The Malta Independent 17 August 2019, Saturday

A timely publication analysing the electoral law: Part I

Tuesday, 23 April 2019, 13:22 Last update: about 5 months ago

Prof Kevin Aquilina

Dr Austin Bencini, former Deputy Dean and Head of Department of Public Law of the Faculty of Laws at the University of Malta, and a leading constitutional jurist, has, over the last few years, been actively engaged in conducting research in the realm of Maltese constitutional electoral law covering a span of around one hundred years of general elections in Malta. The product of this arduous travail has now been documented in the book Malta's Hybrid Electoral System, A Constitutional Review. This superlative study of Austin Bencini on the Maltese constitutional electoral system is welcomed by all constitutionalists and other academics studying law, history, government, politics and international relations. It constitutes a very valid contribution which fills a deep and wide fissure in Maltese Law. It is indeed the first monograph which focuses primarily on the electoral mechanism used by the Maltese to elect their own legislative assembly and which delves in great depth into the workings of both proportional representation through the single transferable vote and the three corrective electoral mechanisms.

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There are, of course, other works which have referred to the way the people express their vote to elect their leaders in the House of Representatives but this monograph is unique in the fact that it provides a comprehensive narrative of Maltese electoral law when it analyses the electoral system as it has evolved over time, as it has been applied throughout nearly a century of electioneering, identifies the principal deficiencies ingrained in the electoral system, compares general elections to the electoral systems used for local council elections and the European Union Parliament, as well as critically reviews the recent decided court cases following the 2013 general election where the Civil Court, First Hall, Constitutional Competence, and, on appeal, the Constitutional Court have been called upon to determine pressing electoral issues. Other authors have tended to discuss general elections within a larger constitutional, political, historical or governance framework. But this is not the task that Austin Bencini has undertaken.

The originality of this book lies, therefore, in that the centre stage is this time not taken up, and absorbed by, the dramatis personae - the politicians - who have contributed to Malta's governance and led the country during the last one hundred years or so, as we are accustomed to read in the very valid history, government, politics and international relations literature, but the electoral system itself. It is indeed the first treatise written on Maltese constitutional electoral law which analysis not one particular election or one specific period of time, or one unique electoral system, but the whole gamut of Maltese constitutional electoral law, straight from its inception to date. This is indeed the context within which this work had to be placed, appraised and commended in the literature review on the subject.

This seminal monograph explains the workings of the proportional representation constitutional electoral system through the method of the single transferable vote in a timely publication intended to celebrate the forthcoming one hundredth anniversary of the system in Malta. Introduced in 1921, despite the scepticism of the Maltese political leaders of the time, this electoral system is still alive and kicking, vibrant and has also flourished over time having been extended to local council elections, elections of the European Parliament, and to other spheres. Since independence, it has provided legitimacy and self-determination to our democratic institutions operating as a quintessential imprint of responsible government and a representative legislature. Concomitant principles to the electoral system which have developed and are referred to by Austin Bencini are those of universal suffrage (one vote for all voters), the abolition of plural voting, and the extension of the right to vote to women.

Bencini correctly distinguishes representative democracy from direct democracy arguing that to give better effect to the former the British had, in the 1921 first self-government Constitution imposed upon the Maltese an electoral system which had not found favour with the Maltese National Assembly, nor in the United Kingdom for that matter, even to date. Indeed, the idea behind proportional representation is to ensure that smaller political parties obtain representation in the legislative organ of the state. Yet since independence the proportional representation system has clearly managed to defeat its self-proclaimed mission: to achieve representation in the House of Representatives for all minority parties. On the contrary, a review of all elections held under this system points in the direction that it has succeeded to make the obverse come true.

It first produced a bi-polar legislature and then a bi-party House of Representatives as we know it today. It has managed, as evidenced during the last 97 years, to nip in the bud all small political parties such as the Maltese Democratic Party, the Communist Party of Malta, the Constitutional Party, the Progressive Constitutional Party, the Malta Workers Party, the Christian Workers Party, the Gozo Party, the Jones Party, the Democratic Action Party, the Democratic Nationalist Party, the National Action, and so on and so forth ... a whole litany of political parties which were created, survived for a couple of years or decades to subsequently end up being condemned  to oblivion.

It also managed to sound the death-knell of political parties hailing from Gozo - the Gozo Party and the Jones Party. Up till now - and its days might be counted - only the Green party Alternattiva Demokratika has managed to survive almost 30 years in existence, though one sometimes doubts whether it is a misnomer to call it a political party in the real sense of the term or whether it is nothing more and nothing less than just an environmental lobby called a political party which has never made it, on its own steam, to the House of Representatives. For in a parliamentary democracy, political parties have only one principal aim - the conquest of power to implement their electoral pledges and not to operate extra-parliamentary.

Undoubtedly, the electoral system is one factor, coupled with lack of popular support, which has contributed to Alternattiva's continuous absence from the House of Representatives. This is not the fate, nonetheless, meted out to the Democratic Party. The latter - thanks to a pre-electoral coalition with the Nationalist Party - managed to obtain two seats in the House of Representatives in the 2017 general election right from the very first time it contested the general elections. This is quite an electoral feat when compared to Alternattiva Demokratika's dismal performance over the last 25 years or so. Whether this is an isolated phenomenon or not still has to be seen and established during the next general election. The fact however remains that the proportional representation system through the single transferable vote also contributed to annihilate independent candidates' dreams of joining the House of Representatives due to their lack of forming part of an established political grouping. Nor has it brought about a coalition government following the first general election after independence. On the contrary, it worked out, post-Independence, by always producing stable governments whether enjoying an absolute majority or a relative majority in the House of Representatives. The prediction by opponents to PRSTV in relation to what was, in 1921, a novel electoral system simply did not materialise and vanished into thin air.

 

Malta's Hybrid Electoral System, A Constitutional Review

Austin Bencini

Kite Group, 2019

 www.kitegroup.com.mt

 

Prof Kevin Aquilina is the Dean of the Faculty of Law at the University of Malta


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