In a statement issued this evening, the Electoral Commission said that the addresses of the three witnesses were provided correct to Dr Toni Abela on 13 January.
The court case filed by the Nationalist Party against the PL and the electoral commission over two seats it says it lost because of counting mistakes encountered yet another bump this afternoon after PL lawyer Toni Abela requested the court to stop hearing the case until another constitutional case is decided.
Instead of going to submissions, the court now has to issue a decree on the PL’s request.
Today’s sitting had already encountered a delay when two of four witnesses summoned by the Labour Party failed to show up. The court heard how the Electoral Commission had provided the wrong address for one of the officials while the second could not be found.
Madame Justice Lorraine Schembri Orland, who is presiding over the case, pointed out that the PL’s defence team had promised it would exhaust all of its witnesses by today. “This court has been waiting for you to present all your witnesses since November.” Dr Abela insisted that he had followed the normal procedure and could not do the impossible but the Judge insisted that he had had all the means necessary to contact the two officials.
Dr Paul Borg Olivier, appearing for the PN, asked the court for a suspension, giving time for the witnesses to be contacted and summoned for today’s sitting. Dr Abela insisted he could not be present after 2pm since he had an important medical appointment. The court upheld the request.
The sitting resumed at 1pm but only one of the witnesses showed up. It was established that the summons sheet for Louis Fsadni –a senior manager at the counting hall - was sent to an address in San Gwann instead of St Julians.
The second official, Anthony Gellel, could not be reached. Dr Abela asked the court to grant him another sitting for Mr Gellel to testify but the court insisted that the PL had had all the time to summon its witnesses and could not accede to the request.
Dr Abela protested, saying that the case had only started seven months ago, but the Judge said seven months was long by her standards. Witnesses started being heard in November and the PL was given ample time to present its own. She also pointed out that the court had already been suspended for one and a half hours, giving him time to call the missing witnesses.
Dr Paul Borg Olivier, appearing for the PN, said this was just another delaying tactic by the Labour Party and asked the court to continue hearing the case in an expedited manner.
The PL, however, played another card and filed a request for the court to suspend the proceedings until after another separate but related case is concluded. The PL is contesting, in another constitutional court, the First Hall’s jurisdiction over the case. In other words it is saying that the court presided by Madame Justice Schembri Orland does not have jurisdiction over the issue.
Dr Borg Olivier argued that the two cases were separate and the court should not wait for the other case to be concluded. Madame Justice Schembri Orland said she would announce her decision on whether to stop hearing the case pending the outcome of the other proceedings on Tuesday morning.
At one point both there were angry exchanges from both sides and the sitting became lost in legal technicalities. At around 2.10pm the Judge asked Dr Abela; “Did you not say earlier you had an appointment at 2pm?”
In the meantime, the court heard how the Electoral Commission had been alerted to the fact that 50 votes belonging to Claudette Buttigieg had somehow ended up in Michael Asciak’s pile. A PN sub-delegate said counting was temporarily suspended but the Electoral Commission ultimately decided to resume the process.
Electoral Commission official Vanni Ganado said the text in the Maltese and English versions of the electoral law differed. Acting on the advice of Professor Ian Refalo, the commission decided to follow the Maltese version, which said that the process had to continue and that the injured party could seek redress in the courts.
Replying to questions by Dr Borg Olivier, Mr Ganado said there was one case in the past – in the 1993 Local Council elections – when the Zebbug count had to start from scratch because of a mistake.
In this case, the electoral commission had decided to press on with the counting. “We acknowledged that the votes were Claudette’s but the process could not be stopped.”
Louis Fsadni said he was a senior manager at the counting hall when the mistake in the Gozo district vote counting occurred. He said Giovanna Debono had ten votes more than she should have had in her pile after she had reached the quota. This was probably a mistake by a counting agent and the votes should have belonged to Pawlu Buttigieg. Mr Fsadni said mistakes did happen but the Electoral Commission’s legal advice was to never go back to previous counts. He confirmed that this was the case in the 93’ Local Councils elections but said it had never happened in a general election.
The vote counting saga has been dragging on for close to three years now. The issue revolves around a packet of 50 votes in the 8th district belonging to Mrs Buttigieg, which was erroneously transferred to PN candidate Michael Asciak. Dr Asciak was subsequently eliminated which led to now Finance Minister Edward Scicluna being elected. In addition to this, Parliamentary Secretary Justyne Caruana was elected after 10 votes belonging to PN candidate Frederick Azzopardi in the 13th district went missing.
A court had initially granted the PN two extra seats but the decision was annulled by the Constitutional Court, which accepted the PL’s argument that it was not represented in the first case. As a result of this, the case was then sent back to the First Hall. The PL then filed another case, insisting that the First Hall did not have jurisdiction to hear the case.