Abstention… from the highest court in the land

If the Constitutional Court does not have legal jurisdiction to decide the case, then which court in Malta has?

It is perhaps surreal for Malta’s highest court to claim that it has no legal jurisdiction to decide on a case calling for an injunction on a small number of early voters by people – specifically prisoners at Corradino Correctional Facility – who had been interdicted by the courts but whose names were not struck off the voters’ register by the Electoral Commission.

First of all, the fact that the PN had to take recourse to the Constitutional Court to seek a decision on this matter speaks volumes about the Electoral Commission. The Commission claims it depends on the courts and other institutions, as well as individual petitioners, to keep its voters register ‘substantially’ correct; that is, it depends on the courts communicating interdictions or voter incapacitations in a timely fashion for the Commission to update its voters’ database.

But it should also be the Commission itself, which includes representatives appointed by the Labour and Nationalist Parties (a constitutional anomaly that only serves the two elected parties rather than civil society at large), to be proactive enough to ensure its latest electoral register is fully updated and that it takes in cognisance the latest court interdictions of voters.

After the matter of prisoner votes came to the attention of Nationalist MP Jason Azzopardi, it was the PN which had to ask for their annulment in the Constitutional Court.

There is little comfort from the Commission’s learned counsel that “good or bad” every registered voter is eligible to vote when it happens to be the duty of the Prisons Director and the Registrar of Courts to inform the Electoral Commission of court sentences which affect certain inmates’ eligibility to vote, by the third day from the publication of the electoral register.

Rightly it was said in court by the plaintiffs that if the Electoral Commission is not receiving the information, but it surely has the obligation to check the list and eliminate ineligible voters.

Yet, despite Article 95.2 of the Constitution stating that the supreme court has jurisdiction to hear and determine “any matter referred to it in accordance with any law relating to the election of members of the House of Representatives”, the three judges of the Constitutional Court have dismissed the PN’s injunction on the early voting.

If the Constitutional Court does not have legal jurisdiction to decide the case, then which court in Malta has?

Voting day

This editorial marks our last commentary ahead of the ‘day of silence’ on the eve of voters’ d-day.

This election will certainly be remembered as quite a particular one: Labour entered a contest in full knowledge that it was well ahead of its opposition; the absence of the 2017 allegations against the former prime minister, which were in fact successfully weaponised against his accusers; and the start of a meek ‘regeneration’ of the PN, with so many established candidates calling it a day, some unwillingly so, and making room for new blood. The ordinary citizen awaits the new generation of MPs from both sides with bated breath.

What was clearly evident in this election was the plethora of proposals now clearly hinging on expansionist economic growth and fiscal generosity. Tax cuts and tax credits abounded, with this newspaper arguing that such generosity risks damaging the social pact between high earners and low-income earners; while depending on yet more positivist growth that comes its own social tensions, dependence on labour immigration, planning largesse, and deregulation for businesses.

Rather than addressing our planning fracas, the protection of our countryside and biodiversity, fairness for all citizens, further checks and balances on the power of the State, and the influence of businesses through covert party financing, this election is a confirmation of Malta’s status quo.

To be sure, in the wake of a global pandemic that is now visiting supply shocks and inflationary effects upon the economy, not to mention the climate crisis and the war in Ukraine, some sobriety is sorely needed. We expect all parties to be four-square behind a faster pivot to carbon neutrality and to move as fast as possible away from fossil fuels and onto renewables; as well as promoting less use of private transportation if we are to have a modal shift in public transport.

While both parties have managed to ‘depoliticise’ the campaign with less negative campaigning than before, it is clear that we have witnessed some clear indicators from the public’s reaction to these campaigns. The first is that the pandemic and the war in Ukraine means that voters will choose economic stability, and here Labour’s track record allows it to be the party of deliverables. It is the same story as it was back in 2008 when the financial crisis hit and it was the PN that was entrusted with steering the country through that storm.

Secondly, the general consensus is that Labour cannot be returned to power with the same result as it had in 2013 and 2017, even though its landslide is bound to be as unprecedented as previous elections.

The third issue is the question of good governance. Labour, if it wins the election, cannot be allowed to use its victory to take a step back on important reforms that were recommended by the Caruana Galizia public inquiry. On this, the press and civil society must remain vigilant.

MaltaToday’s daily surveys have now shown a gap that could be anything between 27,000 to 30,000, even though anything could yet happen and much depends on the turnout. In 2017, this was at 92%, but in that election Labour had managed to win over more former PN voters; if the turnout falls below 90% in 2022, it could mean bigger losses for the incumbent party.

Whatever the result, there is a story that must be read, but it must be treated with humility. Labour can learn from its predecessors in power: hubris will be its downfall if it treats the result with cavalier disdain.