Updated | Constitutional Court turns down PN request for recount on two districts

The Constitutional Court of Appeal has turned down the Nationalist Party's request for recounts on two districts, after Malta's complicated electoral system found itself tossed into the hands of the Constitutional Court, often leading Chief Justice Silvio Camilleri to openly express his frustration at the bickering by all sides, when arguing on the Nationalist Party's petions for recounts on the eighth and 13th districts.

The decision will mean that the PN gains four more seats in the House to reflect its popular vote, while Labour will retain its majority of nine seats in parliament.

Flanked by Judges Giannino Caruana Demajo and Noel Cuschieri, the Chief Justice yesterday led a six-hour marathon sitting and faced a packed courtroom with representatives from the PN, the PL and the Electoral Commissioner, all engaged in a litany of submissions.

Professor Ian Refalo, appearing for the Electoral Commission urged the Court to deliver a judgement without any delay, as the whole electoral process was left pending.

"We have a serious issue where an electoral process is halted, and certain national decisions cannot be taken serenely at this time, and this is why I urge this Honourable Court to have this case decided fast," Refalo said.

He argued that the Courts were being invoked because the Electoral Commission had in fact done all it could to correct the mistakes, but the Law was clear, that wherever there was an electoral petition, this must be decided only by the Constitutional Court.

The matters raised were two separate ones, involving two PN candidates and a handful of votes which in fact could make a difference to their prospects of being elected to Parliament.

But while the mistakes made during the counting process could not be easily corrected by an electoral commissioner by ordering a recount, given that the law does not permit such a decision, the issue becomes further complicated when the proportionality of votes and parliamentary seat distribution comes into play, given the ample majority won by the Labour Party in last Saturday's General Election.

Chief Justice Camilleri will hand a decision today afternoon, stressing that he understtod the implications involved, among which the Prime Minister's difficulty to appoint a Cabinet in due time.

The Court said that it must go through the laws and evaluate the submissions, evidence and facts presented to it in six hours.

PN's case

In its application, the PN said that during the counting process on the Gozo district, 10 votes which belonged to PN candidate Paul Buttigieg were found to be missing on the eighth count, and as a consequence of the mistake, allegedly committed by the Electoral Commission, the PN lost the district to Labour by nine votes.

Because the mistake was committed during counts which had already been closed, counting can only start once again by order of the Constitutional Court.

The announcement came in the wake of a historic win for Labour, as it managed to scoop up a Gozitan seat majority instead of the usual two it managed to secure in the traditionally blue locality.

The issues raised by the PN concerned candidates Claudette Pace from the eighth district (after 50 votes went missing) and Frederick Azzopardi from the 13th district. The two were present for the proceedings, and their cases were dealt with separately.

But the case was further complicated when the Court was informed by the Electoral Commission that should the Court uphold the request for a recount and Pace and Azzopardi be elected on their own merit, there existed the possibility that the formula would change, and rather than have the PN obtain four more electoral seats.

Not 'co-opting' four electoral seats, would mean that the Commission  will have to increase the PN's proportionality and meanwhile reduce the PL's parliamentary majority to seven rather than nine seats.

The matter was flagged by Electoral Commissioner Joseph Zammit Maempel, in countering an argument raised by lawyer Paul Lia, on behalf of the PL and elected candidate Justyne Caruana, who also filed a judicial application to protect her interests since, after she was elected toppling the traditional 3-2 majority held by the PN in Gozo.

Lia argued that the PN's applications calling for the cancellation of the results on the two districts would be in fact causing upheaval and more, erasing the election of a number of candidates who have been already been declared as elected MPs.

He added that the PN's petitions were futile because whatever the outcome, Claudette Pace and Frederick Azzopardi would still be elected to the House, given that the Constitutional amendment to the Electoral Law in 2007 provided for the compensation of four seats.

District 13 - 'a curious one'

Electoral Commissioner Major Vanni Ganado, who was on duty when the 10 vote discrepancy was discovered during the 10^th count on District 13, said that he was told by a subordinated that there was a "curious issue."

Louis Fsadni, the Counting Hall manager told me that while PN candidate Paul Buttigieg was being eliminated with 678 votes, when in fact he had 668 confirmed when the process of transferring his votes started.

The witness said that he referred the matter to Prof. Ian Refalo, the Electoral Commission's legal advisor, who prohibited him from going back on previous closed counts. A reverse process is illegal when a count is closed.

Prof. Refalo advised the Commission to move forward, and a 'ficticious' 10 votes were created to balance the numbers.

The Court heard how the process stopped on the 10^th count when PL MP Justyne Caruana was elected, and the PN informed the Commission that it was to file an urgent application with the Constitutional Court for a recount.

Prof Refalo declared that the objection raised by Paul Borg Olivier on behalf of the PN, was sent to the Dr. Joseph Zammit Maempel, a member of the Electoral Commissioner on Monday afternoon.

Lawyers John Bonello and Therese Comodini Cachia who appeared for the PN stressed that contrary to the PL's legal counsel, the result has so far not been concluded by the Electoral Commission, and has not been officially signed by the Electoral Commission. Neither has it been presented to the President of the Republic, or to the Prime Minister.

The PN stressed that the issue is identical to a case flagged in 1951 concerning former Speaker of the House Kalcidon Agius, who challenged the Electoral Commission over a number of votes belonging to him which were wrongly transferred to Mable Strickland's Constitutional Party.

Court is still in session, and until a decision is taken the final electoral result cannot be published, and neither could a definite picture be given of how the new House will be represented.

District 8

Chief Justice Camilleri and Judges Cuschieri and Caruana Demajo, moved on to address the second judicial application, concerning some 50 votes which were not transferred to her but to PN candidate Michael Axiak.

Prof Refalo explained that the mistake on the Eighth District was made in the first count and was discovered during the 14^th count.

The counting supervisior erroneously picked up 50 votes belonging to Claudette Pace and put Michael Axiak's tag, and were filed into his pidgeon-hole.

When the votes were being transferred, a counting agent was given the packet and found that they belonged to Pace, and flagged the mistake.

Summoned to the Naxxar Counting Hall, Prof Refalo said that he wrote a letter assuming the responsibility for the mistake on behalf of the Electoral Commission.

The 50 votes were then looked into, and where there were transferable votes, this was done.

Intervening, Paul Borg Olivier refereed to Article 15 of the Electoral Act, which said that the Court may be asked to order a recount at any stage of a count, when it would be apparent that the mistake would prejudice a particular candidate's election.

That candidate, former TV presenter Claudette Pace said that she was present throughout the counting, and while she moved along the Perspex, an agent noticed that individual first preference votes to her were being pulled out of a packet which came from Michael Axiak's bundles, who was in the process of being eliminated.

"It was obvious that a mistake had been made," Pace said, adding that she had to refer the matter to the Courts, after it transpired that they were going to be lost and considered invalid at that stage.

PN sub-delegate for the PN at the Naxxar Counting Hall Dr. Ian Micallef, asked for a total recount on the Eighth District to correct the obvious mistake, rather than invalidating them.

The Electoral Commission met to discuss the issue, and the PN objected to the suggestion that the matter could be solved, due to the prejudice that was set to be caused to Pace and her prospects for election.

The mistake, Ian Micallef explained was made when somebody wrote Michael Axiak's name on the strip of paper which gathered the batch of Claudette Pace's votes.

He was in possession of the strip and submitted it as evidence, adding that the mistake was becoming even bigger when attempting to invalidate the votes over a mistake.

"I told the Electoral Commission that the only democratic remedy was to recount, and not cancel 50 voter's democratic wish over somebody's mistake."

Summoned again to the witness stand, Major Vanni Ganado said that the problem was that the Electoral Commission had absolutely no power in correcting a mistake.

The procedure he said, would involve the party or the candidate to file an application before the courts, asking for a recount.

Upon an election petition, the court may order the Commission to recount votes, Major Ganado said.

PN secretary-general Paul Borg Olivier was seen to object to Prof. Refalo's reasoning with the courts, who questioned how the Courts could have the authority to order a recount when the Electoral Commission didn't.

But could the Commission, without the Court's authority actually order a recount?

According to the PN's legal team, this was possible, and added that the Electoral Commission was attempting to divest itself from the burden of responsibility.