Presented with the option of possibly breaching fundamental human rights or else failing to apply the law, four members of the Electoral Commission opted for the latter.

This emerged  in court as several members of the Electoral Commission took
the witness stand in civil proceedings instituted by the Nationalist Party, claiming that the mechanism envisaged by the Financing of Political Parties Act could violate fundamental human rights.

Lawyer Ray Zammit, a member of the Commission since 2006, gave a  detailed
overview of the composition of the commission: four members nominated by the Opposition, four by the government and a chairman generally agreed upon by both sides.

Dr Zammit said when the party financing legislation was proposed in 2013, he had immediately said it would be wrong to burden the Commission with the role of investigator and adjudicator. He believed such a role fell outside the Commission’s remit and suggested setting up a sub-committee chaired by a retired member of the judiciary who would operate with an auditor and a secretary in gathering evidence related to any complaint filed under the Financing of Political Parties Act. This would at least separate the investigative and decision-making roles.

This suggestion was taken up, and retired Judge Geoffrey Valenzia was selected unanimously by the members. However, the auditor was not approved unanimously. 

The four Opposition-nominated members wrote to the President highlighting the conflict in the Commission, only to be told the matter fell beyond the President’s powers.

Doubtful of the constitutional validity of the process envisaged under the Financing of Political Parties Act, the four Commission members refrained from further participation in such procedures.

Bearing in mind that the law provided for administrative fines which could possibly reach €50,000, Dr Zammit said such issues should have never been left to the Electoral Commission but entrusted to another institution like the Auditor General.

However, Paul Sammut, a government-nominated member, said that once the party financing law had been approved by the “69 experts” in Parliament, he believed in abiding by it. Only by testing this legislation and the mechanism thereunder could its efficacy be judged, he said.

Prof. Ian Refalo was counsel to the Commission, and lawyer Jason Azzopardi was
counsel to Rosette Thake,  Nationalist Party general secretary.