Matthew Xuereb
Lawyer gave advice to publish writ immediately
The President’s writ that set in motion the divorce referendum process had to be published immediately and could not have been withheld for any reason, according to the legal advice given to the Electoral Commission by its lawyer Ian Refalo.
The commission had been discussing the possibility of delaying publication of the President’s writ to enable those who turned 18 in the past six months to vote in the referendum to be held on May 28.
On Tuesday, Prof. Refalo wrote to the commission saying in essence that the writ was an order issued by the country’s President and could not be delayed. The letter, seen by The Times, emerged as the two major parties squabbled over who was to blame for cheating 2,800 youngsters out of their vote.
On Thursday, the Labour Party accused Prime Minister Lawrence Gonzi of denying these people the right to vote by using his electoral commissioners to publish a referendum writ on Wednesday.
This means the referendum must be based on October’s electoral register rather than a fresh one which would have been released later this month to include all those who turned 18 between October 1 and March 31.
Labour argued that the commissioners who represent it had proposed a solution that would have allowed these new 18-year-olds to participate. The party would have moved a parliamentary resolution that would have allowed the referendum writ to be published as late as April 18.
However, before Labour’s statement was released, Prof. Refalo had already given the commission his legal advice: although the law did not stipulate the exact timing for the publication of the President’s writ, this should be published as soon as it was signed by the President.
“While delaying the publication of the writ is not legally incorrect, it is not desirable since I believe that once the commission has received a declaration from the President, which is nothing but an order from the President for the holding of an election or a referendum, the commission should immediately take action, rather than procrastinate,” Prof. Refalo said in his letter.
He also said “it would be wise if the writ should be published as soon as possible after having received it”. Prof. Refalo’s legal advice went against Labour’s proposal to delay the publication of the President’s referendum writ through the parliamentary resolution.
Labour’s motion for a referendum on divorce, approved by Parliament on March 16, stipulated that the President’s writ had to be signed within 15 days, therefore not later than March 31. The writ was published on March 30, a day after the commission received legal advice to publish it as soon as it is received.
The Nationalist Party had blame Labour for the “mess” that deprived 2,800 young people of the right to vote. It said Labour admitted that its commissioners proposed to “play around” with the electoral law to postpone the publication of the writ.
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J.Tonna
Apr 3rd 2011, 17:30
We are noticing some Pro-Divorce writers saying that they will not vote as they are 100% sure that the Anti-Divorce voters will win the referendum.
This is probably a trick to fool Anti-Divorce voters not to vote as well, for the same reason.
Most probably in the PL lost the last election for the same reason too. They were so sure that Labour will win the election that they did not bother to vote and everybody knows what happened.
Remember that every vote counts, abstentions do not count as pro or anti Divorce votes. So it is our duty to make the sacrifice and vote.
Mike Magri
Apr 3rd 2011, 10:11
Quote 1.. "..The President’s writ that set in motion the divorce referendum process had to be published immediately and could not have been withheld for any reason, according to the legal advice given to the Electoral Commission by its lawyer Ian Refalo..."
Quote 2..“..While delaying the publication of the writ is NOT LEGALY INCORRECT,......"
Conclusion.. Will the real Prof. Ian Refalo please stand up and just keep his stand that there is nothing legaly wrong in delaying this writ to April 18th....!!??!!??
Question.. OR, does this then mean that although Prof Refalo sees a `LEGAL` loop hole in this law, he is `pressed` to confuse the issue, accordingly...!!!
As far as i am concerned, i can only say... SHAME ON ALL OF YOU who for `incorrect` reasons and / or political agendas, are going to DEPRIVE, some 2800 first time voters from taking a stand on this referendum divorce law.
GHARUKAZA............!!!!!!!!!!!!!!!!!111
Joe Zammit
Apr 3rd 2011, 08:22
The great majority of PL supporters are against divorce.
The great majority of PN supporters are against divorce.
The great majority of Maltese and Gozitans are against divorce.
All these majorities are positive people: in favour of the indissolubility of marriage.
Join in the battle between God and the devil! Fight the good fight! The victory is ours, it's already guaranteed!
Joseph Vassallo
Apr 2nd 2011, 17:03
If anyone were to ask me if I can think of a reason why the legislators didn't impose that the Presidential writ has to be published immediately-on-receipt, I would have to opine they intended that chronological proximity would justify proportional delay for the sake of including newly eligible voters to participate in the process.
I do think that two weeks, as in this case, is "proximity" enough. As Profs Refalo said, it would not have been legally incorrect.
The point is that being young and mostly well-read, educated and not readily influenced by the threat of mortal sin, they would have been more likely to vote in favour of the introduction of divorce. This is not what the incumbent authority wants.
However, I would not go so far as to call this pedantic decision "gerrymandering".
Victor Laiviera
Apr 2nd 2011, 18:43
Well said.
"Gerrymandering" is usually taken to mean the rearrangement of electoral boundaries to gain political advantage.
As the PN tried to do (unsuccessfully) in 1971 and as the (M)LP did (more successfully) in 1981.
jsammut
Apr 2nd 2011, 16:13
THEY HAVE THE RIGHT TO VOTE
c.camilleri
Apr 2nd 2011, 15:56
Labour still adhere to their old filthy practices. Fiddling with the electoral laws.
Victor Laiviera
Apr 2nd 2011, 17:45
No fiddling at all was required - just a less rigid and opportunistic interpretation of the law as it stands
david debattista
Apr 2nd 2011, 15:00
If there is a mess then it must be cleared up, but to deprive 2800 Maltese citizen to vote on such a important and integral issue in their lives is a crime upon both your heads! Transparency and less violence to reason ......... please .
Alfred Muscat
Apr 2nd 2011, 14:43
Again the PL saw as far as their nose.....They were so hasty to get a vote in their favour from Parliament that did not realise that 15 days from the approval of the motion in Parliament would still be March and not April when the new register should have include all new 18 year olds. So blame the PN. Instaed they should blame themselves for making things in a rush.
C.Camilleri
Apr 2nd 2011, 13:52
I have a strong feeling that the majority of the 2800 deprived from voting in the coming referendum are pro-divorce, cause otherwise a solution would have been found.
James De Giorgio
Apr 2nd 2011, 12:23
As far as I know whenever an election or referendum is held, the electoral register is always the one which closes the october before.
PL are therefore acting immaturely and trying to gain some very obvious political mileage. Why the squabbling, let's get on with it.
Anthony Farrugia
Apr 2nd 2011, 11:54
This morning I received an unsolicited spam email from the PL with Joseph Muscat droning that those voterswho turned 18 after October would not be eligible to vote because of the Great Stan that is the PN. He should have read the parliamentary motion more closely.........hoist on his own petard, not for the first time.
j xerri
Apr 2nd 2011, 11:41
If for the sake of argument one is to agree with the PN view, hasn't the Government still to carry part of the blame when they kept silent when the knew of the flaw in Muscat's motion? Or political mileage is more important than the vote?
Joseph Vassallo
Apr 2nd 2011, 17:19
The task of either political party is to do its utmost to get as many votes as possible behind its own line. So, what you suggest is not logical; if a party makes a faux-pas there would be no sense in highlighting it and lose an advantage. It's all in the game, my friend.
J.Tonna
Apr 2nd 2011, 11:35
I do not remember how the Maltese saying " IL-QATTUSA GHAGGELIJA ......." ends.
Another good one is "Il-hobz tih lil min jaf jieklu'.
Victor Laiviera
Apr 2nd 2011, 10:37
In my humble (non-legal) opinion, the key phrase in that report is "delaying the publication of the writ is not legally incorrect".
So the advice to publish it immediately was just Dr Refalo's personal opinion.
There would have been nothing illegal, unethical and/or unconstitutional in delaying the publication (by transparent consensus in Parliament) in order to allow 2,800 young people who (in all probability) will be most affected by the proposed legislation, to express their opinion.
Joseph Cauchi
Apr 2nd 2011, 11:12
@ Laviera,
One is considered wise when one knows when to stop defending a losing cause!
JC.
MBorg
Apr 2nd 2011, 11:30
If this is legal matter, would it not be better if others stop form giving their non-legal opinion ?
Victor Laiviera
Apr 2nd 2011, 11:56
I'll keep that in mind, should the occasion arise, Mr Cauchi
Phuilip Hili
Apr 2nd 2011, 16:24
Sorry Mr. Laiviera,
Biex ser naghbbu?
Mela anke biex tippruvaw iggibu "l-bocca qrib il-lik" lesti li tilghabu bil-principji tas-sewwa?
Ghadkom ma nndimtux?
Meta ser titghalmu li bis-sewwa ma jqarrraq hadd?
Anzi siehbek Dr. Joseph Muscat qal li "ssewwa jirbah sgur" darba!!! Issa ghax is-sewwa rebah bhal ma qal Dr. Joseph Muscat ser tiehduha kontra tieghu?
X'ridt tghid biha:-
"So the advice to publish it immediately was just Dr Refalo's personal opinion."
So are you insinuating that Dr. Refalo's advice to the Electoral Commission was not correct because as you said it was his "personal opinion"? As far as I am concerned when a lawyer gives an advice he gives it according to law and not in his opinion. Sometimes there are instances where the personal opinion of the lawyer differs to that of the law. So according to you, in cases like this, personal opinion of the lawyer is binding, even though he knows that his opinion differs to that of the law?
Hallina sur Laiviera!!! QATT ma intkom ser titghalmu, anzi ma tridux titghalmu u kemm iddumu ma titghalmu izjed ser tiqbghu fl-oppozizzjoni.
Phuilip Hili
Apr 2nd 2011, 16:31
Sur Laiviera,
Taf x'fakkarni l-kumment tieghek? Fakkarni fit-TBAZWIR ta' Dr. Alfred Sant meta qal :- u iva, bazwar l'hawn u bazwa l'hin!!!! Addio r-regoli tal-ligi!!. Kieku kien minn ghalikom hekk knotu taghmlu, TBAZWRU FTIT biex taghmlu dak li jaqblilkom. Hekk ser imexxi l-Partit Progressiv jekk Alla hares qatt jiehu l-gvern??
Henry S PACE
Apr 2nd 2011, 10:23
''He also said “it would be wise if the writ should be published as soon as possible after having received it”. Prof. Refalo’s legal advice went against Labour’s proposal to delay the publication of the President’s referendum writ through the parliamentary resolution.
Labour’s motion for a referendum on divorce, approved by Parliament on March 16, stipulated that the President’s writ had to be signed within 15 days, therefore not later than March 31. The writ was published on March 30, a day after the commission received legal advice to publish it as soon as it is received ''
As PL Leader is not in the Legal Profession it appears that he was ill-advised by his two Deputy Leaders who are both Advocates. Its either through the rush of all proceedings of the motion or this was caused by lack of forsight in the timing as stated in the Parliamentary Motion. God forbid if we go to the 80s' where laws where stretched to the conviencence of our Political people.
Just a reminder to such stretching of the laws in question are the' Blue Sisters Case', 'The Casino' and the' Electronic Board' on the NP Club in Valletta General Elections 1981
Andrew Borg-Cardona
Apr 2nd 2011, 09:23
http://www.timesofmalta.com/blogs/view/20110331/andrew-borg-cardona/elastic-facts
I love it when I'm right....
Joe Cassar
Apr 2nd 2011, 11:18
Not this time.
MBorg
Apr 2nd 2011, 15:06
@ Joe Cassar
And how, he is right.!
Maybe you did not understand what he wrote ? It happens sometimes you know !