Back to the Polls - The Law
by Dr Renè Darmanin - Associate
Yesterday, the Maltese Prime Minister announced that the next general election is to take place on the 26th of March 2022. Under Maltese law and in accordance with the Maltese Constitution, all members of the House of Representatives are to be elected upon the principle of proportional representation of the single transferable vote from the 13 districts of Malta, Gozo and Comino. From these 13 districts, 65 members of parliament are elected, each electoral district returning 5 members.
As it currently stands, Malta is one of the very few countries, which elects its legislatures through the single transferable vote. This method of voting was invented back in the 1800s and it is still perceived as one of the best ways to interpret the electorate's wishes for candidates and parties.
Under this voting mechanism, voters are asked to rank in numerical order as many candidates on the ballot sheet as they wish. Whilst doing so, voters may choose candidates from different political parties.
In order to win a parliamentary seat, a candidate must receive a specified quota of votes in a particular district. This quota varies from one election to another as it all depends on the number of valid votes.
During the counting stage, under this system, if a candidate manages to achieve enough first preference votes to meet the established quota, such candidate will be declared elected and the excess first preference votes received by the elected candidate are transferred to the candidate who was ranked second on the ballot sheet. Once these votes are transferred, a second count is performed so as to ascertain whether any other candidate managed to achieve the quota.
If on the other hand, no other candidate manages to attain the quota, the candidate with the fewest number of votes is eliminated and his votes are now transferred to the candidate who is next ranked on the ballot sheet. These process is repeated until all parliamentary seats are filled.
In conformity with the Maltese Constitution, elections shall be free of illegal and corrupt manoeuvres. If the Maltese Electoral Commission, which is also established under the Maltese Constitution, has reasonable ground to believe that illegal and/or corrupt practices connected with the election have been committed and such practices may affect the result of the election, then such Commission is duty and legally bound to suspend the election either in all electoral districts or in any one or more districts. If the Electoral Commission decides to suspend an election, the matter shall be referred to the Constitutional Court for its decision.
It is worth mentioning that not each and every person living on the Maltese islands at the time of a general election may be eligible to vote. Voters must be citizens of Malta who have attained the age of sixteen years and have been residing in Malta for a period of six months, either continuously or in aggregate, during the 18 months preceding his registration as a voter unless this was not possible due to any service abroad in the public service. One should be cognizant of the fact that no eligible voter may vote at the election of members of parliament in any other electoral district other than the district in which he is registered as a voter according to the electoral register. This register compiles in alphabetical order the name of each street and eligible voters are listed in alphabetical order of surnames under the name of the street where they are registered.
Contrastingly, all those who are interdicted, incapacitated or serving a sentence of imprisonment exceeding 12 months do not qualify as voters. Additionally, all those who are disqualified for registration due to a conviction of any offence in relation to the election of members of parliament, are barred from voting.
In the case of general elections, voting is by secret ballot. Such vote shall not be disclosed and no person is permitted to vote on behalf of any other eligible voter. An exception to this general rule applies when a voter is unable to mark his vote, due to illiteracy, blindness or any other physical cause; in such cases, the ballot paper may be marked on the voter's behalf and on his directions by an official who is specifically appointed to do so. All voters must record their vote secretly in the voting compartment. After marking the ballot paper, the paper is to be folded in such a way so as to show the official mark and then inserted in the ballot box in the presence of the appointed Assistant Commissioners.
Our Constitution dictates that the ballot paper shall be construed in such a way so as to allow illiterates to tell apart which candidates belong to one political party or the others. In practice, this is usually done by printing the logo of the political party represented by the candidate next to his name or by printing the name of that candidate in a colour which is usually associated with the political party he or she represents.
A ballot paper is pronounced as invalid if the figure “1” indicating a first preference for one candidate is not placed or if the figure “1” is placed against the name of more than one candidate. It may also be declared as invalid if the counting agents cannot determine with certainty which candidate attained the first preference vote. Moreover, if the ballot paper contains any mark or writing by which the voter may be identified, then such ballot paper shall be invalid.
One should also be aware of the fact that our law allows all registered and eligible voters who declare and confirm under oath that they will not be in Malta or that they will be hospitalised on election day, to cast their vote seven days before polling day.
After the expiration of the time fixed for voting, ballot boxes are sealed, removed and transferred to the counting hall under the surveillance of the assistant commissioners and party agents.
After the electoral results are out, if any question arises in connection with the election of a member of the House and/or the vacation of a parliamentary seat, this shall be referred to the Constitutional Court.
Dr Renè Darmanin is an Associate at PROLEGAL Advocates.
Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Renè Darmanin at email@example.com.