The facts. Two political parties contested the 1981 general elections. The party that obtained the absolute majority of popular votes only elected the minority of seats in Parliament, while the party that obtained less popular support obtained the largest number of MPs. It used that result to wield unrestrained power over Malta for almost six years.

Was that result legal? Did it respect the Constitution? Dom Mintoff, the winner, denounced that outcome as perverse, but somehow managed to live with that perversion all the same. He had already famously boasted that “hu j*tn*jj*k mill-Kostituzzjoni”. If he could be faulted about anything, that would not include consistency.

I am reviving the issue purely as a matter of academic and historical interest. But also because that election result provides a textbook lesson in all that is wrong with our misunderstandings of the Constitution. It has been repeated a thousand times that if the electoral system worked that way, then the result was perfectly okay and the Maltese have to grin and bear it.

No they don’t. That result was a glaring violation of all that our Constitution presupposes as fundamental. That result wounded the very letter and essence of the Constitution. That result could not have been more unconstitutional had it gorged itself on energy drinks and tried.

There are some elementary rules in understanding constitutions which are, or should be, followed as a matter of course, always and anywhere. One is that every word in a constitution is there for a purpose, has a weighty meaning and should never be ignored. A second rule is that a provision of a constitution cannot be read in isolation, but only as part of an organic whole. This is called the principle of harmonious interpretation. You leave no word out, you interpret every word in a way that gives life to the underlying principles, without conflicts between them.

December 1981: The Times’ headline on the election result.

Let us apply these rules to our supreme law. The very first article of the Constitution, its booming mission statement, asserts two fundamental principles: first, that Malta is (imperative: must be), a DEMOCRATIC REPUBLIC founded on work, and second, that the republic is founded on the respect of the fundamental rights and freedoms of the individual. This Article sets the tone of the entire Constitution and basis of governance: democracy and human rights.

This priority Article makes everything else depend on these two constitutional prerequisites. The first: that everything in Malta must promote democracy and be in accordance with it. At its very basics, democracy means that the will of the majority must prevail. That is the absolute mini­mum for democracy to exist. Without it, the fundamentals of democracy collapse. If government is democratic it can be constitutional, if it is not democratic it is flagrantly unconstitutional.

So how consistent with the ‘democratic’ imperative was an election result which ensured that the absolute minority rules and the absolute majority be­comes irrelevant to the running of the State? Since when has democracy started to mean that the minority takes over and the majority yawns? How democratic is it that the absolute minority enjoys more seats in Parliament than the absolute majority? Is there even a sick semblance of democracy, the indispensable and elementary value of the Maltese State, when the absolute minority rules over the absolute majority? Is that democracy, or is it its very negation?

So there is absolutely no doubt that the 1981 election result was a manifest violation of the Constitution, of its very first principle, and hence null and void.

The essential concept of demo­cracy (rule by the majority) is so fundamental to the governance of Malta that it finds itself reiterated all over the constitutional text. For example, no limitation to the enjoyment of a human right is permissible unless that limitation “is reasonably justifiable in a demo­cratic society”. Our Constitution wants democracy to be the lifeblood of good governance; its absence only heralds the mass destruction of good governance. The 1981 result ensured that anti-democracy became the fundamental value of statecraft in Malta for almost six years.

But Article 1 lays down a second prerequisite. The Constitution’s mission statement asserts that the second pillar, indispensable for the Republic of Malta to survive, is the respect of the fundamental rights and freedoms of the individual. One of the fundamental rights and freedoms of the individual, in force in Malta since 1967, is the “right to free elections which will ensure the free expression of the opinion of the people in the choice of the legislature”. There is no doubt that the 1981 elections were free. The electorate was free to reward the loser and to punish the winner.

That result could not have been more unconstitutional had it gorged itself on energy drinks and tried

Does the outcome of an election which, in effect, disenfranchises the majority and ensures that the minority seizes power, represent “the free expression of the opinion of the people”?  The election result must reflect accurately “the ex­pression of the opinion of the people in the choice of the Legislature” – and “the people” clearly means the majority of the people, not the minority. The 1981 results, on the contrary, gave precedence to “the expression of the opinion of the minority”, and smothered “the opinion of the people”.

That result was not the expression of the will of the people, but the repression of the will of the people. That outcome flagrantly violated the second constitutional imperative, making that result manifestly null and void.

The democratic Constitution of Malta rejected the ‘first past the post’ electoral system still used in the UK, as this can give highly “perverse” results. Malta em­braced the ‘proportional representation’ system meant to guarantee fair and proportional re­sults. It will only outrage the will of the people when subjected to deliberate and toxic manipulation. But more of that later.

There is a third reason why those election results ravaged the very clear letter of the Constitution. In Article 64, the supreme law dictates that in drawing up the boundaries of electoral districts, “geographical vicinity” shall be a determining criterion; in other words, the areas included in one electoral district must be in physi­cal proximity to each other. One district can stitch together Floriana and Valletta, but it cannot lump Floriana with Mellieħa or Mosta with Marsaxlokk. That is what the Constitution commands, and that is what the 1981 handpicked gerrymanderers flouted.

Just look at the map of the electoral boundaries of 1981: there is some highly creative geography about it. Do Valletta, Marsa and Casal Paola touch at any place at all? No, there is Floriana wedged very inconveniently between them. No problem. Draw an imaginary line bet­ween them and, voilà, Valletta, Marsa and parts of Paola suddenly embrace each other in geographical vicinity.

Again, where do Floriana and Ħamrun share boundaries with Luqa? Right, nowhere. But a wizard corridor drawn on a fabricated map makes them instant bedfellows. In the UK they call that gerrymandering. In Malta I guess it would be called n*tn*jj*k mill-Kostituzzjoni. This third breach of the Constitution rendered the outcome null.

A fourth reason for the nullity of those elections again derives from the Constitution itself which, in Article 56, prescribes that “the members of the House of Representatives shall be elected upon the PRINCIPLE of PROPORTIONAL representation”. The Constitution orders that the electoral system must guarantee proportionality in the outcome: more votes, more seats; fewer votes, fewer seats. Surely the gerrymandering of electoral boundaries, which ensured that the party that obtained fewer votes in the arena then obtains more seats in Parliament, is the very opposite of ‘proportional’.

Was the fundamental principle of proportionality respected in the 1981 elections? No, it was the principle of disproportionality that triumphed. The fourth reason, this, why that result violated the Constitution and was therefore manifestly null and void. One reason would have been enough, but there were at least four piled up on top of each other.

Between 1981 and 1987, the usurping minority occupied the space of governance illegitimately and unconstitutionally. Nearly six years stolen from democracy. The perverse result was anything but legitimate. More like constitutional piracy, really. There cannot be the shadow of a doubt about that.

With so many reasons for finding that the election result obviously violated the Constitution, one may well ask why the Opposition, cheated of its right and duty to implement the popular will, did not challenge that outcome in the Constitutional Court. If you knew the award-winning amoebas in black silk and gold braid who dispensed (with) justice on the Constitutional Court, you would not even bother asking silly questions.

Giovanni Bonello served as judge at the European Court of Human Rights in Strasbourg for 12 years.