Broader definition of term 'residence' for voting purposes

The Civil Court yesterday ruled that the fundamental human rights of Alternattiva Demokratika electoral candidate Arnold Cassola had not been breached as a result of the Malta Labour Party's attempt to have him struck off the electoral register.

But Mr Justice Tonio Mallia set out a broader definition of the term residence than simply habitual physical presence in a place, saying that one had to bear in mind the circumstances of the individual.

"It is up to the courts to decide whether, in the light of the particular circumstances, a person's absence from the country is continuous or permanent such that the individual is to be considered as having lost all contact and interest in the country where he wants to vote," Mr Justice Mallia ruled.

Any interpretation of the word physical, to cause it to mean a continuous physical presence in the country would lead to the denial of the right to vote to persons who had a direct and personal interest in their country's future.

Mr Justice Mallia laid down that residence did not mean simply physical presence in a country but included in its meaning periodic absences from the country.

A person temporarily absent from Malta for reasons of study, health, work or a mission should not be considered a non-resident of the country.

An individual who travelled overseas to study or work was still directly and continuously concerned with the political activity in his country and this was not therefore a valid reason to deny such person his right to vote, the judge ruled.

Mr Justice Mallia noted that Cassola was listed in the electoral register but MLP general secretary Jimmy Magro had filed an application for his removal on the grounds that Cassola did not satisfy the requisite of residence in Malta.

This requisite was imposed by law.

For a person to be qualified as a voter, he had to be a Maltese national, over 18 years of age, and had to be resident in Malta for a period of six months in the 18 months preceding his registration as a voter.

The law also stipulated that the six-month residence was not a requisite in the case of a person ordinarily resident in Malta but absent from the country on overseas service, in the public service or as a member of a disciplined force.

Cassola was not attacking the validity of this provision of the law, found in the Constitution, but was contesting Magro's right, on behalf of the MLP, to contest his eligibility to be on the electoral register on the grounds that the exercise of such right was in violation of his fundamental human rights.

Mr Justice Mallia added that no person could claim an absolute and unlimited right to vote in elections, for caselaw of the European Court of Human Rights had established that the right to vote and the right to stand for election could be subject to legitimate restrictions imposed by the state.

Such restrictions could not be arbitrarily imposed nor could they constitute an obstacle to the right of the public in general to express its wishes in an election.

The restrictions imposed by the Constitution referred to citizenship, age and residence.

The imposition of a minimum age to vote had been accepted as a valid limitation by the European Court of Human Rights, as had the limitation of residence.

But residence should not be interpreted in such a way as to give an unnatural meaning to the word.

The Constitution provided that a person who was not resident in Malta could still be entitled to vote if his absence from the country was due to an appointment in the public service.

Mr Justice Mallia added that the distinction between residence and ordinary residence was not so clear.

A decision of the English courts, delivered in 1951, had concluded that neither residence nor ordinary residence required continuous physical presence in a country but required physical presence with some degree of continuity that depended upon the particular circumstances of the case.

On the alleged breach of human rights, Mr Justice Mallia ruled that the application filed by Magro against Cassola had not yet been decided and Cassola's case was therefore still being investigated by the revising officer.

Thus, at present, Cassola's name had not been removed from the electoral register, and it could not be said that at this stage his right to vote had been prejudiced.

The revising officer had still to interpret and apply the electoral law and the Constitution to Cassola's particular case, and until this was done, the courts could not investigate whether the laws had been applied to Cassola in violation of his fundamental human rights.

The court concluded that Magro, both in his personal capacity and on behalf of the MLP, had every right to file his electoral application in Cassola's regard and Cassola's constitutional application was therefore dismissed.

The court declared that it was not going to apportion costs in the case due to the novelty of the subject matter.

Dr Tonio Azzopardi and Dr Harry Vassallo were counsel to Cassola.

Prof. Ian Refalo was counsel to the electoral commission.

The MLP and Magro did not appear.