‘Obvious flaws’ in parliamentary seats allocation

A jubilant Opposition leader Simon Busuttil compared the Constitutional Court’s decision allocating the Nationalist Party two seats with the biblical story of David and Goliath: but to the Labour Party and Alternattiva Demokratika, the story couldn’t be more different.

“The big flaws in the allocation of seats is obvious,” Alternattiva Demokratika secretary general Ralph Cassar told MaltaToday. “The allocation of two seats, because of a mistake in a batch of 50 votes, essentially means that the PN’s two new seats are worth 50 votes. Quite a bargain for Black Friday.”

The Constitutional Court on Friday allocated the PN two seats, after finding that the PN could have elected a third candidate on the eighth district. But because the number of seats in parliament needs to be odd – not even – the court moved to allocate two seats, raising the number of seats from 69 to 71.

Alternattiva Demokratika’s 5,500 votes it obtained at the general election remain unrecognised by the system

Lawyer Robert Abela, who represented the Labour Party in court, argued that the judgement created “a dangerous precedent”.

“A court can now change an electoral result. In the current scenario, the effect is marginal because the seat majority remains a strong one. Imagine if the sentence was delivered during a legislature with just a one-seat majority,” he said.

The PN’s number of seats in parliament has gone up from 29 to 31. Add independent MPs Giovanna Debono and Marlene Farrugia to the opposition benches, and the government’s seat majority now stands at five.

Abela went on to argue that a second dangerous precedent created was that one could attack the electoral result at any time during the legislature: “The Constitution provides for a remedy that can be exercised within three days; this has now been rendered useless.”

Lawyer Robert Abela, who represented the Labour Party, argued that the judgement created 'a dangerous precedent'

According to Abela this could easily be used by a counting agent from the losing party’s side who, realising that a mistake had been made, would choose not to say anything but decide to speak up in the middle of a legislature, with the political party launching a court case leading to political instability.

“But the biggest dangerous precedent is that the court, arguing that the people’s will was not reflected in the number of seats the PN held in parliament, provided a remedy which gave the PN an extra seat it did not merit, breaking away from the principle of proportionality which determines the number of seats based on the votes obtained.”

But the irony of the judgement was mostly noted by Alternattiva Demokratika, whose over 5,000 votes it obtained at the general election, remained unrecognised by the system.

“Some are hailing the increase in parliamentary seats to 71 as historic. It is ‘historic’ indeed, but for the wrong reasons. The actual votes cast are not reflected in the composition of parliament since there are MPs who should not have been elected to Parliament,” Cassar said.

“Plonking on an additional two seats is a shortcut to keep the establishment happy. The PN gets two seats representing 25 votes each, when at the same time the system allows 5,506 votes obtained by AD to go unrepresented. So much for proportional representation! Yet again, Muscat’s and Busuttil’s establishment has prevailed.”

It took the PN almost four years to win its case, prompting electoral observers to note that this could have been avoided if procedures which guide the Electoral Commission allow for a recount of votes, once a count is closed. 

Whilst some observers agree that a reform in the electoral system is long due, others have argued that calling for a recount of votes once a count is closed could create a variation in subsequent counts.

Hermann Schiavone, an electoral expert and PN candidate for the 2018 elections, said the Constitutional Court’s decision was precise in that an election is determined by the electorate and not by the counting agents.

He agreed that political parties should commence talks on an electoral reform and discuss ways how to amend regulations to avoid such a repetition. “Mistakes always happen but this time the mistake resulted in the election of a candidate from the opposing party,” he said. “There should be regulations on what is the best decision to take under the circumstances.”

A batch of 50 first preference votes belonging to then PN candidate Claudette Buttigieg were wrongly placed in the pigeonhole of PN candidate Michael Asciak, also a contender on the eighth district. Electoral Commissioner Vanni Ganado had told the court that the mistake most probably occurred in the first count. Given that the vote difference between Labour candidate Edward Scicluna and Buttigieg on the first count was just eight votes, Ganado said the eighth district should have elected Buttigieg, and not Scicluna.

Electoral expert Hermann Schiavone said the decision was precise in that an election is determined by the electorate

The electoral law allows a recount when a specific count is still open. A count cannot be reopened if the following count is already underway. In this case, the batch of first preference votes was only found when the counting assistants started sorting Asciak’s voting ballots. A protest was lodged.

But according to Robert Abela, the PN had failed to make use of the remedies granted by law. He argued that the PN instead capitalised from its own shortcomings and the court “turned a blind eye”.

“If the PN had made use of the remedies granted under the Constitution, this episode would have been closed in just a few days after the elections. In fact, Claudette Buttigieg and Frederick Azzopardi had filed a court application which was decided in March 2013,” Abela said.

The PN, along with the two MPs, continued to fight the decision since March 2013, filing applications before the Constitutional Court against the Electoral Commission and arguing that the result did not reflect the will of the people.