When the Nationalist Party proposed a human rights action concerning the 2013 general election result, the Constitutional Court allowed the case to proceed. I wrote in this newspaper on June 17, 2016 (‘An irreconcilability’) that the court’s reasoning was flawed basing my argument on a judgment delivered in 1928 by the Court of Appeal presided by Sir Arturo Mercieca, an outstanding legal luminary and jurist of the last century.
This judgment was confirmed by the Judicial Committee of the Privy Council in 1930. The Constitutional Court, however, ignored these two landmark electoral law judgments.
On April 24, 2017 (‘Unregistered parties can still contest general election’) I argued that the Financing of Political Parties Act was ill-drafted and inconsistent with the General Elections Act. Difficulties with the financing law range from a completely misleading short title (it does not simply regulate the financing of political parties but also political parties in general) to not containing sufficient consequential amendments to the election law, such that these two laws have not been brought perfectly in unison. The definition of a ‘political party’ poses another difficulty. The financing law is also unenforceable by the courts of criminal jurisdiction.
The June 2017 Labour Party constitutional case regarding the correct application by the Electoral Commission of the corrective electoral mechanism contained in section 52 of the Constitution is a case where a consequential amendment to the election law would have ensured that there would have been no conflict between the election law and the financing law.
First, it must be clarified that constitutionally speaking the election law, though an ordinary law, is superior in legal status to the financing law. If there is a conflict between these two laws, it is the election law which should prevail in relation to the matters contemplated by, for instance, articles 52(3) and 56(8) of the Constitution.
Article 52(3) refers to the Thirteenth Schedule of the election law which establishes the procedure for determining in the House of Representatives additional MPs to the standard 65 provided for by the Constitution.
Second, it is incorrect, both in terms of the Constitution and the election law, to state that in the House there exists an opposition coalition and that, therefore, there are three political parties represented in the House. In terms of the pre-election pact between the PN and the Democratic Party as translated in the ballot paper, all PD candidates have contested the general election under the PN banner.
The Electoral Commission was correct to consider Marlene Farrugia as a PN, not as a PD, candidate
Hence, for the purposes of the election law, there is no PD MP in the House but only Labour Party and PN MPs. To date, any declarations to the contrary made outside the House by Marlene Farrugia have no bearing.
Third, it is a non sequitur to imply that because Farrugia is the PD’s leader and is so registered with the Electoral Commission in terms of the financing law, she automatically represents the PD in the House. The two laws have different purposes and there is no cross reference from one law to the other in this respect apart from matters related to campaign expenditure.
Registration with the Electoral Commission under the financing law is one thing and contesting the general election by a PD candidate on the PN ticket under the election law is a totally unrelated thing. The reason for this defect is that when the financing law was enacted, no consequential amendment was made to the election law in relation to House representation.
But the latter law has the upper hand as to House membership determination not only because of its constitutionally derived superiority over other laws(the financing law being one) but also because it is the special law on electoral matters recognised by the Constitution (see, e.g., article 54 of the Constitution in addition to the above quoted provisions of the Constitution).
Fourth, there is no prohibition in the financing law for a person to be a member of more than one political party.
Fifth, whether it makes sense to have the PD leader in the House representing the PN rather than the PD is another matter. This difficulty arose because the Constitution does not allow the formation of a coalition between two or more political parties which contest a general election under the banner of that coalition.
If the PN and PD wanted to contest the general election under the name of ‘National Force’ instead of PN, this would not have been possible: the election law does not allow it. The latter legislation does not recognise the formation of a coalition by a number of political parties; nor does it allow them to contest under the banner of a new political entity formed by them.
This inimical attitude of the election law towards coalitions simply leads to one party being subsumed within the other party for electoral purposes, whereby the PD lost completely its identity as a political party on the ballot paper – at least from an electoral point of view – and ended up an appendage of the PN with the only way of limitedly retaining its identity was by referring to PD candidates on the ballot paper as tal-orangjo.
Legally, Farrugia has been elected to the House as a PN MP, not as a PD MP. This is what the ballot paper said.
There is nothing at law which stops Farrugia, after she subscribes to the oath of office of MP, from declaring herself (as she did in the last legislature) an independent candidate representing the PD interests, not those of the PN. This will bring a change to the pre-electoral pact entered into between the PN and PD.
But it will not influence the outcome of the two additional seats awarded by the Electoral Commission to the PN because when these were allocated Farrugia was a PN MP.
The Electoral Commission was correct to consider Farrugia as a PN, not as a PD, candidate. Yet it is clear that: (i) the financing law needs revisiting to be brought in line with the election law; (ii) the latter law should be amended to allow a coalition to contest a general election under its own banner rather than that of one of the political parties contesting a general election (provided that such coalition would be formed from amongst registered political parties under the financing law);
And (iii) the Constitution is amended to contemplate the situation where three, not two, political parties make it to the House for, as things stand to date, the corrective mechanism applies where only two political parties are represented in the House.
Although a decision on this matter (and other electoral issues) has been delayed by both major political parties in the House, the time is ripe to resolve this quandary to nip in the bud any future constitutional crisis.
Hopefully the Constitutional Court gives the correct interpretation of the electoral law and Parliament follows suit by amending the laws in question to implement the necessary clarification.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.