A vic­tory for both par­ties

The most im­por­tant lo­cal news last week was the sen­tence handed down by our Con­sti­tu­tional Court of Ap­peal.

Malta Independent - - SIMON ON MONDAY -

Dr Si­mon Mer­cieca is se­nior lec­turer, De­part­ment of His­tory

The Na­tion­al­ist Party was al­lo­cated two ad­di­tional seats in Par­lia­ment to make good for a mis­take in the count­ing of votes on two elec­toral dis­tricts. I am de­lighted that the Labour Gov­ern­ment has ac­cepted this ver­dict. This kills all po­lit­i­cal dis­course that the PL does not re­spect court rul­ings. It also be­comes more dif­fi­cult for Labour’s po­lit­i­cal op­po­nents to make any po­lit­i­cal anal­ogy with the pre-1987 Labour Gov­ern­ment.

In all fair­ness, it should be stated that the PN is to blame for this sit­u­a­tion be­cause its count­ing agents were not care­ful enough dur­ing the count­ing of votes on the eighth and the thir­teenth district. Had they been metic­u­lous, such an elec­toral er­ror could have been avoided and Malta would have been spared this po­lit­i­cal saga.

On the other hand, I am dis­mayed with this court sen­tence. In Mal­tese there is a phrase that is quite ap­pro­pri­ate and this is “sen­tenza bażwija” or a mud­dled de­cree. I agree with the Labour Party dec­la­ra­tion say­ing that this sen­tence has cre­ated a very se­ri­ous prece­dent that could lead to abuse. How­ever, my rea­sons dif­fer from those given by the Labour Party. Unequiv­o­cally, this sen­tence con­firms that democ­racy is just a po­lit­i­cal sys­tem. Both Par­ties have gained out of this sen­tence.

I agree with Labour that it is not jus­ti­fi­able that the Na­tion­al­ist Party gets two more deputies. Nonethe­less, the er­ror com­mit­ted had to be rec­ti­fied. In truth, the PN should not have two more deputies. In re­al­ity, Labour should have two less. This would have been the real par­lia­men­tary rep­re­sen­ta­tion had the votes been counted cor­rectly on these two dis­tricts. The PN has now sal­vaged its two un­elected deputies thanks to this count­ing mis­take be­cause of the in­ter­nal mech­a­nism ex­ist­ing in our elec­toral sys­tem, which guar­an­tees our main par­ties a fair rep­re­sen­ta­tion in Par­lia­ment ac­cord­ing to the num­ber of the votes that they ob­tained in elec­tion. Thus, the num­ber of PN deputies re­flects the num­ber of votes that it got in the last elec­tion. The num­ber of Labour deputies does not re­flect that re­sult.

The Con­sti­tu­tional Court of Ap­peal con­firmed the sen­tence given in May when the PN was granted two more deputies. This means that we, as cit­i­zens, will be pay­ing for two ad­di­tional deputies from our taxes when in re­al­ity these two should not be in Par­lia­ment.

In a nor­mal Western democ­racy, when these cases of hu­man er­rors oc­cur, the Courts or the Elec­toral Com­mis­sion or­ders a re­count on those dis­tricts hit by such slip-ups. In which case the sen­tence would have been on these lines. The court/elec­toral com­mis­sion would have can­celled the elec­toral re­sult on the district in ques­tions and or­dered a re­count. Per­haps, one could rightly ar­gue that such a sen­tence could have led to le­gal and elec­toral com­pli­ca­tions. Yet, these le­gal com­pli­ca­tions are the re­sult of court cases in Malta drag­ging on for months and years. This case was no ex­cep­tion. As Labour was in the wrong, its lawyers had ev­ery in­ter­est to put spokes in the wheel to pro­cras­ti­nate and de­lay judg­ment.

Pos­si­bly, our Courts could have avoided such a dra­co­nian sen­tence and an­nulled the elec­toral re­sult be­cause, in the mean­time, there were deputies elected on the eighth district who had also been elected on an­other district. Our sys­tem re­quires that these deputies should drop one of their dis­tricts and by-elec­tion would then take place. Can­celling the re­sult might have even af­fected by­elec­tions on the eighth district. An­nulling the re­sult would there­fore com­pli­cate mat­ters as those deputies who kept that district would lose, tem­po­rar­ily, their seat but there is no doubt that these deputies would have been re-elected in the re­count and this sce­nario would not have re­sulted. More­over, such in­stances con­firm the need for rapid and quick sen­tences by our courts.

This ex­plains why the Court went for this rather strange ver­dict of adding two seats to the PN. Had the Court or­dered a re­count, the PN would have kept the num­ber of deputies it has at the moment but Labour would have lost two deputies. There­fore, con­trary to what is be­ing stated, this is not a sen­tence in favour of the PN but one favour­ing both par­ties. The PN is happy with this judg­ment be­cause it gives the Party two more deputies. Labour should also be pleased since it did not lose two of its deputies.

In all prob­a­bil­ity, had the Court an­nulled the elec­toral re­sult in ques­tion, Labour would have lost Par­lia­men­tary Sec­re­tary Justyne Caru­ana and deputy Joe De­bono Grech. It was thanks to this count­ing mis­take on the 13th District that Justyne Caru­ana was elected. Ed­ward Sci­cluna was elected on the eighth district but as he was also elected on an­other district, he dropped this district and Joe De­bono Grech was elected in­stead. In truth, Claudette But­tigieg should have been elected on the eighth district but But­tigieg still made it to Par­lia­ment as a re­sult of the Con­sti­tu­tional amend­ments for a bet­ter po­lit­i­cal rep­re­sen­ta­tion in Par­lia­ment. The same holds for the Na­tion­al­ist MP Fred­er­ick Az­zopardi. Caru­ana got elected in­stead of him. But both But­tigieg and Az­zopardi, the Ital­ians would say were “ripescati”; a term used in Ital­ian pol­i­tics for those deputies who fail to make it to par­lia­ment but still en­ter par­lia­ment be­cause of elec­toral ar­range­ments. The Gozo district and the eighth district, have now ended up with the sur­re­al­is­tic sit­u­a­tion of hav­ing seven deputies, four for the PN and three for Labour. Nor­mally, a district has only five deputies. This weak­ens the other dis­tricts’ rep­re­sen­ta­tion in par­lia­ment.

This leads me to an­other ob­ser­va­tion. Many are ask­ing why this hap­pened. Be­sides the el­e­ment of hu­man er­ror, there is the po­lit­i­cal mech­a­nism be­hind our sys­tem. Our sys­tem al­lows the elec­torate to trans­fer its vote from one can­di­date to an­other with­out ob­serv­ing party lines, which means that the trans­fer of votes can be from one can­di­date of a party to an­other. This is known as the “sin­gle trans­fer­able vote”. What hap­pened in the last elec­tions, and in par­tic­u­lar on these two dis­tricts, the way votes got trans­ferred af­fected this re­sult in favour of Labour. Since the votes were wrongly trans­ferred, Labour ended up hav­ing an ex­tra two deputies - one on each of the two said dis­tricts - when in re­al­ity these votes should have gone to the PN.

This is why I am in­sist­ing that the ad­di­tion of two deputies does not re­flect the votes ob­tained by the PN in this elec­tion. This Court sen­tence has spared Labour los­ing two of its deputies. The Court of Ap­peal has ac­knowl­edged that the PL stole two seats but in­stead of con­demn­ing Labour to re­turn what it ‘stole’, the Court has now al­lowed the PN to do the same and steal two ex­tra seats. This ex­plains why I de­fine this sen­tence as mud­dled.

Fol­low­ing this court ver­dict, Dr Busut­til in­vited his sup­port­ers to a mass rally at the PN head­quar­ters. I agree with those who said that this rally was in­ap­pro­pri­ate and con­trasts sig­nif­i­cantly with Labour’s calm de­ci­sion to re­spect the Court’s ver­dict. One won­ders why the PN found it ex­pe­di­ent to call a mass rally. Un­for­tu­nately, Dr. Busut­til has ended up do­ing what Labour used to do when it had its back against the wall: call­ing mass ral­lies to boost its sup­port­ers’ morale. This only re­flects po­lit­i­cal panic. This con­firms that the new di­rec­tion that the PN has em­barked on that of em­brac­ing lib­er­al­ism - is leav­ing the Party with­out a soul. There is now a cer­tain de­tach­ment in its in­ner core. Images of the rally con­firm the luke­warm at­mos­phere that reigned at Tal-Pi­eta’. The at­ten­dance was poor. Yet, the PN is still in time to make good choices by re­turn­ing to its tra­di­tional val­ues. Per­haps the elec­tion of these two deputies should be con­sid­ered as a God­send by the PN; it should help the party to re-dis­cover its lost val­ues.

The Malta In­de­pen­dent Mon­day 28 Novem­ber 2016

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