Electoral law review - Martin Scicluna
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Electoral law review - Martin Scicluna

Photo: Darrin Zammit Lupi

Photo: Darrin Zammit Lupi

Austin Bencini, an eminent constitutional lawyer, has just published an account of the evolution of Malta’s electoral system: Malta’s Electoral System. A Constitutional Review. It is an extensive and comprehensive study, describing how the system has developed throughout the last 100 years since self-government in 1921. 

The book provides an invaluable background and context for considering today what changes might be necessary to Malta’s 1964 Constitution. It examines in minute detail each of the 24 general elections held between 1921 and 2017. You don’t have to be an electoral law nerd to find this book historically interesting. 

The proportional representation electoral system by means of the single transferable vote (STV) is entrenched in Malta’s democracy. Bencini explains the advantages and disadvantages of the system, the way it was introduced and analyses its historical origins, the political controversies it generated and how it has shaped Maltese politics. This detailed record evokes a vital part of Malta’s history and democratic development.

There can be little doubt what the British colonial authorities had in mind when they introduced STV to Malta in 1921, which they also embedded in the Irish Free State one year later. They were concerned that the long-standing Westminster electoral system of first-past-the-post would lead to the “nationalist movements” in both countries – which were then in the majority – sweeping all before them to the detriment of minorities. 

From the British government’s perspective, this would have opened up, in Ireland and Malta, the strong, but politically undesirable, possibility of too much power being vested in governments elected with a strong mandate for change. Divide and rule was the pragmatic approach adopted by the British imperial authorities of the day. And who is to blame them for exercising realpolitik in that way, especially as history has proved them to have been right?

We can see now the wisdom and benefit of that decision, albeit not for the reasons that led to it almost a century ago. From the very first election using the STV system, minority parties were protected and democratically represented, albeit no single party gained an absolute majority.

But the crux of this excellent book is the way in which the STV system has been amended in the last 32 years to produce what Bencini calls a “hybrid” electoral system, combining STV with a “corrective mechanism” that always ensures that the party that secures the majority of first count votes gets to form the government – in effect providing the same benefits of a first-past-the-post, winner-takes-all system.

There have been three corrective mechanisms introduced (in 1987, 1996 and 2007) – a typically ingenious Maltese solution to a major problem – designed to ensure positive electoral results are achieved when the STV method, through gerrymandering or any other statistical cause, produces an unfair result. 

An “unfair result” is deemed to have happened – as it did famously in 1981 – when a party, despite obtaining the largest number of first preference votes in the election is more disadvantaged than another in the actual distribution of seats under STV, thus producing a perverse result.

The Maltese are not natural team players, and the essence of coalitions lies in a willingness to compromise on policies and manifesto commitments

All the general elections held in Malta between 1921 and 1966, with the exception of one in 1955, led to at least three parties being elected. It is only in the subsequent post-Independence general elections that two parties – the Nationalist Party and the Labour Party – have invariably been elected to Parliament. This has led to the proposition that the system should be changed because it does not favour smaller parties, thus leaving a sizeable part of the electorate unrepresented in Parliament.

For the last 50 years, Malta has effectively been ruled by a two-party hegemony. This has come about for two reasons. First, the political spoils in such a small electorate are inevitably constrained. Secondly, more importantly, the two main political parties do not limit the number of candidates who contest constituencies. Thus, they allow for competition between their own candidates. 

It gives most aspiring politicians an entry, or at least the prospect of entry, into the parliamentary ranks of either party as they are not excluded from party lists by virtue of there being some upper limit to the number of candidates who can contest a given constituency.

In any revision of the Constitution, there are legitimate arguments for proposing that “emancipating the Constitution from the tutelage of the two major political parties” is intrinsically a desirable objective to achieve a fairer representative democracy where seats match the votes cast. 

The changes introduced in 1987, 1996 and 2007 have reduced the margins for gerrymandering as they were intended to, but this has left a significant minority of the electorate disenfranchised and unrepresented in Parliament.                  

One solution which has been put forward for consideration is that the proportion of votes needed in each constituency for election to Parliament – the quota – should be reduced to, say, five or eight per cent – thus opening the field to healthy competition from other political parties, such as the Democratic Party and Alternattiva; and that the current 13-district constituency arrangement should be replaced by one single district as is already the case in elections to the European Union Parliament.

There is an important caveat attached to any tinkering with the hybrid system that has served Malta well for the last three decades. While changes which allowed smaller parties to be elected to Parliament would lead thousands of voters to feel they are properly represented and have a voice, this must be balanced against the undoubted benefits that the hybrid STV combined with the corrective mechanism has given Malta.

While fairness argues for an end to the current duopoly on political representation by the Nationalist Party and Labour Party by increasing the chance of smaller parties getting elected, the instability which could arise through their holding the balance of power in the House of Representatives – leading to coalition government – should not be underestimated. 

The Maltese are not natural team players, and the essence of coalitions lies in a willingness to compromise on policies and manifesto commitments for the greater good of the country.

The possibility of the strong and stable democratic government, which the STV hybrid currently provides – with the people knowing exactly which party is accountable – should not be abandoned lightly.   

This is a Times of Malta print opinion piece

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