A court challenge to a gender balancing mechanism for parliament has been given the legal green light to move forward.

An appeals court ruled on Monday that Arnold Cassola, the independent candidate who filed the legal challenge, has a juridical interest in the case and can therefore challenge it. 

The gender balancing mechanism was passed into law during the past legislature and is due to kick into action during this upcoming general election.

It will see the number of MPs increase if one gender gets less than 40 per cent of the available seats, adding up to a maximum of six seats for each side of the House. But, crucially, the mechanism will only kick in if two parties are elected to parliament.

Cassola, who is running on the 10th and 11th districts, has argued that is discriminatory as it means women must run as a Labour or Nationalist candidate to be in with a chance of benefiting from the mechanism. 

He has said potential candidates who had considered teaming up with him declined to do so because of that and presented testimony by Claire Azzopardi Lane, an academic, to that effect. 

The mechanism, he has also argued, does not respect voters’ choices, as voters who opt for a woman candidate who is running for a third party have their choice completely ignored by the mechanism. 

Cassola filed a constitutional challenge to the mechanism last May. 

His legal bid almost ended before it could even begin, however, when a court in January upheld a preliminary plea filed by State Advocate Chris Soler that argued that Cassola lacked juridical interest to challenge the law. 

Cassola however appealed that decision, and on Monday he was vindicated. 

His appeal was based on two grounds: that the constitution allowed a breach of rights action even in cases of potential breaches, not just actual ones; and that the court had not correctly assessed his “victim status” in terms of the European Convention of Human Rights. 

The Constitution Court presided by Chief Justice Mark Chetcuti and Mr Justices Giannino Caruana Demajo and Anthony Ellul concluded that Cassola had a right to challenge the mechanism. 

It took note of Azzopardi Lane’s testimony and said it showed that the mechanism had “a direct, actual and personal impact on the appellant’s ability to associate with others in contesting the general elections.”

The court noted that ECHR case law also allowed applicants to file action if they “risk being directly affected by the legislation”. 

In this case, the issue could affect the outcome of a general election and it was therefore important, to ensure stability within the country and the certainty of electoral results, to flag and determine the issue before the mechanism was actually applied. 

Having said that, the court noted that it was impossible for the matter to be decided before this month’s general election, as just one of three preliminary pleas have been determined and neither party has put forward their evidence at this stage, it noted. 

With Cassola having now won the right to object to the mechanism, the case will be sent back to First Court to proceed on its merits. 

Cassola was represented by lawyer Claire Bonello. State Advocate Chris Soler was the respondent in the case.


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