Cassola plus

In the run-up to the last elections thousands of applications were filed by the two parties represented in Parliament to remove one another's supporters from the electoral register. The attempt to remove Arnold Cassola on the grounds of absence from Malta brought to light a massacre of political rights that had been going on for months and which had been repeated at every election for generations.

Both the Nationalist Party and the Malta Labour Party commit a significant portion of their resources to reviewing the electoral register and to weeding out undesirables. Conveniently for them, the cost for filing the applications which occupy as many as five of the magistrates' courts at a time, is nothing at all. The cost to private citizens who would choose to contest their elimination from the electoral register as a breach of human rights would run into hundreds of liri each.

Understandably, the proceedings for the elimination of citizens' rights to vote is extremely fast: industrialised justice. A policeman reporting neighbours' hearsay that the person in question has not been heard of for some time is enough to zap anyone off the list - in his or her absence. There seems to be some horse-trading between the PN and MLP on this: you turn a blind eye on this one and I will look the other way for one of yours.

The PN blundered badly when some party hack thought up the bright idea of eliminating virtually every voter of venerable age on grounds of mental infirmity. Some PN poll must have indicated a heightened aversion for EU membership among the not so young.

The idiotic idea of sending our grandmothers to have their heads examined was quickly scrapped and PN fanatics pointed to the magnanimity of the PN in admitting their mistake. Some people can take credit for anything.

Not so the MLP. They were busy eliminating everyone and anyone suspected of non-MLP sympathies who had overstayed abroad. The debate in Parliament proposing an amendment of the Constitution to allow Maltese citizens, who had been abroad longer than the Constitution allowed, had given rise to a hope for a more liberal interpretation. All hopes were dashed when some wrangle went against the MLP which reverted to its customary practice of wholesale elimination of voters. The PN also carried on with business as usual.

Voters were threatened with criminal proceedings if they voted regardless of the constitutional stopwatch on their absence from Malta: a second more than six months away in the previous 18 months and a Lm500 fine would come smashing down, the MLP claimed.

Some people came back to vote in the EU referendum but balked at the gate. Fines were bad enough but criminal proceedings interrupting their studies or other reasons for being abroad could be fatal. EU membership wasn't worth the personal risk.

The voter elimination harvest carried on long after the publication of the electoral register. Many voters assumed that they were out for the count not realising that the Referendum Act stated unequivocally that those entitled to vote were those listed on the electoral register at the publication of the writ to hold the referendum. Many of those who fell victim to the combined zeal of the PN and MLP simply failed to vote in the EU referendum when they were fully entitled to do so.

Professor Cassola refused to be fooled. He knew what the law prescribed and, despite pending proceedings for the cancellation of his voting rights, he voted on March 8 nearly causing a riot with the MLP supporters toeing the line at his polling station when he waved his voting card in defiance. Many people are still irritated at him for having cheated. They have no idea that he was able to defy his rivals because the law was fully in his favour. Who knows how many people were unable to face the MLP's ire with similar aplomb and simply gave up their voting rights under propaganda pressure?

Once the MLP had put their foot in it with Cassola, they plunged in completely and persisted with their attempt to eliminate him from the general election. With his conveyer belt case coming up before the Reviewing Officer, it was decided to file a constitutional case challenging the elimination proceedings.

The court decided that no violation of Cassola's rights had taken place because no judgment had yet been made on the issue. Perhaps it was a good thing that Cassola wasn't facing a death sentence or the violation would have been documented a little late.

However, the court did make a landmark judgment. It went to great pains reviewing foreign and Maltese judgments on the interpretation to be given to "residence" as a qualification of voters in the constitution.

Since Dr Harry Vassallo pro et noe vs the Principal Electoral Commissioner and Jimmy Magro of March 21, 2003, every Maltese citizen enjoys a greater political freedom. Residence is no longer a stopwatch affair. "Residence does not mean a physical presence in the country," the court decided. "A person abroad for study or work purposes may still be directly and continuously concerned with political activity in his country of residence and there lies no justification for the denial of that person's right to vote. Any other interpretation of the word 'residence' that is, a continuous physical presence in the country, could lead to a denial of the right to vote to a person having a direct and personal interest in the country's future and this in violation of Article 3 of the First Protocol of the European Convention on Human Rights."

Cassola won his case before the Reviewing Officer because the MLP failed to prove that he had been absent from Malta at all in the 18 months prior to the election. There was no further need to raise the issue of the recent Constitutional Court judgment. Cassola voted and stood for election on April 12.

Hundreds if not thousands of people were eliminated from the electoral register because the burden of proof was inverted in their cases; because the Reviewing Officer was satisfied with absurdly thin evidence or the now insufficient computation of absence from Malta.

Amazingly, Parliament is now girding itself for another massacre. The European Elections Bill placed on the Table of the House takes no account of the Cassola case and prepares for business as usual. This time round everybody and anybody served with a notice to appear before a Reviewing Officer to be eliminated from the electoral register because of alleged absence from Malta is well armed to rebut the charge.

Not only does the eliminating political party have to prove physical absence but also the quality of absence, i.e. not only six months physical absence from Malta but six months in which the person concerned no longer was "directly and personally" interested in the future of his country. A simple declaration to the contrary by the voter should be enough to dispel the court's doubts or to create enough of them to safeguard the voter's rights.

An exception has been made in the Bill favouring Maltese citizens resident in an EU member state (the EU makes this mandatory). However the situation remains unchanged for persons temporarily present in other parts of the world. People studying or working in the EU are safe, but if you work in Libya or study in the Unted States you could get zapped off the electoral register.

It's time that the Maltese Parliament realised that it is now committed to implementing the European Convention on Human Rights and also to give due weight to the interpretation of the constitution by our own courts. Should Parliament fail to do so Alternattiva Demokratika would be more than glad to file a constitional case in favour of everybody incorrectly struck off the electoral register. Some things we have won in this election and won for everybody. It's not just Professor Cassola we care about.

Dr Vassallo is chairman of Alternattiva Demokratika