Divorce: law assumes referendum will be held along party lines

Amendments to Malta’s Referendum Act in 2002 – a year before the EU referendum – give the Nationalist and Labour Parties exclusive privileges in the political supervision of all stages of preparation and conduct of the May 28 divorce referendum:  including the automatic right to field Assistant Commissioners.

Despite having a declared stake in proceedings, organised campaigns such as the Iva movement and Zwieg Bla Divorzju cannot nominate Assistant Commissioners of their own. Nor are they privy to briefings from the Electoral Commission relating to the referendum process, unlike the represented political parties.

“The Referendum Act assumes that all referenda will take place on partisan lines,” Iva campaign manager Michael Falzon said, adding that the situation places political parties with an interest in the outcome at an unfair advantage.

But with both parties experiencing internal dissent on the issue, it remains unclear to what extent they will avail themselves of the privileges afforded to them at law.

Emerging from parliament after the recent referendum debate vote, Prime Minister Lawrence Gonzi confirmed that the Nationalist Party – which has taken a formal position against divorce – will campaign ahead of the referendum. Earlier, PL leader Joseph Muscat had indicated that he would be campaigning for a Yes vote, but only on a personal level.

“The Opposition leader will be campaigning, and he has every right to,” Gonzi told journalists outside parliament. “In fact it’s his duty, as it is mine... [Joseph Muscat] and I are in politics to be actors, not spectators. And this is what we will do in the coming weeks.”

Party privilege

The law as it stands today certainly gives both actors plenty of space to perform.

Consultative referenda are effectively governed by the same provisions of the General Election Act, which goes into minute detail on how the Electoral Commission should handle logistical preparations such as printing and distribution of voting documents and ballot papers, administration and monitoring of polling booths, as well as the counting of votes, among others.

But there is a significant difference. For the purposes of the Referendum Act, the definition of ‘political party’ was amended in 2002 – a year before the EU referendum – to refer only to the two parties represented in Parliament.

In practical terms this changes little, as the General Election Act also makes the same distinction in all but a few cases. However, these exceptional cases include automatic representation at polling stations and counting hall to monitor proceedings, and the right to detailed information on demand from the Electoral Commission.

Unrepresented political parties have already been officially informed by the Electoral Commission that they cannot submit nominees: a fact confirmed this week by AD’s Arnold Cassola.

“We have applied to have Assistant Commissioners, but the Commission pointed towards the Referendum Act, which limits representation only to the two larger parties,” he told MaltaToday.

Nonetheless, the Electoral Commission is obliged to issue a public call for applications, within 15 days of the publication of the relevant legal notice, in which all members of the public can participate. But there is no legal obligation to consider these applications, still less to approve them.

And as with elections, the Nationalist and Labour parties are also entitled to object to any nomination for Assistant Commissioner, as well as to nominate representatives on the Medical Board regulating objections to voters for mental health reasons.

That political parties are legally entitled to monitor general elections should come as no surprise, considering the extents to which they have traditionally taken these privileges in the past.

The Nationalist Party was fiercely criticised ahead of the 2003 elections for seeking to strike voters from the electoral registry on grounds of senility: a practice that was routine for both parties in virtually all past elections. After the 2008 election, the extent of the parties’ hold on election-related information became manifest, when the PN was able to calculate the political allegiances of non-voters within hours from the time the polling stations shut, at 11pm on 8 March.

The 2002 amendments to the Referendum Act extended this influence further still, and this was quickly brought to bear on the EU accession referendum in March the following year. But when it comes to the 28 May referendum on divorce – an issue which at face value cuts across party lines on both sides – it is unclear whether the two parties will take as visible a role.

Efforts to elicit answers from PN’s Henri Darmanin, who runs the party’s electoral office ELCOM, and his Labour counterpart MP Michael Falzon, proved futile all week.

Party Power

Excerpts from the Referenda Act (Chapter 237) detailing rights specific only to the Nationalist and Labour parties:

46.(2) – The political parties shall be granted all reasonable facilities to watch the printing of all voting documents, to check the exactness thereof and generally to ensure that only voting documents of voters entitled to receive them are printed.

46.(4) – The political parties shall have the right to each nominate one representative to accompany each police officer or other person effecting [delivery of voting documents].

50.(3) – Representatives of the political parties shall be granted all reasonable facilities to oversee the printing and checking of all ballot papers, the packing thereof and their distribution to the Assistant Commissioners, and to affix their seals to all packets prepared by the Electoral Commission for delivery to the Assistant Commissioners.

57. (1) Every political party shall, within ten days of publication of the Writ, be entitled to nominate a number of persons, equal to one and one-third the number of polling booths that there are in the electoral divisions being contested by it, to act as Assistant Commissioners, and to the extent that such persons have the necessary ability to perform the functions of Assistant Commissioner and are not disqualified from so acting by the provisions of this Act, the Commission shall appoint Assistant Commissioners from amongst such persons.

Schedule 2.2(2) [Amended 2002] – The definition of ‘political party’ in article 2(1) thereof were substituted by the following: ‘political party’ means any person or group of persons who, having contested the general election under one name, is represented in the House by at least one member."

European law should be adapted to the law of Malta. That would be fine. Open letter to Mr. Dr Lawrence Gonzi Prime Minister, of Malta Republic Dear Sir. As countrymen Servant of God Pope John Paul II, we would like to thank you so much for the tenacious defense of moral order and the foundations of our civilization. We want to assure you of the solidarity of our nation and the people of Malta at that particular time when in the legislation of the Republic the Christian nature of marriage as an indissoluble relation of man and woman is being undermined. We believe strongly that such thanks to your attitude this foundation, the cornerstone of a healthy society will be saved in Malta. May the Good Lord has shed light of the Maltese on the entire Europe and has attracted our erring continent back to Himself.
No surprise there. The duopoly of power is institutionalised in Europe's only two-party state. Funny how it is frowned upon when it is one party by accepted when it is two.
poplu *
Dan ir-referendum huwa cimiterju. X'differenza hemm bejn dan ir-referendum u li kien hemm biex Malta tidhol fil-EU. U halluna hlief tidhqu bil-opolu malti ma tafux politics always sucks!
L-ixkubetta fiha l-grillu u kullhadd jaghmel li jaqbillu.