Constitutional amendment defeated

A bill to amend a clause in the Constitution dealing with the qualification of voters failed to make it through parliament yesterday when it did not achieve the required support of at least two-thirds of the members of the House.

When the final vote was taken in the evening sitting, the members of the opposition stayed away and only 32 government MPs who were present voted in favour, out of a total of 65 MPs. The three governemnt MPs who did not vote are abroad.

The bill would have extended the categories of people who would not lose the right to vote even if they were temporarily resident abroad for a longer period than normally allowed by the Constitution.

The Constitution lays down that one may not be registered as a voter unless resident in Malta for at least six months in the 18 months before publication of an electoral register. The only exceptions are civil servants and members of disciplined forces.

The opposition also voted against a bill to amend the General Elections Act. The bill was approved after a division with 32 government votes in favour and 19 against.

Opposition leader Alfred Sant had warned in the morning sitting that the opposition would vote against both bills because the government was showing no goodwill to introduce a mechanism to ensure that the constitutional requirement on the residence of voters was respected.

This, he said, became necessary after the requirement for people to fill in embarkation cards when they returned from abroad was lifted.

He said that because the integrity of the electoral process could not be guaranteed, there was no change in the opposition's stand against nominating anyone to serve on the Electoral Commission.

Prime Minister Eddie Fenech Adami had urged the opposition to reconsider and said the government was prepared to restrict the bills to matters on which both sides agreed.

The two bills were moved by Justice Minister Austin Gatt who had explained that as things stood, even the wives of civil servants serving abroad, such as ambassadors, lost their right to vote if they were not in Malta for at least six months in the 18-month period before publication of an electoral register.

The government believed there should not be any discrimination and anyone temporarily abroad should not lose the right to vote.

That included people who worked in the public service, others who were not civil servants but represented the government, people employed by government and private companies registered in Malta, those serving abroad in the interests of any voluntary, religious or charitable organisation established in Malta, and those undergoing medical treatment or studying abroad.

With overseas trade increasing, one could expect more Maltese to be temporarily working abroad for reasons such as marketing.

Furthermore, it was shameful that Malta currently denied the right to vote to people who chose, in a sense of solidarity, to do missionary work abroad for a year.

These amendments, Dr Gatt said, should also apply to the spouses of such people. A register would be created where such people would indicate that they were temporarily abroad.

The minister said that in talks, the opposition had said it agreed in principle with extending the right to vote to those working abroad, but it disagreed that this right should also apply to those serving abroad in the interest of religious or charitable organisations established in Malta. He simply could not understand this.

The government had been careful in the wording of this amendment, provided that it was not retroactive. Those who currently did not appear on the register would not suddenly appear.

How could one grant the right to vote to those who worked abroad, but not those who helped the lepers or the poor in the missions? Surely such people needed to be encouraged, not penalised?

The opposition also felt that workers abroad working for the government and private companies could only have the right to vote if they were registered for inland revenue purposes in Malta and paid their social security contributions here. Therefore, in the opposition's way of thinking, the right to vote was dependent on the obligation to pay tax and social security. This was an antiquated principle which had long been surpassed.

Turning to the General Elections Act, Dr Gatt said another fundamental difference between the two parties was over how people could be struck off the electoral register.

At present, a political party could apply before the revising officer for a person to be struck off the electoral register for particular reasons. Such persons had a right to contest the application and the parties had to prove their case. This was not always easy, such as in the case when one had to prove that the person concerned did not meet residence requirements.

The MLP initially had felt the embarkation cards system should be retained so that one could check if the residence requirements were observed. Then it realised that that system had been unpopular and it proposed a system based on checking airline tickets - so much for the right to privacy. When this proved impractical, the MLP proposed that it should be the Electoral Commission and the persons whose eligibility to vote was contested who should prove the right to vote. This meant that if somebody never received the summons to appear before the revising officer, such as because he would have moved or gone abroad, and never saw his name in lists published in the newspapers, he lost the right to vote.

Indeed, in 1993, a lawyer for the MLP had even convinced a magistrate that when he filed an application for people to be struck off and there was no evidence against the application, those people could be struck off the register. Because of this ignorance by the magistrature, some 200 people were struck off the electoral register.

Dr Gatt said the government had wished to move other amendments, such as the doing away with the need for voting documents, basing voting on ID cards. But that could not happen until a more secure ID cards system was introduced and it was decided whether responsibility for the cards should be transferred from the police to the Electoral Commission.

The minister said he could not understand how the Nationalist Party could be accused in the newspapers of trying to abuse the electoral system, when the Labour Party had wiped the floor in as far as the holding of elections was concerned.

It was the PN government which had introduced the transparent electoral process which existed now. Apart from what happened in 1981, where was Dr Sant when he (Dr Gatt) had machine guns pointing at him in the counting hall in 1981 and when Zejtun voters could not vote? Under the Labour government before 1986 the parties hardly had any right to information, polling stations were full of labourites and the Electoral Commission was formed of Labourites, with consultation with the then leader of the opposition being in name only.

Labour election manager Dr Michael Falzon was wrong to argue (in The Times) of "gerrymandering" in the 1996 elections because, he claimed, the PN was over-represented and the MLP deserved a parliamentary majority of three, not one. This was not true. The 7,633 vote majority which the MLP had won equated to a majority of one because the electoral quota was 4,019.

At the last election it was true that the MLP should have won a seat more, and the PN a seat less. But it was well known that the current electoral system did not produce strict proportionality. Since 1921, representation in the House had only been strictly proportional twice.

The PN had wanted to change the system to bring about proper proportionality and it was the MLP which rebuffed those efforts. The PN had proposed a national representation system based on the D'Hont system, where representation was calculated on the basis of the first count vote, not the last as at present. In order to ensure there was governability, without a single party with one seat holding sway, the PN also felt that there should be a five per cent national threshold, so that a political party would have a parliamentary presence of at least three when it achieved five per cent of first count votes nationally.

The PN also felt that when a party did not achieve that five per cent threshold, its votes would be transferred according to the voters' next preference. Did the MLP agree with this system? The PN was ready to hold talks about it at any time. The time had come for an act of courage. Was the MLP scared of a third political force? Surely a party which had the support of five per cent of the electorate deserved to be represented?

Dr Gatt said that contrary to what Dr Falzon had written, the amendments moved by the government did not open the way for persons who voted illegally to plead ignorance of the law. Indeed, what the bill said was that anybody who was ineligible to vote but voted anyway would himself have to prove his case if he pleaded ignorance of the law. Otherwise the onus of proof rested on the prosecution.

Concluding, Dr Gatt said the government's reasoning throughout was that no one should unjustifiably lose the right to vote. This right to vote was sacrosanct in a democracy.

Opposition leader Alfred Sant said the government was manifestly showing it had no good will to ensure that the constitutional requirement on the residence of voters was respected.

It was the government's duty to ensure that the state had the mechanism to ensure that the Constitution was observed.

Two measures currently hindered how one could verify whether a person was eligible to vote. The first was that with the removal of embarkation cards, there was currently no effective system to check for how long a person had been abroad. The MLP had not insisted on the retention of embarkation cards, but it had argued that a loophole had been created in the system of verifying whether a person was eligible to vote in terms of the constitutional residence requirements, and an alternative verification system was therefore needed.

The second problem was over dual citizenship. The MLP was not against dual citizenship, but one had to tackle the problem it created on compliance with the Constitution.

The way the government was acting, as if these problems did not exist, instilled lack of confidence in the electoral process.

This had nothing to do with privacy. Indeed, the government was in negotiations to purchase equipment to scan and record the particulars on the passports of those going abroad. Wouldn't that invade privacy too?

Dr Sant observed that like the Labour Party, four electoral commissioners, Vince Camilleri, Anna Mallia, Joe Buttigieg and Mr Cauchi had, within the commission, raised the problems which stemmed from the removal of embarkation cards and the issue of dual citizenship. They eventually decided they could not properly perform their duties until these problems were solved, and they therefore resigned.

The opposition had not proposed four new persons to serve as commissioners because the government was continuing to show a lack of willingness to address the lacunae that existed. To nominate four new commissioners would imply lack of confidence in the persons who had resigned, and the new commissioners would also not be able to guarantee the integrity of the electoral register. The opposition's position had not changed since.

Dr Sant said the bills under debate did not address the problem over how the constitutional requirements on the residence of voters would be respected. No new safeguards were being introduced.

Furthermore, the amendments to the General Elections Act were giving people who voted illegally a way out by pleading ignorance of the law, as Dr Falzon had rightly written.

With regard to the contestation of voters' eligibility before the revising officer, there was nothing wrong in the opposition's view that when a voter's eligibility was contested and the voter did not turn up to defend his eligibility before the revising officer, he should be struck off the electoral register. This was, after all, the same system used with regard to registration for work and social benefits.

If one had the right to vote, he should respect it enough to defend it. Under the current system, one could get away with abuse by simply not appearing before the revising officer.

The government was arguing that it should be the political parties which should prove their case for a person to be struck off the register. So did the government want a return to a system of street spies on the people? This was horrendous and would really be a throwback to times which had been surpassed.

The opposition would vote against both bills because of the government's manifest lack of good will to solve the existing problems.

The opposition was not against extending the category of people working abroad who could retain their right to vote, but in that case, such people had to show a certain commitment to the country, which was why the opposition had proposed that they should pay social security here.

The government, however, was using this as a screen to hide the way it was not doing anything to solve the problem over how one could check that voters' residence requirements were respected.

The people had a right to be sure that the Constitution was respected at all times.

The government, however, was scared of the coming elections and wanted to garner every vote it could.

Did the government want to amend such an important law as that on the elections without agreement? If it did, he would warn that what the current majority would do, the Labour majority after the next election would undo.

Labour MP Anglu Farrugia regretted that the bills did not reflect the points agreed by both parties in the talks they had held. The opposition agreed that the category of people who worked abroad but retained their right to vote should be widened. But in order to ensure the attachment of such persons with Malta, the opposition felt such people should be registered here for income tax purposes and pay their social security contributions here.

Dr Farrugia said the embarkation cards system could have been replaced by a new system to ensure that voters' residence requirements were respected. But the PN was only interested in organising its supporters abroad and ensuring they could vote.

Ineligible voters should not be allowed to get away with abuse for lack of evidence before the revising officer. It was unacceptable that a person could plead ignorance of the law to justify voting when he could not do so. This was contrary to every legal principle. The two parties had certainly not agreed on this.

Winding up, Prime Minister Eddie Fenech Adami said the way the law limited the category of people who could retain the right to vote while serving abroad was discriminatory and clearly needed to be broadened.

The government and the opposition had agreed on extending this category of people, but the opposition was against including Maltese doing voluntary work overseas.

The government was prepared to compromise by excluding these people, although it was against doing so and felt such people could claim discrimination before the constitutional court. At least other people would not continue to lose the right to vote too.

The government, however, disagreed with linking such people's right to vote with registration for tax purposes and the payment of national insurance here. This would create discrimination. There were people resident in Malta who did not pay tax even through they were duty bound to do so, and they still did not lose their right to vote.

Dr Fenech Adami said he could not see why the opposition had linked this to the issue of embarkation cards. The cards were an anachronistic system. He did not think this was the time to have passport details of people going abroad stored in a database.

The opposition had not given proper reasons as to why it would vote against the constitutional amendment.

Turning to dual citizenship, Dr Fenech Adami said people who lost their Maltese citizenship because of emigration were considered as never having lost it and therefore did not need to be registered. Was the leader of the opposition telling emigrants who held dual citizenship that they should register?

Dr Fenech Adami said all the amendments to the General Elections Act were as agreed between the parties except clause 30 that raised the penalties that may be imposed on people who voted illegally from Lm500 to Lm1,000 and/or a prison term of up to one year. This clause also said that such people could plead in court that they did not know they had lost their right to vote, in which case they had to prove their claim.

Dr Fenech Adami reiterated the invitation made to the opposition for talks on an electoral system which would produce proper proportionality in parliamentary representation. This system, he recalled, had already been explained by Prof. Buhagiar during the meetings of the "Gonzi Commission" and the government was willing to discuss it again with the opposition to do away with the possibility of anomalous results caused by gerrymandering of electoral boundaries.

Both bills were then given a second reading after a division, with 30 in favour and 24 against.

No member of the opposition participated in the committee debate on the bill to amend the Constitution even after Dr Gatt offered to withdraw the clause enabling people working abroad for voluntary organisations not to retain the right to vote. The opposition voted against the bill in committee.

During the committee debate on the General Elections Act, Dr Gatt withdrew the clauses that were linked to the proposed constitutional amendment and clause 30, on which there was no agreement with the opposition. He said that otherwise, all clauses were as agreed in talks with the opposition.

The members of the opposition also did not participate in the debate except to vote against.