A court has ruled that the Nationalist Party should have two more seats in Parliament, which would reduce the nine-seat gap to seven. The two new MPs have to be elected within a month.
The government however has given notice of appeal, saying in a statement issued via the DOI that it did not agree with the ruling.
Prime Minister Joseph Muscat later told journalists that while he respected the court's decision, the government does not agree with it and will be appealing.
The Labour Party said it will appeal too, saying that the will of the majority should be respected.
Madam Justice Lorraine Schembri Orland ruled that the Electoral Commission should repair the mistakes that were committed during the counting process.
The court declared that shortcomings in the electoral process were in breach of Maltese laws as well as the European Convention.
The shortcomings meant that Claudette Buttigieg was not elected. These had given an incorrect result and parliamentary representation was not proportional to the wishes of the electorate.
The difference between the number of government and opposition MPs is incorrect.
It ordered the Electoral Commission to correct the mistake – the governernent advantage of nine seats has to go down to seven seats. The commission was also ordered to declare the two PN candidates who were next in line as elected MPs. This has to be done within a month.
It also recommended to the Electoral Commission to set up a procedure addressing similar situation to avoid parties having to seek court redress.
The court declared that Claudette Buttigieg was denied her right to be elected.
In a first reaction, Opposition Leader Simon Busuttil said that justice has prevailed after three years.
The Labour Party had a different reaction, with lawyer Dr Toni Abela saying that the ruling is a dangeorus decision as it means eveyine can challenge an election result.
The Constitution has been reduced to nothing, he said. "We are throwing the coutry ninto uncertainty and we have to see whether there are grounds for appeal. Today it was declared that the 2013 election was not free," Dr Abela added, noting that it was organised under a different administration. "Nonetheless, I wish the new MPs well."
He said that the ruling has changed the face of the Constitution more than the amendments made after the 1981 election, which guaranteed that the party obtaining the highest number of votes beyond 50 per cent would be entitled to govern.
A victory for democracy - PN
PN Secretary General Rosette Thake said the Nationalist Party had been proved right by this judgement.
“Naturally this is a victory for democracy,” she said, noting that the Electoral Commission had been ordered to take the necessary steps to ensure that such mistakes would not be repeated.
Asked what type of changes would have to take place to avoid similar mistakes, PN lawyer Paul Borg Olivier these would not necessarily have to be amendments to the electoral law. “We believe that changes to the regulations of the Electoral Commission would be more appropriate.”
Dr Borg Olivier confirmed that Edwin Vassallo would be one of the new MPs while the other would be the next person in line, as determined by the Electoral Commission.
On Dr Toni Abela’s remarks, Dr Borg Olivier said these were the PL lawyer’s personal opinions. “We have not shredded the constitution. On the other hand we have strengthened human rights. This case was a about a breach of human rights, about the lack of a free and fair election and, for a second time, the courts have ruled in our favour.”
The PN has argued that it won the majority of votes on the 8th and 13th districts, but not the majority of seats. The issue revolves around a packet of 50 votes in the 8th district belonging to Claudette 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.
The PN has argued that the electoral commission should have restarted all counts to correct the mistake. This was in line with the English wording of the law, which differs from the Maltese version. The party says the commission had opted for this model when a mistake was made in the 1996 local council elections.
But the Labour Party, represented by lawyers Toni Abela and Paul Lia, has insisted that, in cases like this one, redress had to be sought in the Constitutional Court within three days. It insists that it is not up to the courts to decide on such matters. It also says that these mistakes did not alter the overall result – the people’s wish on which party should govern the country or the proportional representation of parliament.
The vote counting saga has been dragging on for close to three years now. The First Hall of the Civil Court, in its constitutional jurisdiction, had awarded the PN two extra seats. But that decision was appealed by the PL and annulled by a constitutional court, which found that the PL had not been represented in the first case. The court had ordered the case to start afresh.
In the meantime, the PL, in another attempt to delay the proceedings, filed another constitutional application, insisting that the First Hall did not have jurisdiction to hear the case. Labour had lost the case.
The PL had requested that the case before Madame Justice Schembri Orland be postponed until after a decision on its own case was handed down. That request was rejected.