Court to decide whether 2013 election cases to be heard in tandem

Judge Lorraine Schembri Orland heard sharp exchanges of views by the lawyers representing the PL, the PN, as well as the Electoral Commission in a sitting this afternoon.

The Constitutional Court had annulled a previous decision by the First Hall of the Civil Court, in which that court ruled in favour of the PN to order the Electoral Commission to award two additional seats to the Opposition due to a counting error in the 2013 election.

The Constitutional Court found that Labour should have been included as a party to the original case, and the case was then sent it back to the First Hall to be heard again.
Subsequently, however, the PL filed a new claim against the Attorney General, the permanent secretary within the Justice Ministry, the PN, the Electoral Commission, the registrar of the Law Courts and the MPs affected by the counting error. It objected to a passage in the decision of the Constitutional Court, in which it held that the First Hall had jurisdiction over the case.

The PL is complaining that the Constitutional Court had deprived it of the opportunity to make oral submissions on that issue, thereby breaching its right to a fair hearing.

The PN’s argument centres on an error which took place in the counting of votes on the eighth district, when a packet of 50 votes for PN candidate Claudette Buttigieg was allocated to PN candidate Michael Asciak, by mistake.

Asciak was eliminated and Labour’s candidate Edward Scicluna was elected on that district. Likewise on the 13th district, Labour’s Justyne Caruana was elected as a result of 10 votes belonging to PN candidate Frederick Azzopardi going missing. The PN then took the Electoral Commission and the Attorney General to court on the basis that the mistakes had affected the election result, requesting the court award it two seats.

However, when the Constitutional Court annulled the previous judgment, it did not confirm the part of the previous judgment establishing which court had jurisdiction.

Lawyer Paul Borg Olivier, on behalf of the PN argued in court today that the case ought to be heard again from the beginning and deal with all issues, including that of jurisdiction.
“I cannot understand how we have the Constitutional Court, entrusted with the protection of human rights, now being accused of breaching the human rights of the Labour Party,” Borg Olivier said.

The PN is contending that a court cannot stop and wait for the outcome of another case, as constitutional actions are urgent, by nature. Were the court to wait for the outcome of another case, it would create a dangerous precedent, said the PN lawyer. “If anything, it must hear them in tandem.”

But the PL’s lawyer, deputy leader for party affairs Toni Abela, is insisting that the cases be heard consecutively.

He asked the court to imagine a scenario where one case were to be decided in favour of the PN and another court to find for the PL’s arguments – or even simply, where one case were to be decided before the other. He told the judge that this would create a situation of uncertainty with regards to the highest institution of the land.

“This is not a light matter,” said Abela. “This is about the constitution of Parliament.”

Lawyer Paul Lia, also appearing on behalf of the Labour party, pointed out that this case created the possibility of the other case being impugned and reminded the court that this case would be the subject of intense scrutiny, both inside and outside the courts.
On behalf of the Electoral Commission, Professor Ian Refalo opined that the two cases were inextricably linked and that the only logical solution was that the two be heard in tandem, but at the same time, asked what would happen if one court decided that the fundamental rights of the PL had been breached and on the same day the other court decided that the PN should get two additional seats in the House.

Attorney General Peter Grech agreed, saying that one cannot ignore the decision of the Constitutional court to dismiss the plea, which he said binds all parties who made that plea.

The court will issue its decree on the matter by 21 July.