PN loses elections’ constitutional case, must file case anew

Constitutional case filed by PN against electoral commission to start all over again after third-party appeal by Labour Party in Constitutional Court sends case back to drawing board

A packet of 50 votes for PN candidate Claudette Buttigieg (née Pace) was transferred to PN candidate Michael Asciak, who got eliminated resulting in the election of Labour’s Edward Scicluna instead.
A packet of 50 votes for PN candidate Claudette Buttigieg (née Pace) was transferred to PN candidate Michael Asciak, who got eliminated resulting in the election of Labour’s Edward Scicluna instead.

A Constitutional case filed by the PN against the Electoral Commission was sent back to square one today Friday on a technicality, after the court ruled that the Labour Party should have been involved as a party to the case from the outset.

The PN must now file the case anew.

The outcome was down to a successful third-party appeal from the Labour Party's deputy leader for party affairs, and lawyer, Toni Abela.

Prime Minister Joseph Muscat had appealed the Electoral Commission's decision to grant the Nationalist Party an additional two seats in February 2015, after the First Hall of the Civil Court in its constitutional jurisdiction declared that the PN should take two additional seats to hold 32 seats in parliament, with Labour retaining its 39 seats.

Opposition leader Simon Busuttil had immediately called on the Electoral Commission to respect the court’s decision but the judgement was appealed.

The court, presided by Judge Jacqueline Padovani Grima, heard how a batch of 50 first preference votes belonging to then PN candidate Claudette Buttigieg were mistakenly placed in the pigeonhole of PN candidate Michael Asciak, also a contender on the eighth district.

Electoral Commissioner Vanni Ganado told the court that the mistake most probably occurred in the first count. Given that the vote difference between Labour candidate Edward Scicluna and Buttigieg on the first count was of just eight votes, Ganado said the eighth district should have elected Buttigieg, and not Scicluna.

According to the court, this also meant that Labour should have elected a total of 38 seats while the PN should have elected 27, as opposed to the 39 seats and 26 seats respectively.

Electoral law allows a recount when a specific count is still open. A count cannot be reopened if the following count is already underway. In this case, the batch of first preference votes was only found when the counting assistants started sorting Asciak’s voting ballots. A protest was then lodged.

In her judgment, Padovani Grima had used a mathematical formula -listed in the law- to determine the number of seats,based on the principle of proportional representation.

The judgement reduced the seat majority by two and the redress as determined by the court adds two seats. If the judgement were to be implemented, the court would have increased the total number of seats in parliament from 69 to 71.

Louis Gatt, head of the Labour Party electoral office, told the court that the current electoral law was amended in 2007 to better interpret the result of first count votes and seats in parliament. “As a result of this amendment, once the results are published and the parties see how many candidates were elected, a mathematical formula kicks in to adjust the number of seats the party with the lower number of elected candidates should hold. The numbers must obviously be odd as parliament can’t operate on an even number,” Gatt said.

He admitted that one can never be precise but the system adopted so far was the one that mostly guarantees a fair representation of number one votes obtained and seats in parliament.

Gatt added that the vote difference between Labour and PN during the 2008 election was of just 1,500 votes. “The two sides obviously can’t hold the same number of seats and the PN had a one-seat majority even though the 1,500 votes in reality reflect ‘half-a-seat’. This is the system that we have and there are regulations that must be followed.”

On his part, Hermann Schiavone, a PN candidate and electoral expert, said that the results of past elections made no difference. “There is one, clear formula which applies depending on the majority achieved.”

Schiavone agreed that despite the “improvements” over the years, there still remained loopholes. “We always discover something new … even in this case, where there’s only one runner-up to fill in one of the seats. We have yet to see who the second candidate will be.”