The constitutional court awarded the Nationalist Party two extra seats to remedy a mistake in the last general election. Kurt Sansone looks at the implications of the court’s decision.

Nationalist Party MP Claudette Buttigieg had failed to get elected on her own steam by a mere eight votes at the 2013 general election.

It should have been a moment of glory for the TV-presenter-turned-politician, who on her first attempt at national politics was only nudged out of the race at the last count by Labour candidate Edward Scicluna.

But although Ms Buttigieg eventually did make it to Parliament through the constitutional mechanism that awards political parties extra seats to ensure proportionality between votes and seats, her experience was soured.

A mistake during the vote sorting process meant that a packet of 50 first count votes that belonged to Ms Buttigieg was misplaced and transferred to another PN candidate.

Had those 50 votes been in Ms Buttigieg’s pigeon hole, she would have made it on her own steam and the Birkirkara district where she contested would have returned three PN MPs, not two.

Ms Buttigieg had contested this error when it became apparent during the counting process but it was only last week that her contestations were vindicated in a ruling delivered by the constitutional court.

Whatever the outcome of the legal wrangling, I would have thought the Commissioner should consider his position

In a 72-page judgment Madame Justice Jacqueline Padovani Grima found Ms Buttigieg’s human rights were breached and as a consequence the PN was prejudiced because it ended up with a nine-seat disadvantage in Parliament rather than a seven-seat deficit.

The logical consequence of the judge’s ruling would have been to unseat the Labour MP elected on the eighth district – Joe Debono Grech, who was elected in a by-election to replace Edward Scicluna, who was elected on two districts – and award a seat to the PN. In this way Labour’s parliamentary majority would have been curtailed to seven seats.

However, the court opted for a different remedy. Recognising the complications arising from a decision to unseat an MP – this could have cast doubt on all laws approved since the election – Madame Justice Padovani Grima awarded the PN two additional seats. She described this as the “least noxious and disruptive” remedy and one that had been proposed by constitutional lawyer and MEP Therese Comodini Cachia, who represented the PN, in her final arguments.

But should Madame Justice Padovani Grima have stuck to logic without taking into consideration other implications and unseated an MP, who was elected on the basis of a flagrant error, or was she right to adopt a practical approach?

Former European Court of Human Rights judge Giovanni Bonello acknowledges that adopting “a strict legal” approach would have entailed the unseating of MPs, who obtained their seats solely through the negligence or incompetence of the Electoral Commission.

But adopting such an approach would have been seeing just part of the picture, he adds. “This was a human rights case. The one and only agenda the judge had was to give a remedy to an alleged breach of human rights, and to reinstate the victims in the enjoyment of the rights they had been cheated of.”

Dr Bonello says the Constitution so abhors the violation of human rights that it has given the court the most extraordinary powers to establish, at its own discretion, whatever remedy it can think of that will right a wrong. He argues there are no limits to the court’s power – as long as the remedy does not go counter to the Constitution or to the law.

However, this enormous discretion comes with tremendous responsibilities, he adds.

“The judge may exercise discretion in a rigidly legal manner, or may exercise this by calibrating strict legality with the expediency of the community... In this case the court chose to balance the redress for a human rights violation, with serious considerations of public expediency.”

Dr Bonello said the court fulfilled its duty to redress the human rights breach. “It did not right all the evils of the world. But in a human rights law-suit, that is not the function of the judge.” And one of the ‘evils’ of this case was the Electoral Commission’s failure to act earlier when the mistake became apparent.

For columnist Martin Scicluna, the legalities and electoral number crunching at the heart of this case are a moot point even because the judgment may still be appealed.

But what stands out is the “extraordinary error” by the Electoral Commissioner, he says.

“Whatever the outcome of the legal wrangling, I would have thought the (electoral) commissioner should consider his position. Public confidence in this post is vital and it appears on the face of it to have been shaken.”

It is a sentiment shared by historian Henry Frendo, who describes the remedy awarded by the court as “a compromise solution” that keeps practicality in mind. Prof. Frendo believes the Electoral Commission should be held accountable.

“In a democracy the will of the people is sovereign and must not be flaunted with impunity... I hope lessons are learnt for the future so that mistakes flagged during the counting process are corrected immediately and not two years later.”

During the course of the court case, the Electoral Commission admitted there had been mistakes in the electoral process. This raises questions of a political and moral nature about any appeal the government or the Electoral Commission may decide to file.

Prof. Frendo believes the commission’s admission of a mistake must not be ignored. “I would have thought the government would be better advised not to appeal because at face value it would seem the government is contesting the basic fact that a mistake was committed.”

But historian Dominic Fenech does not agree with this line of reasoning, insisting there is nothing moral or immoral if the government chooses to appeal.

Focusing on the remedy awarded by the court, Prof. Fenech argues that proportionally, a government majority of nine seems appropriate.

“If you take the average quota as being roughly 4,000 votes, then the majority of about 36,000 votes should translate into nine seats exactly. If the parliamentary majority were reduced to seven seats then the PN would be disproportionately represented.”

The court’s remedy to award the PN two extra seats will see Parliament expand to 71 seats. In this new scenario the Labour Party’s 39 seats will correctly represent its share of the vote but with 32 seats the PN will be over represented.

This will reverse the existing scenario that sees the PL over represented in a 69-seat Parliament.

While mathematical considerations (see panel on opposite page) may come into play when determining the final composition of Parliament, one fact remains undisputed: 50 misplaced votes and two years later the electoral system still causes headaches and heartaches.

The scenarios

No mistake: This is the likeliness of how many seats the parties would have ended up with in Parliament had there been no mistake when sorting Claudette Buttigieg’s votes. In this scenario Labour’s share of seats would overstate its share of the vote by a mere 0.3 per cent while the PN would command a share of seats that overstates its voter share by 1.6 per cent.

Current: This is the scenario currently in place. The share of seats inverts the result of the first scenario, with Labour enjoying an overstatement of 1.7 per cent.

Court: The constitutional court’s ruling to award the PN two extra seats will result in Labour’s share of seats reflecting almost to perfection its share of the popular vote but overstates the PN’s share by almost two per cent.

Actual: This is what would have emerged as a result of the proportional calculation at law had there been no mistake. However, the law also says there has to be an odd number of MPs, which means one party would have to have an additional seat. The share of seats in this scenario reduces the level of overstatement for both parties.

Why does a percentage of seats always overstate the party’s share of the vote?

Although our system with its complex mathematical formula tries to ensure proportionality between the votes a party obtains on the first count (the election result) and the number of seats in Parliament, strict proportionality will remain elusive for two reasons.

Reason 1: the formula ignores the fact that the two parties in Parliament do not constitute 100 per cent of votes cast since at least two per cent of the electorate voted for Alternattiva Demokratika and independents. In this way the voting share of the other parties not represented in Parliament is mathematically distributed on the two major parties thus overstating their share of parliamentary seats.

Reason 2: The law dictates that Parliament has to have an odd number of seats, which means that if the formula calculating proportionality delivers an even result, one seat would have to be awarded to either of the parties, which would skew strict proportionality.

kurt.sansone@timesofmalta.com