The constitutional case filed by ADPD for parliamentary representation could see Malta’s new gender corrective mechanism fall flat: but this depends heavily on whether ADPD win the case, and, if they do, whether they win it before the casual elections.

ADPD last week filed a case with the constitutional court arguing that their 4,747 first count votes was more than the national quota of votes and should therefore transfer into them being granted a seat in Parliament.

If ADPD win their case and win a seat it would be the first time that a political party other than the PN and the PL is elected to Parliament under its own steam since 1966.  The PD won two seats in the 2017 general election, but that was only after the party’s candidates contested on the PN’s ballot sheet.

It is nowhere near a given that ADPD will win its case, and legal experts spoken to by The Malta Independent were unwilling to speculate on the third party’s chances, but what is certain is that if the party does win the case, and wins it before the end of next week, then it could have significant consequences for how the next Parliament is made up.

The consequences largely centre around the gender corrective mechanism which was made law last year and which is set to see 12 women – 6 from each of the major parties – elected into Parliament to make up for a shortfall of females elected.

The problem in this scenario, however, is that the gender corrective mechanism only comes into force if two parties are elected into Parliament.  If a third party is elected, then the mechanism automatically becomes redundant and is not used.

This is a result of how the law which introduced the mechanism was written.  The PN had made an attempt to amend the law so that it would still be implemented if a third party was to be elected, but the government had rejected the amendments, leaving both parties to vote in favour of the law as initially proposed.

 The gender corrective mechanism only comes into force after the casual election process is complete.  The casual elections this year will be held on Thursday and Friday.

It is thought to be unlikely that the case will be heard and decided upon by then, with ADPD so far only knowing that their case will be heard by Judge Ian Spiteri Bailey and, up until Friday, not having any indication of when the first sitting will be.

ADPD’s outgoing leader Carmel Cacopardo told The Malta Independent that constitutional cases were generally urgent in nature, and hoped that the case will not take too long to be heard and decided upon.

He also did not exclude that the party would file an injunction in court in order to stop the gender corrective mechanism from being used until their case has been decided, although he admitted that the prospect hadn’t yet been discussed.

A question asked by many following ADPD filing their case and wondering what would happen to those elected through the gender corrective mechanism if the third party was to be granted a parliamentary seat later in the legislature.

In this regard, there are little precedents to seek.

However a constitutional case which dragged on for three years from 2013 to 2016 could give an indication as to what may happen to those who were elected through the mechanism if ADPD were to win a seat. In that case, the PN had argued that there had been vote-counting mistakes during the 2013 general election. 

The party contended that a pile of 50 first preference votes which were given to Claudette Buttigieg were mistakenly given to another candidate, which had ultimately led to a PL candidate being elected in her stead.  The same argument was made in another district where Frederick Azzopardi missed out on a seat by 9 votes, but that when the transfer of votes from another candidate were made, there were 10 ballot sheets missing and not accounted for.

In the end, the Constitutional Court – after three years of the PN fighting the case – ruled in favour of the PN and, rather than depriving the PL of the two seats, granted the PN two additional seats.

This case can be used as a precedent to show that even if ADPD does win its case, it would not result in the 12 women elected through the mechanism losing their seats, but rather it would result in ADPD just being granted a seat, and therefore Parliament being then made up of 80 MPs.