The Prime Minister has lost his command of a majority of seats in Parliament. He has continually to seek to consult and possibly negotiate with a former Nationalist member of Parliament to ensure his government can legislate each and every Bill, particularly money Bills.

… government has now become blatantly unrepresentative and undemocratic- Alex Sceberras Trigona

This is surely not what our Constitution intends when describing the Prime Minister as “commanding” a majority in the House.

Indeed, the real picture is one of an unstable minority government constantly in search of support for its very survival. A “hung” Parliament is not exactly one of the best illustrations of democracy that Malta can project to the rest of the world. And the fact that the government only has as many seats (34) as the opposition won (34) at the last election in 2008 conceals a greater democratic deficit.

The governing party has not only lost its majority of seats. It has also lost its wafer thin majority of votes. Jeffrey Pullicino Orlando has denied the government its constitutional legality by denying it a majority of seats in Parliament. He has also denied it its democratic legitimacy because it lost its relative majority of votes in Malta and Gozo.

But that is only one side of the picture. In 2008, the government was compensated for its relative majority of 1,500 votes by a donation of an extra four seats in Parliament, thus increasing the seats it won (31) to 35. This was correctly based then on Dom Mintoff’s 1987 “absolute majority” amendments and the derivative 1996 “relative majority” constitutional amendments. But what was correct then is not correct now. What was justified then is no longer justified today.

Now, in 2012, the government is hanging on to this donation to govern when the very basis for it has just been removed. Without a relative majority of votes those compensatory four extra seats are no longer due to the government. Retaining those extra four seats without any justification whatsoever is grossly unfair and manifestly unwarranted.

Malta’s government has now become blatantly unrepresentative and undemocratic.

The present government cannot justifiably rely any further for its survival on a worn-out donation of four extra MPs to govern. They are past their expiry date. The government too is well past its expiry date.

Malta now has an undemocratic government. It arrogantly defies the very first article of the Constitution which stipulates that “Malta is a democratic republic…”. Indeed, article 52 of the Constitution is illuminatingly entitled Composition Of The House Of Representatives in that it regulates Parliament’s democratic composition on a continuing basis, not only on day one but throughout the whole legislature.

The Constitution is not only that which is formally written in it but is made up substantially of the dynamic daily interchange of political, judicial, economic, media and social forces in Malta.

In the absence of the immediate resignation of the four MPs and/or the government, it is a moot point whether the Electoral Commission or the Constitutional Court or the people themselves, as the ultimate sovereign, should remedy this democratic deficit.

In the 1980s, the Nationalist Party did not bother to check whether it really had any right to contest the government’s right to govern before the Electoral Commission or before the Constitutional Court but immediately fomented people to protest ever more vehemently. Should the Labour Party, which now represents a majority of votes relative to what the PN represents, do the same today? Or should it rather just fight it out democratically in the forthcoming election?

Meanwhile, it may be interesting to see variants of the central argument above.

One legalistic argument is that of the proper moment in time determining majority rule. This narrow view would have the constitutional compensation of additional seats only operating on the first-count votes of all the parties. Labour could have forced this issue already in 2008.

In deciding which seat its MPs elected on two electoral districts would have to relinquish (for the by-election to proceed) Labour could have held back on the Sliema seat and allowed Harry Vassallo to get elected for a third party, Alternattiva Demokratika. Consequently, the government would have lost its relative majority of votes too but, more importantly, just before the publication of the final election results this would have denied the government any constitutional right of clinching its donation of four extra seats.

The fundamental article 52 constitutional requirement for the additional seats, namely, that only candidates of just two parties were elected to Parliament, would not have applied.

There are also those who argue that, for the sake of stability, the government should even have been donated an extra two seats immediately after Dr Pullicino Orlando’s resignation from the PN. This argument rests solidly, though only, on the strength of the overriding validity of the first-count votes at the last election.

Other arguments about an MP’s votes not being his own but his party’s are not quite tenable here.

Put more forcefully, had more than one Nationalist MP left their party together with Dr Pullicino Orlando, the government would again be governing without a relative majority of votes. Its initial compensation of four extra seats would no longer have been justified.

Would it be right and proper, for the sake of governmental stability, in a properly functioning democracy for the government to get an extra six seats if, say, five of its MPs had resigned and formed a Democratic Nationalist Party, for example? The validity of the first-count votes argument starts withering away here. MPs’ votes appear as their very own here and no longer their party’s.

Would it also be right and proper, for the sake of governmental stability, to give the government an extra seat if one Nationalist MP crossed the floor?

The first-count votes argument fails completely here. “Crossings” have occurred with no legal sanction whatever.

Other arguments about an MP’s votes not being his own but his party’s are stretched to the extreme and snap here. Whether political parties or the Constitution should regulate this, is quite another matter.

Historically the constitutional amendments regulating a mismatch between seats and votes have worked well on a number of occasions already since their introduction in 1987 and 1996. Nevertheless, the PN propaganda machine has been harping, day in day out, for over 30 years now, on the 1980s’ Labour government’s lack of legitimacy.

They never mention its constitutional legality though. In fact, they had never contested the Labour government’s constitutional right to govern between 1981-1987 before our Constitutional Court. Were it not for such a perversion not only of the Constitution but also of the two grand constitutional amendments on majority rule, this would have been a truly delicious case of “What goes round, comes around”.

These clashes of principle are all worthy of much further consideration and relevant solutions. We have examined the classic constitutional one between legality and legitimacy. But it has been shown that others deserve attention too, especially the proper moment in time to compensate a party having a minority of seats but a majority of votes and that compensation’s duration and termination.

Other issues too need to be resolved like governmental stability at the expense of democracy, minority government and no taxation without representation and whether an MP or his party owns his electoral votes and parliamentary vote throughout a whole legislature.

The PL has committed itself to hold a wide-ranging Constitutional Convention if elected. This issue of undue compensation is essentially the stuff that the Constitutional Convention should also be considering in depth.

Many are those who expect that Convention to launch the right proposals for appropriate constitutional amendments in this regard too.

Dr Sceberras Trigona is the Labour Party’s international secretary and a former Foreign Minister.

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