A few days ago, the First Hall of the Civil Court, in its constitutional jurisdiction, delivered its judgment and declared that, following mistakes in the counting process, the Electoral Commission was in breach of the European Convention of Fundamental Human Rights. It awarded the Nationalist Party two additional seats as a remedy for the prejudice sustained following the violation of the right to a free and fair election in terms of article 3 of the First Protocol of the European Convention.

I first served as the initial promoter of the case, bringing forward the claims in my capacity as general secretary of the PN and later served the party as one of the lawyers on the case. It is not my intention to go into the merits of the judgment that may be subject to an appeal. I will deal with those in the right forum – the courtroom – as things seem to be going in that direction.

Nevertheless, there is an important element that needs to be considered beyond the judicial process: the necessity for a more serious and dynamic approach adopted by the Electoral Commission in its powers granted under article 61 of the Constitution to review and alter the boundaries of electoral divisions and to prevent flaws arising from skewed electoral divisions that subsequently result in excessively disproportionate parliamentary representation. The 2013 elections gave this result.

The electoral divisions as designed gave Labour a 13-seat majority over the PN

The constitutional amendments of 1987, 1998 and 2007 contemplated in article 52 of the Constitution were designed and developed to guarantee and fine-tune the corrective measures when the necessity arises following such skewed and distorted results.

Some argue that the composition of each electoral division, revised in any manner by the Electoral Commission, is today irrelevant due to the corrective measures contemplated in article 52 of the Constitution to protect the principle of strict proportionality in parliamentary representation.

True as this argument may be, these amendments have caused the Commission to slip in its responsibility granted to it by the Constitution to take the right, in-depth, correct and necessary a priori measures to revise the electoral boundaries in terms of article 61 with the proper insight of their composition intended also to limit any negative repercussions on proportionality.

The Electoral Commission failed miserably in the manner in which it designed the electoral boundaries in the run-up to the 2013 elections. The mistakes admitted by it in the counting process made its failure even worse.

These constitutional shortcomings of the Electoral Commission gave the Labour Party a 60 per cent majority in Parliament as opposed to the 55.8 per cent ‘real’ parliamentary representation duly accorded to it by popular vote. At the same time, it gave the PN a 40 per cent minority instead of the 44.2 per cent ‘real’ parliamentary representation duly accorded to it by the same vote of the electorate.

These shortcomings resulted in a skewed parliamentary lead of 20 per cent in favour of the PL over the PN instead of the ‘actual’ lead of 11.5 per cent according to the popular vote.

With a Parliament composed of 65 seats, each seat is weighted at 4,615 votes. Contrary to the spin by the PL, a simple calculation clearly shows that a 35,000-vote majority reflects itself into a majority of seven seats, not nine.

Before applying the corrective measures in terms of article 52 of the Constitution, the electoral divisions as designed by the Electoral Commission gave the PL a 13-seat majority over the PN for a ‘real’ majority of 35,000 votes.

This skewed result amounted to a weighted difference of votes in Parliament in favour of the PL equivalent to a majority of 60,000 between the two parties, rendering the majority of votes obtained excessively disproportionate to the majority of seats won in Parliament.

This clearly shows that the Electoral Commission has, even more so today, a greater responsibility to revise and alter the electoral boundaries in a manner that should really safeguard an electoral process from beginning to end.

In the last election, the Electoral Commission seems to have failed both at the beginning and at the end of the whole process.

Paul Borg Olivier is the former general secretary of the Nationalist Party

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