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After a marathon ten day hearing into the Election Date case which had dominated public interest and had swept the COVID crisis to the backstreets of memory, the Supreme Court on Tuesday ended the mounting speculation with a downright damper.

They had seen enough of the trailer to decide the full movie would not be the stuff of Oscars, meriting their further viewing pleasure.

A five-judge Supreme Court bench headed by Chief Justice Jayantha Jayasuriya unanimously held that the submissions made in the fundamental rights petitions, challenging the dissolution of Parliament and the holding of elections on June 20, did not justify a full hearing; and accordingly refused the petitioners leave to proceed.

Thus the ruling effectively maintained the status quo which had existed prior to the filing of these petitions last month, namely, the President’s proclamation on dissolving Parliament on March 2 and the gazette notification by the Election Commission declaring June 20 as the date of the postponed polls.

The dismissal of the petitions left both issues untouched; and no judicial shadow of doubt was cast upon June 20 as the valid gazetted date of elections; indeed, the judicial pronouncement served only to tacitly reinforce the validity of June 20 as the election date.

On April 20 the Election Commission, by gazette notification, announced the general elections, originally scheduled to be held on 25 April, would be held on June 20. But, on 19 May, in a backward somersault adroitly executed in a Supreme Court room while five learned judges were hearing ‘election date’ challenges, the same three-member Election Commission has it made known to Court through its counsel that it cannot hold elections on that day.

The Commission’s Counsel Saliya Peiris P.C, rises from his seat and tells the Court that his client’s position is that it cannot hold the elections on the scheduled date. He informs court that given the present coronavirus crisis no elections can be held. However, were the Health Authorities to give the green light, an ‘all clear of corona’ directive, elections could be held between 9 and 11 weeks from the date of the positive directive.

Well, how do the authorities hell-bent on holding elections on June 20 confront the deadlock when the independent Election Commission, constitutionally charged exclusively with the holding and conduct of elections, equally hell-bent on giving the appointed date with polls the slip, dig in its heels, point to the COVID conflagration and refuse, point blank, to hold elections on June 20 until the corona fire is doused? What happens when an irresistible force meets an immovable object?

JAYANTHA JAYASURIYA: Chief Justice of the Supreme Court

The Supreme Court, whilst dismissing the petitions, did not opine on the prospects of holding polls during a pandemic. It followed the legal maxim that the courts have neither ‘the power of the purse or of the sword’ to enforce its judgements. After leaving intact June 20 as a valid date to hold elections, it wisely steered away from making it mandatory for the Election Commission to hold elections on that date. It was left to the parties to resolve the issue in accordance with the existing legal framework.

And does the existing legal framework have sufficient provision to empower the Commission to rise from its legal quandary?

The day following the Supreme Court decision which returned the situation to square one, the Election Commission met to formulate its plans. Addressing a news conference, the Commission’s Chairman, Mahinda Deshapriya, said the Director General of Health Services, Dr. Anil Jasinghe, had handed over a set of guidelines to the Commission that same day to be followed when conducting the polls.  He said: “After studying this, we will meet on Monday to decide on the election date. The Commission has neither the desire to postpone elections nor to get the blame for spreading the virus.’’

And, since it has become increasingly clear that the June 20 date for elections — which was indirectly held by the courts as a valid date — has now been cast to oblivion on grounds of pragmatism, what legal empowerment will enable the Election Commission to bear once more the torch to light election’s flame and reveal its new date?

Presumably, the Election Commission will rely on the same enactment it used to give legal cover when it postponed the April 25 election to June 20, namely, Section 24(3) of the Parliamentary Election Act.

The Act states that, ‘where due to any emergency or unforeseen circumstances the poll for the election in any electoral district cannot be taken on the day specified in the notice relating to the election published under Section 24(1), the Commission may, by Order published in the Gazette, appoint another day for the taking of such poll, and such other day shall not be earlier than the fourteenth day after the publication of the order in the Gazette.’

In other words, the Election Commission has the right to postpone the date of elections in the event of unforeseen circumstances, provided that the new date is 14 days after the order is published in the Gazette.  Thus, for instance, if the postponement is published in the Gazette tomorrow, the elections can be held on any date after the June 22, effectively ruling out June 20.

The election Commission told court last month it can hold elections nine weeks after getting the ‘all clear’ from the Health authorities. Now that it has received the green light, the elections, by the Commission’s own estimation, can be held in early August, provided, of course, a COVID second wave does not strike the country at that crucial time.

So does the Supreme Court decision to dismiss the petitions challenging the holding of elections on June 20, hail victory for the government? True, the petitions filed by the opposition have been flung to the Hulftsdorf bin and that must afford an aura of triumph to pervade the echelons of the governing party.

One already wearing it as his halo is SLPP’s Vasudeva Nanayakkara who, on Wednesday, demanded the head of one of the independent Election Commission members, Professor Ratnajeevan Hoole. Playing the player instead of the ball, Vasudeva called for Hoole’s immediate resignation from the independent Election Commission following the Supreme Court’s decision to reject all fundamental rights petitions filed against the conducting of 2020 parliamentary polls on June 20.

Speaking to journalists on Wednesday, Prime Minister Mahinda Rajapaksa also gave echo to the party’s cheer. He said that the decision meant that justice had been done and democracy was thriving under the new government despite the clamour by the opposition to postpone elections.

He said: “The incumbent opposition while in power had kept postponing elections. They are suffering from polls phobia. They are afraid of going before the people because they know what they did when they were in power and people would surely reject them. The opposition, fearing a sure defeat, wanted to postpone the general election. They thought that they could delay it by resorting to legal action, but in vain. Now they have to face an election.’’

Sorry to rain on the victory parade but despite the Supreme Court dismissing all petitions filed against the Government decision to hold elections on 20 June, wasn’t it just a pyrrhic victory for the government? Didn’t the end result of the Government’s legal triumph leave the Election Commission with the legal power to postpone, at its sole discretion, the scheduled June 20 election date to a date beyond it? To a date it had hoped elections could be held in a COVID free climate within a reasonable period of time? Hasn’t that prayer been answered today?

The government may have won the legal battle in court but seems to have lost the war on the ground.