The right to free elections

This right, protected by Article 3 of the first protocol, is the last substantive right we shall be considering before commencing to write articles on human rights issues in general, without rigidly adhering to the legal provisions of the European Convention on Human Rights (ECHR) and the way they are reflected by our Constitutional provisions in Chapter IV.

Whereas this right is generally taken for granted in certain democracies, it is becoming increasingly more important. No mention should be made about its relevance to the domestic context this year.

If 2003 will be memorable for Malta in this respect, it will surely be for the three voting opportunities available to the Maltese electorate in the upcoming months.

Article 3 of the first protocol states:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

It is thus noticeable at the outset that a link exists between free expression and free elections. Additionally, a presupposition of a democracy is the existence of a representative legislature, elected at reasonable intervals.

This was expressly held by the European Commission of Human Rights in the report of the 'Greek' case way back in 1969. It goes further than making free elections a requisite. It requires that the exercise of power be subject to a freely elected legislature.

To an extent, this right may be considered as more important than the rest, since the other rights in the ECHR and in our Constitution emanate directly from laws promulgated by a legislature responsible to the people.

Free elections, in every conceivable way, are thus a condition for the effective political democracy referred to in the ECHR's Preamble and of the concept of a democratic society which permeates through the ECHR itself. This was reiterated in Matthews vs UK [1999] and in The United Communist Party of Turkey vs Turkey [1998].

The suspension of political parties is contrary to Article 3, as has been held in the above-mentioned 'Greek' case, since free elections require a genuine choice. There is no violation however of the ECHR if political parties with totalitarian aims are prohibited.

The wording of Article 3 only encompasses elections to the legislature. It does not expressly speak of referenda. An interesting case which may have a bearing on the politico-legal scenario of a small state like Malta on the brink of EU membership is the above-mentioned Matthews case, in which the status of the European Parliament and the application of Article 3 to elections arose.

The applicant was a British citizen resident in Gibraltar, which is a dependent territory of the UK with its own legislature. The EC Treaty applies to Gibraltar although the operation of parts of the EC Treaty is excluded in relation to Gibraltar under the terms of the Treaty of Accession.

Elections to the European Parliament are governed by the Act Concerning the Election of the Representatives of the European Parliament by Universal Suffrage of September 20, 1976. The Act provided for elections to take place only in the territory of the UK but not in Gibraltar.

The European Court of Human Rights (the Court) rejected the argument of the UK government that the European Parliament should be excluded from the ambit of elections within the scope of Article 3 on the grounds that it is a supranational rather than a national representative organ.

The UK government argued that it lacked the attributes of a legislature, which it defined as the power to initiate and adopt legislation. This is because the European Parliament's most extensive legislative functions arise under the co-decision procedure set out in Article 251 (ex 189 b) of the EC Treaty, under which the European Parliament can block the progress of legislative measures proposed by the European Commission and supported by the European Council.

After analysing the powers of the European Parliament and their impact on Gibraltar, the Court concluded that the European Parliament constitutes part of the legislature of Gibraltar for the purposes of Article 3.

Although Article 3, in contrast to Article 21 (3) of the Universal Declaration of Human Rights, does not refer expressly to universal suffrage, the Court held that the Article implies recognition of universal suffrage in the 1988 case Mathieu-Mohin and Clerfayt vs Belgium.

On the other hand it does not, in absolute terms, provide that everyone has the right to vote. If a person complains that he is disqualified from voting, the Court's task is to consider whether such disqualification impinges on the free expression of the opinion of the people under Article 3.

It has been accepted by the Strasbourg authorities that certain categories of citizens may be excluded from voting, without the free expression of the opinion of the people being prejudiced. Convicted prisoners, for example, may be refused permission to vote.

Disqualifications must not be discriminatory however, since they may well constitute a violation not only of Article 3 of the protocol, but also of freedom from discrimination as protected by the ECHR's Article 14. It is thus illegal to prohibit, for example, women from voting.

The choice of the electoral system is also important, particularly in the light of the 1981 electoral controversy in Malta. Today, our laws dealing specifically with elections are Chapter 102 (the Electoral Polling Ordinance), Chapter 354 (the General Elections Act) and Chapter 237 (the Referenda Act).

The Court declared that Article 3 does not create any obligation to introduce and implement a specific system of elections, and that states enjoy a wide margin of appreciation in the choice of the voting system. The only requisite is that the voting system, whichever way it is applied and enforced, provides for the free expression of the opinion of the people in the choice of the legislature.

Considerations dealing with the right to vote fall under the discussion of this right. The Court has decided that the right to vote and the right to stand for elections may be subject to legitimate restrictions imposed by the state.

Depriving persons abroad of the right to vote in their country of origin is permissible according to the X vs UK [1979] case. In Dr Victor Scicluna vs Permanent Secretary to the Office of the Prime Minister 1999, for example, the applicant alleged that it was discriminatory to prohibit him from contesting the general elections, since other civil servants had been given the requisite permission, but both the First Hall of the Civil Court and the Constitutional Court rejected his claims since the discrimination had not been proved to the court's satisfaction.

Malta has experienced certain cases dealing with counts of votes, such as Nazzareno sive Reno Calleja vs Electoral Commissioner [1998]. In Dr Austin Gatt noe. vs Electoral Commissioner [1994], the Court of Appeal held that "il-principju direttiv ta' ligi li tirregola l-process elettorali fi stat demokratiku huwa l-valur tac-certezza".

The 1998 judgment Ansell Farrugia Migneco vs Electoral Commissioner analysed the procedure which should be adopted when a candidate challenges the Electoral Commissioners' functions.

The last referendum held in Malta in May 1964 was a vote in favour or against the Independence Constitution. The Yes vote was 40.4%, a relative majority, the No vote was 33.7%, invalid votes were 5.5% and 'boycotted' votes 20.3%.

This radical and important referendum was beset by the problems of the politico-religious scenario of the Sixties, and yet Malta 'gained' its independent status on a relative majority.

The small centre parties invited the electorate to boycott the referendum. What was the strictly legal position then, when the no vote was a third and the blank vote was another one-fifth? Will this scenario be repeated in the forthcoming referendum, especially if the Labour Party boycotts the referendum on EU membership.

This question was also raised in the 'Integration' referendum held in Malta in February 1956. Again the electorate was divided into the yes votes (44.2%), the no votes (13.2%), invalid votes (1.7%) and the boycotted votes (40.9%).

There was no absolute majority, and the British government respected the will of the people by declaring that the vote did not have a "clear and unmistakable" majority.

What would have been the legal repercussions if the British Government thought otherwise? Was there a case 'for' or 'against' specific ECHR articles had it already been incorporated by then?

Taken in the local context, will the political scenario be repeated in 2003? One can only hope that the previous referenda spanning the last 47 years of local political history would have taught the Maltese parties some lessons in avoiding political, if not legal, sophistry.