dissolution of Parliament on March 2, hasn’t still lapsed. And will not lapse until the June 2. Thus ‘lacking a functioning Parliament for more than three months undermines the sovereignty of the people and the rule of law’ will only occur after the June 2.

Meanwhile the man at the epicenter of it all, Elections Chief Mahinda Deshapriya, met with 34 party representatives on Tuesday and declared boldly that while his office was prepared to conduct the general election it will not play dice with human lives.

The people, he said, would be denied of sovereignty without elections and sovereignty was the inalienable right of the people. But, he declared, ‘the Election Commission would not proceed with elections over the dead bodies of people.’

True. The Right to Life is superior to the Right to Vote. For without life, there cannot be the exercise of the vote. This is not the case of ‘Give me liberty or give me death.’ No need for the dramatics here, when all that is asked for is a temporary postponement for the holding of elections due to the consensually recognized COVID threat to all citizens of Lanka, irrespective of their party colour, race, religion, caste or creed.

What is sought for is a short delay to hold the elections, when the circumstances are more conducive, when the threat to human life is minimal. Not a permanent ban on holding polls and banishing parliamentary democracy to a memory, with the jackboot of a dictator invited to stamp his footprint on the island instead.

The UNP, the SLFP and many other political parties that attended Tuesday’s meeting had called for a speedy final decision on whether the postponed Parliamentary Polls could be held on June 20 or not. UNP General Secretary Akila Viraj Kariyawasam had pointed out that it was the third time they had met in recent weeks, but no finality had been reached with regard to the election date.

But it was a matter the Elections Chief understandably kept close to his chest. Now that he has announced it officially and gazetted it, it is not for him to now show signs of vacillation or reveal himself reduced to a quivering mass of jelly as the day draws near to implementing it.

But he warned of a major factor that must also command the attention of the authorities. He said the general election will cost Rs. 7 billion for which money had been allocated. But if the election was to be held on June 20 as planned under a COVID cloud, it would cost double. The price tag will be Rs. 14 billion.

Thankfully, the decision as to whether the June 20 election can be held or not has been taken out of the hands of all, off the conscience of all should deaths occur as a result of holding it, and placed in the Supreme Court domain where, as prayed for by the petitioners, the question will hinge on whether the scheduled June 20 polls can be validly held constitutionally without the March 2 proclamation being first revoked and the whole process staged again from scratch.

In the event a new proclamation by the President is issued revoking the earlier proclamation, the otherwise dissolved Parliament will spring back to life and will remain so until it completes its five year term on September 1, or until a proclamation is made before that date, dissolving it and calling for elections.

Though the holding of elections have ranked high on the government’s agenda as it desperately seeks to consolidate its power by a Parliamentary two thirds victory to match its presidential triumph, the need to rouse the dormant economy from its enforced sleep, has not been lost whilst scrapping the bottom of the Treasury’s coffers, which, no doubt, will soon be bare.

ON THE STREET TO NORMALCY: Under the cover of a 24 hour indefinite curfew, Colombo is encouraged to emerge from locked doors

Heads of States have long realised that, while the main focus should be on saving human lives and combatting COVID to extinction, to ignore the country’s economy and shove it under the carpet as something that can take a backseat until COVID is first dealt the death blow, would be to commit a folly on a grand scale.

‘The people at the cost of the economy’ would severely affect the people when the money runs out with the economy in shambles and the nation bankrupt. ‘The economy at the cost of the people’ will in turn hit the economy with no one to run it with millions dead or dying of COVID.

This is the typical Catch 22 situation Lanka along with the rest of the world, presently face.

But the gamble will have to be taken. And it was taken this Monday, when the Government dared to limp on the road to normalcy by opening its departments and offices and requested  the private sector to do the same even though it was done under a 24/7 indefinite curfew in Colombo and Gampaha and public bus transport was limited to the limited Government owned buses.

Did the gambit pay off? The nation will have to wait, with fingers crossed for a fortnight when the incubation period for the coronavirus ends and the COVID fallout, God forbid, may start to make its deadly appearance. If it does indeed erupt and the numbers spike, then the Government would have lost its daring wager and Lanka will be done for.

Short of fortune telling, only one certainty exists. The certainty that none can foretell which way the corona wind may turn, whether it will intensify or slacken, come mid-June.

The Government’s stance seems to be in favour of holding elections on June 20, come what may. The Election Commissioner, having discharged his constitutional duty of announcing the election date, seems to have got cold feet at the frightening prospect of actually holding it nationwide under the all-encompassing cloud of a coronavirus pandemic which shows no signs of abating.

And a frightened, fatigued, confused and locked down people, far removed from the decision making process, with Parliament itself shut down and in a state of abeyance, remain rendered hopeless; and, amid the conflicting winds that gustily blow around them forging their future fate, lie forlorn and helpless, cutting a pathetic sight no different from a beetle nut trapped betwixt the jaws of a nut cracker.

Only the Supreme Court, the last refuge of a people’s despair, can end this sorry state of affairs with its legal wisdom which will, undoubtedly, flow from its determination of the ‘polling date’ petitions. It is to be hoped it will be rendered soonest, before the Ship of State, caught in the corona storm, loses its legal anchor and flounders on the rocks.