Who fathered the ass...

Austin Gatt wrote in The Times that Alfred Sant is wrong in stating that for an election there are constitutional rules that give the result while the same do not apply to a "consultative referendum".

Certainly, Dr Gatt cannot forget that our electoral system is based on a special system, known as the "single transferable vote", which requires a system of counting and transferring votes from one candidate to another. At one time Dr Gatt, as general secretary of the Nationalist Party, tried to give a different interpretation of the "single transferable vote" but his interpretation was bizarre. These rules have been applied, though not through the constitution, to the local council elections.

The amendments of 1987 to the constitution added a safety net to the majority in the country on first count votes, when the national majority party gets fewer seats than the minority. Otherwise, the traditional constitutional rules apply. Had this not been the case, the Nationalist Party would not have had the now defunct majority of five members in parliament, which was not reflecting the national vote!

Dr Gatt further argued that amendments were made to the Referenda Act. Certainly this is true, and the opposition did not ask for divisions. Yet, it remained the responsibility of the government and the minister piloting the bill to see that it was correct in all its aspects, even in the details of legal drafting.

He asserted that the amendments made it clear that only valid votes would be taken into account, both for "consultative" and "abrogative" referenda. The system of counting is really meant for all types of referenda, including those under the constitution, which speaks of votes cast.

What Dr Gatt misses is that, in spite of all the amendments, there is no mention in the law itself when the majority is reached, and how it is reached. In the abrogative referendum, the law specifically states that the referendum is positive if there are 50 per cent + 1 in favour, of all valid votes cast. The constitution, in the special case mentioned for a referendum, speaks of a majority of "votes cast", without any distinction between "valid" and "invalid votes". But when one speaks of the consultative, non-binding referendum, there is no mention how a majority is calculated.

Dr Gatt speaks about the declaration of a result. Unfortunately, he forgot that the government in office deleted the provision that there should be a declaration of a result. According to the regulations meant for the electoral commission on how it should conduct elections, and more specifically in Schedule Thirteen, section 7 of the original was amended. Two subsections were deleted. One of them was about the declaration of the votes.

Michael Falzon and myself wrote to the electoral commission about the mess of legal drafting that was made in October, 2002. We received a reply from the electoral commission stating that they would rely on section 106 of chapter 354 and "count valid and invalid votes".

So Dr Gatt should know that although invalid votes are not included in his intentions they remained in the wording of the law, and the invalid votes were counted and accounted for. This was also the interpretation of the Prime Minister in Naxxar, who equated invalid votes to the no vote!

It would be wise for the minister to examine section 106 of the law he quotes, which speaks of a "total of valid and invalid votes".

The commission made it clear it would not interpret the vote. This was in answer to a persistent question from a journalist of The Times. While the abrogative referendum renders a result with an established majority this is not the case in the consultative referendum. The commission cannot state that the question has been adopted. In elections, the commission declares a candidate elected.

Certainly votes that are not cast cannot be physically counted. But the Nationalist Party was happy that the Labour Party did not call for a total abstention. Abstentions do count as well in referenda.