Quotas: what happens if co-opted female MPs resign their seat?

Malta’s electoral commission is yet to decide on what would be the constitutional manner in which MPs elected to the House under the gender-corrective mechanism, are replaced should they step down from their seat in parliament.

Unlike MPs elected to the House, Malta’s new 12 female MPs have been technically co-opted to the House under the recently-enacted gender correction that adds an equal number of MPs from the under-represented gender (less than 40% of all MPs) to the two parties elected to the House.

And unlike MPs elected to the House, who trigger a by-election if they resign their seat, the exit route for these MPs has not yet been strictly established.

Apart from being the subject of a constitutional challenge by Green Party ADPD, which argues that the mechanism only applies to Malta’s party duopoly, the system has already fallen prey to party manipulation: in the case of Janice Chetcuti, the Nationalist MP did not contest a casual election, making way for a male candidate to be elected, in full knowledge that she would be co-opted under the quotas system.

So what happens if one of these women drops out of parliament?

Justice Minister Jonathan Attard, who previously worked on the legislative amendments to the quotas rules, said that such women candidates would be ultimately replaced by another co-opted person.

“When an MP elected through normal candidature resigns, the votes of that MP are redistributed among the rest of the unelected candidates in their district to elect the replacement. In the case of the quotas candidates, they do not have this packet of votes. Therefore, according to my interpretation of constitutional law, it is a co-option, and not who is necessarily next in line.”

Attard also said one of the Constitutional clauses states that a co-opted MP should also reflect the sentiment of the MP they would be replacing. “While not mandatory, I interpret the Constitution here as saying that if the female MP is being replaced via co-option, then it should also be a female MP who must be chosen.”

The former Nationalist MP Hermann Schiavone, a keen electoral observer, however thinks that unless the party’s list of women candidates was not exhausted, the co-opted replacement should be the next female candidate in line according to the mechanism.

Former EU Commissioner and constitutional lawyer Tonio Borg agreed with Attard. “If someone is initially elected through a casual election, and they resign, the individual who replaces them is not elected through a casual election, but through a co-option,” he said.

Chief Electoral Commissioner Joseph Camilleri however said he is yet to seek legal advice on the matter. “Once we have such advice, we will come back with an answer.”

The six women MPs elected for the Labour Party were Alicia Bugeja Said, Cressida Galea, Abigail Camilleri, Amanda Spiteri Grech, Naomi Cachia and Davina Sammut Hili. The Opposition side of the House saw Janice Chetcuti, Paula Mifsud Bonnici, Julie Zahra, Bernice Bonello, Claudette Buttigieg and Eve Borg Bonello elected through the mechanism.

Labour has made extensive use of the co-option system to push forward new ministers Clyde Caruana and Miriam Dalli in 2020, as well as other personal choices by Prime Minister Robert Abela when MPs elected via casual election, resigned.

Even in the 2022 election, Labour co-opted Randolph Debattista to the House when two MPs vacated their dual constituency and no more Labour candidates were left to contest a casual election.