[WATCH] Judgement on PN’s contested parliamentary seats for 7 November

Final submissions are heard in the Constitutional case over the allocation of seats after the last general election

PN leader Simon Busuttil leaving the law courts after the hearing
PN leader Simon Busuttil leaving the law courts after the hearing
Judgement on PN’s contested parliamentary seats for 7 November • Video by Chris Mangion

A final judgement on whether the Nationalist Party (PN) should be awarded two additional seats in Parliament will be delivered on 7 November, as the Constitutional Court today heard final submissions in the Constitutional case filed by the government and the Labour Party (PL).

The Constitutional case was filed by the PL after Madame Justice Lorraine Schembri Orland, presiding the First Hall of the Civil Court in its Constitutional jurisdiction at the end of May, had upheld the PN's arguments in that case.

Before Schembri Orland, the PN had requested that it be given an additional two seats in parliament, which it had lost out on due to a vote-counting mistake, arguing that as a result Claudette Buttigieg had been deprived of her right to be elected by quota.

That court had held that the previous result gave an incorrect interpretation of the will of the electorate and should have given 38 seats to the PL and 31 to the PN. This constituted a breach of the PN's rights under Article 3 of the 1st Protocol to the European Convention, as incorporated in Chapter 319 of the laws of Malta, it said. The court ordered the Electoral Commissioner to correct the error and declare two more PN candidates to have been elected within a month.

This morning, MPs from both sides of the house, including the Minister for Justice, the Minister for Finance and the Leader of the Opposition packed the courtroom, as Chief Justice Silvio Camilleri, Judge Giannino Caurana Demajo and Judge Noel Cuschieri heard final submissions from all parties involved in the case.

After the sitting was over, Opposition leader Simon Busuttil criticised the presence of Justice Minister Owen Bonnici in the courtroom, insisting that it created “undue pressure”.

PArliamentary secretary Deborah Schembri and economy minister Chris Cardona exiting the law courts with lawyer Robert Abela (second from left)
PArliamentary secretary Deborah Schembri and economy minister Chris Cardona exiting the law courts with lawyer Robert Abela (second from left)

“The presence of the justice minister in the courtroom was shocking but I am sure that the court will ignore this undue pressure,” Busuttil told reporters as he emerged from the law courts. He added that the government had delayed the process by over three years, referring to the Labour Party's decision to appeal.

Ministers Edward Zammit Lewis and Chris Cardona, along with parliamentary secretary Deborah Schembri told reporters that they would not comment about the case given that it was still being studied by the courts.

Schembri went on to add that the principle of proportionality must be respected.

PN lawyer Paul Borg Olivier highlighted that the case was about an alleged breach of the right to free and fair elections, “a simple one, demanding a remedy for this violation.” The previous decision by the Constitutional court in March was to an action filed only by Claudette Buttigieg and Frederick Azzopardi. In that case the court had only dealt with the issue of juridical interest and it was right to underline this. It didn’t overrule the previous court's decision, argued the PN lawyer.

Aside from the right to free and fair elections, “there is only one other article that is involved,- article 52 of the Constitution that enshrines the mechanism that reflects the political development of our nation. The Constitution expressly wants strict proportionality and the Single Transferable Vote. Political development of Malta over 92 years has said that the seat is the deputy's. It recognised measures to avoid a repeat of the 1981 perverse result whereby a party that enjoyed the majority of the will of the electorate did not have the majority of parliamentary seats.”

“Even the party that obtains the minority of the votes must still receive seats reflecting it,” Borg Olivier stressed. “There is a difference between the case before this court as a reviewer of the electoral process and this court that is deciding on a violation of rights. The court must decide whether the will of the electorate was respected.”

“Not only must we establish whether a human mistake had been made, but also whether the mistake had unbalanced the mechanism that normally safeguards the will of the electorate.” The court must ensure that no future violations take place, argued the lawyer. “We aren’t attacking the system but asking the court to protect the system that the electoral commission was unable to protect.”

Although the mistakes were small oversights, the impact was enormous and the responsibility for supervision of vote-counting remained that of the Electoral Commission, he said.

“The European Court had held that even if you form part of a party, the seat belongs to the MP. We are also talking about Edwin Vassallo who also has the right to be seated in Parliament. It would be illusory to talk of democracy if you can always be unseated at any time.”

“We are asking for the status quo ante, for the court to give back that which is ours...We aren’t varying that which is sanctioned by the Constitution, we never asked for anyone to be removed. Parliament is dynamic, we have MPs who brought down government single-handedly, MPs who have broken off to become independent...if the court confirms the sentence as it stands it would be guaranteeing that no premeditated mistakes would be possible in future.”

But in his closing arguments, the PL's lawyer Robert Abela, accused the PN of trying to change the Court into the electoral commission. They should have attacked the disposition that caused the loss of rights, the time limit, but hadn’t, he said.

Lawyer Paul Lia, representing ministers Justyne Caruana, Joseph Debono Grech and Edward Scicluna, urged caution as he concluded his submissions, arguing against introducing doubt into the electoral system where previously there had been none. “The system is what it is and over the years we had accepted that it gives us results with certainty. Now we are putting all that in jeopardy.”

Prof Ian Refalo, appearing for the Electoral Commission said the PN's interpretation of the European Convention did not reflect the intention of the legislator. The issue had noting to do with mathematics, argued the veteran lawyer.  "The remedy given by the first court is contrary to the spirit of democratic elections...the law doesn't want members of parliament to be imposed on the country by a judicial process or a process that doesnt involve the electorate."

Similar questions were also posed by Attorney General Peter Grech, who argued that the complaint was not a constitutional one, but against a mechanism. The Maltese system is oriented towards free and fair elections, Grech said. “It speaks of legislatures, not candidates...there is nothing in the Maltese system that somehow breaches the right to free elections. In this case I believe we missed the wood for the trees. We didn’t focus on whether it was a free and fair election, but focused on incidents regarding a packet of 50 votes in one district and 10 in another. This type of complaint is not one of a constitutional nature or a European nature, but one of how the mechanism is implemented. This has no consequence on the outcome. Our electoral law gives a remedy which must be exercised within a fixed period in order to safeguard certainty.”

“So has parliament been incorrectly composed for the past 3 years? Are its decisions affected by nullity and if we say it was, does the legislature begin now or do we simply correct it? The way the previous court addressed the issued swung too far beyond the Constitution and did not respect the fundamental caveat that it cannot scrutinise the Constitution. It would be superfluous to add another remedy that would create this type of uncertainty.”

The court will deliver its final judgement on November 7th .