Our electoral system has broken down

There is a limit to how often (and to what extent) one can tinker with a machine that just doesn’t work. Certain mechanical issues can be kept going for a while by means of minor alterations here and there; but sooner or later, a point will come when it is more cost effective and practical to simply replace the defective mechanism altogether.

This applies to political systems as much as to mechanical devices. The ruling delivered by the Constitutional Court last week – ostensibly to rectify a mistake in the counting process during the 2013 election – has firmly illustrated that Malta’s malfunctioning electoral system is at a point of no return. Not so much because of the mistake itself  – a matter of 50 votes placed in the wrong pigeonhole – but because the fault proved impossible to remedy without radically altering the composition of parliament: to the extent of authorising more seats than are accounted for by the parliamentary representation system.

It is admittedly a complex problem, but it can be simplified as follows. A batch of 50 votes belonging to PN candidate Claudette Buttigieg was mistakenly placed in the pigeonhole of PN candidate Michael Asciak, who contested the same [eighth] district. Given that the vote difference between Labour’s Edward Scicluna and Buttigieg was of just eight votes on the first count, it was argued that Buttigieg should have been elected instead of Scicluna.

The subsequent voter inheritance would also have panned out differently. According to the Court’s calculations, “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.” 

Herein lies the problem. While the Constitutional Court can order the Electoral Commission to issue more parliamentary seats... it cannot revoke any seat that has already been given. So even though Labour gained a seat more than it should have (always according to the Court’s ruling), the Court could not restore the balance by stripping the Labour government of the wrongly-allotted seat.

Moreover, the rules decree that the total number of parliamentary seats must be odd; so the situation could not be rectified by giving the PN one seat to make up the 27 it should have won. 

The Court’s response to this dilemma was to allow Labour to retain its seat, and giving the PN an extra two seats to compensate, while also respecting the numerical regulations. As a result, the number of parliamentary seats has risen from 69 to 71.

This evokes an earlier problem with the same, severely flawed electoral system. The original 69 seats already represented an increase over the distribution of seats as determined by the counting system. Without taking the mistake into consideration, the Constitutional mechanism had already been deployed to grant the Nationalist opposition an extra four seats, so as to ensure proportionality with the party’s share of the national vote. This is because our complicated district system does not always produce a perfect tally between votes cast, and the percentage of seats won in the House. 

In 1981, a similar scenario resulted in Dom Mintoff’s Labour party winning a majority of seats but not of votes, causing much political tension and unrest. This unrest ultimately led to a negotiated settlement that was clearly intended only to prevent a repeat of that electoral result in 1987.

The Constitutional amendment served its immediate purpose, but the mechanism remains highly unsatisfactory. Rather than fix the problem at its source – i.e., revising the division of Malta into districts, the quota system and the method used to elect candidates – we retained the machinery with all its flaws, and created a Constitutional proviso which is only applicable in an exact repeat of the 1981 situation: i.e. when only two parties are represented in parliament.

This is unacceptable for two reasons. One, a situation could very easily arise where neither party achieves an absolute majority. If that happens – as it nearly did in 2008 – the mechanism will prove useless, and we would be back where we began in 1981. Secondly, the agreed Constitutional mechanism can be seen to serve a purely partisan purpose. Time and again it has been used as a deterrent to warn against third-party representation, because it would expose an electoral flaw we never really fixed.

This is the equivalent of keeping a car together with bits of string, as opposed to fixing it or buying a new one. Not only is the engine flawed, but by tinkering with it we have created additional malfunctions without solving the original problem.

Moreover, the Court ruling also exposes another ingrained systemic flaw. Ultimately, a mistake of 50 votes translated into two extra seats for the PN... when as many as 5,000 first count votes cast for a third party such as AD, has never translated into a single seat. If the idea of amending the Constitution was to make the seat-count reflect the electorate’s express wishes, it has clearly failed.

As a result, we have seriously distorted the political playing field. Malta cannot afford to go to another election, without fixing its flawed electoral system once and for all.