It is very evident that the Maltese and Gozitan voters still do not have the electoral system each deserves, and if there lingered any further doubts, the Constitutional Court, per Madam Justice Jacqueline Padovani Grima, has now dispelled them, whatever the final outcome of the ‘two seats’ case may be.

This is said because at the very root of the problem lies something much deeper than an unacceptable voting counting error, which has still to be rectified, which has distorted the result of the 2013 general election. There lies the crack or, better still, the seismic fault of two electoral systems which the Constitution uses to run our elections but which are far from synchronised with each other.

Of course, the mother of all failed elections was the notorious ‘perverse’ outcome of the 1981 general election, when the workings of the proportional representation system through the single transferable vote, or PRSTV, manifestly failed to deliver a proportional result.

Then, the ‘party’ which had won the absolute majority of the votes at the first count got a minority of seats in the House of Representatives. Naturally, in Malta’s rigid two-party political system this meant that the losing party ended up with the absolute majority of the seats and, to boot, governed for a full five years against the wishes of the majority of the electorate.

The consolation, the proverbial ‘silver lining’ to this democratic injustice was that, by the 1987 election, the two parties had agreed to avoid the repetition of the 1981 democratically perverse result.

God forbid that we approach the coming general election without much-needed electoral reform

Mysteriously, or, perhaps, perversely, the solution adopted was not to amend the workings of the PRSTV so that the system would become more proportional.

Instead, they agreed to install a totally separate mechanism from the workings of the PRSTV with the purpose to ‘correct’ any undemocratic results similar to that of the 1981 elections.

This new system, which works in parallel to the PRSTV, became known as the ‘corrective mechanism” and, in reality, it only was brought to life if and when the PRSTV malfunctioned. Otherwise, it remained dormant.

So, the corrective mechanism was used to restore a measure of democratic proportionality in four of the seven elections held from 1987 (those of 1987, 1996, 2008 and 2013).

So far so bad. However, what is relevant to the latest, present electoral predicament is that the PRSTV and the corrective mechanism do not read each other at all. It is similar to a patient requiring a heart transplant but the donated heart transmits its beat from outside the patient’s body.

This is so because an election takes place in two totally separate and distinct phases.

The Electoral Commission, at first, counts the votes solely through the rules of the PRSTV which, of course, means counting the votes in each of the 13 electoral districts in which Malta and Gozo are divided. It is only after the Electoral Commission declares the final and conclusive result of the PRSTV vote with 65 candidates declared elected as MPs that the corrective mechanism, if required because of a ‘perverse result’, comes into force.

This electoral anomaly lies at the very heart of our current electoral fiasco, in that the electoral system was allowed to pass on from the PRSTV system, which only reads single, individual candidates’ votes coupled with district results, to the corrective mechanism stage when the PRSTV result was manifestly erroneous. This, in turn, corrupted, as it were, the workings of the corrective mechanism since, logically, it was attempting to correct a result before that result was in itself complete and correct.

All this, therefore, explains the constitutional mess we now find ourselves in.

Put simply, the corrective mechanism asks two simple questions: is the final and correct outcome of individual candidates elected from the districts determined? If so, do the majority of the candidates now aggregated into party groups reflect proportionally the majority of the seats in the House?

Clearly, logically and rationally, the second question cannot be worked out correctly and finally until the first is answered correctly.

This is what Madam Justice Padovani Grima ascertained in the constitutional judgment at first instance and what the judgment simply took cognisance of.

The remedy proffered at the first instance and soon subject to an appeal before the Constitutional Court itself represents an exceptional correction based on the fundamental human right to democratic governance to declare that the PRSTV failed to elect in the first place three Nationalist candidates instead of two from the eight and thirteenth districts.

The Electoral Commission and the courts, however, had inexplicably failed to correct the error at the PRSTV stage of counting, thereby skewing the computation of the second corrective mechanism stage. This and only this is what the constitutional case is about.

God forbid that we approach the coming general election without much-needed electoral reform, which does away altogether with the present PRSTV and the corrective mechanism cohabitation. For this to take place, the system that elects individual candidates must also read political party results.

In other words, we should do away altogether with the corrective mechanism and introduce list-party voting through the PRSTV.

Austin Bencini is head of the Public Law Department at the university’s Faculty of Laws