Constitutional Law

-Dr. A.Bencini-
 Lecture 1
One cannot have a solid independent state unless one has a constitution. The first document constitutes the
institutions of a state. Even the parliament only exists because the constitution orders it to. Basically, constitutional law
is the translation of a political idea into law.

Constitutional Law is the fundamental law, and is also the supreme law:

“…if any other law is inconsistent with this Constitution,

this Constitution shall prevail and the other law shall,
to the extent of its inconsistency, be void.”
[Article 6]

The constitution not only states what the three organs of the state are, but it also regulates them, depicts their
relationship with one another and their relation to the individual citizen (i.e. the rights of the human).

Malta is a sovereign, independent state with legal and international significance. Even though independent from
September 1964, Malta had its own constitution pre-1964, a rich constitution back when Malta formed part of a much
larger sovereignty (the United Kingdom). Our constitution and our constitutional law therefore had to reflect the colonial
era, the period when the supremacy lay in London, not Malta.

Today, although sovereign, Malta shares sovereignty with the European Union (as of May 2004).

The law has many sources;

 Written law
 Jurisprudential Law (created by the workings of the Court)
 Custom and Practice (repeated behaviour giving rise to legal rights and obligations)
 The European Union
 The Council of Europe (ex. Convention on Human Rights)
 Juridical negotia (simple day to day acts of civil, commercial life performed by citizens and businesses)
 Writings and opinions of jurists, authoritative opinions
 Lecture 2
To know the present Constitution of Malta, one has to first understand how it was created. This obviously cannot be
done without understanding the way it evolved from the British constitution to the Maltese post-21 st September 1964.
Indeed, the first thing one notices is a strong element of legal continuity between the pre-independence and the post-
independence constitutions.

We were a colony before 1964 and had a very lively constitutional history. More fundamentally, that history still lives
with us today. That is the richness of our legal system. The interaction that took place between the Roman civil law
tradition, the Napoleonic Code remains up till today the basis of our civil law, however, British public law was and is the
basis of our Public Law. Thus these two intellectual streams merged together to form the Maltese Law.

Pre-1964, Malta was a colony, and not just a colony of the British Empire. Our history is reflected into our legal system,
where one finds various interactions between Roman Civil Law traditions and the Napoleonic Code (forming the basis
of our civil law system). When it came to Public Law* however, the British legal system vis-à-vis its public law was and
is the basis of Malta’s Public Law system.

*[Public Law is the law which relates to the State in all its manifestations].

Thus one can see the mixing of the Continental stream of though with that of the British, forming Maltese Law.

A simple observation of society is that it is shaped and kept in shape by law. The Latin expression “Ubi Socieatas Ibi
Jus” depicts this perfectly, stating that where there is society there is law. Thus it stands to reason that law cannot exist
without society and society in turn, cannot exist without law.

Some elements a state requires to exist are obvious: a territory, a population as well as institutions to administer
govern the territory. Pre-1964, Malta had all of these elements, so why was it not a State? The answer is simple: it was
not sovereign.

There are fundamental differences between a “nation and a “state”. It goes without saying that it is of vital importance
that one does not mix the two. A nation is defined as:

“a community of persons not constituting a state but bound by common

descent, language, history, etc…”

Whereas the state is defined as a:

“sovereign political power or community”

Thus, Malta was indeed a nation prior to 1964, because the UK identified us as a state unit with its own culture. That
being said, the Maltese Nation was not a state on its own, due to the fact that the institutions present were not Maltese,
but rather British institutions residing in London. The simple fact that Maltese institutions were not Maltese at all made
all Maltese citizens British subjects, not British citizens. We had no sovereignty, no supremacy prior to 21 st September
1964.

As a colony of the British Empire, we had our own individual Constitution. The system dictated that whenever a new
constitution had been drafted and was set to replace the old constitution, the Colonial legal system took control as the
provisional constitutional until the new constitution was in place. The Colonial system (and thereby the Colonial Laws
Validity Act) was something that ultimately lay in London, not Malta and was hence something Malta could not
influence or change. It was this very fact that made us a colony and deprived Malta of true and complete sovereignty.
Constitutional Law is the law which defines the three organs of the state* and their relationship with each other.

*[the three organs of the state are the legislative, the executive and the judiciary]

In the Maltese Legal system, the Constitutional Court is considered to be the most important Court. It decides
Constitutional cases (hence when a constitutional right has been infringed, one makes reference to the Constitutional
Court) and by doing so interprets the Constitution. This was not the case before September of 1964, when the highest
and supreme form of authority was the British Court.

Post-independence Malta gained its sovereignty, but still had Queen Elizabeth II as its head-of-state since, although
independent from Britain, it was still under the Queen’s “powers” (more symbolic than political) since it was still part of
the English monarchy. With the ascension of the Republic of Malta on 13 th December 1974, the President of the
Republic became the head-of-state of Malta, substituting the Queen.

During the transition phase between the pre and post independent stages of Malta’s political life, one saw the ever
presence of the British judges in the Maltese courts. Despite being British judges, they interpreted Maltese exclusively.
The reasoning behind this was that since the British judges had extensive knowledge of British law, they could help
vastly in the assurance of legal continuity during the process change to independence. They thus helped to make the
transition “smoother”.

As of May 2004, Malta has joined the European Union, giving rise to various legal implications and consequences.
Being part of the European Union, we have automatically accepted all institutions making part of the European Union,
including the European Court of Justice, which to a certain point, has supranational powers over all member states.

Also, as of 1987, Malta signed the European Convention of Fundamental Human Rights and thus created another form
of higher courts, that of the European Human Rights Court. There has been an increase in the intergovernmental
relations across Europe which some say reduces a country’s sovereignty whilst others say it is but a cooperation
between sovereign states to achieve a common goal.
 Lecture 3
Constitutional Supremacy

The idea of a supreme Constitution originated from the American Constitution as well as Malta’s own constitutional
history.

The United States of America is a federal state, meaning that many (at the time 13) states are united as one under the
flag of a federation. A very important legal case (Marlbury v. Madison) once came into being questioning whether it is
the federal constitution which is supreme or whether the law of the state takes prejudice over that of the federation.

President Madison is considered the Father of the Constitution. He welcomed peace, but soon became alarmed at the
fragility of the Articles of Confederation and especially at the follies of state government. He was a strong advocate of a
new constitution, one that would overcome state follies. At the Constitutional Convention in Philadelphia in 1787,
Madison's draft of the Virginia Plan, and his revolutionary three-branch federal system, became the basis for the
American Constitution of today. Madison envisioned a strong federal government that would be the umpire that could
overrule the mistakes made by the states; later in life he came to admire the Supreme Court as it started filling that
role.

 The fact that we have a written fundamental constitution makes it supreme

 Theory of Constitutionalism:

Constitutionalism is the limitation of government by law. Constitutionalism also implies a balance between the power of
the government on the one hand, and the rights of individuals on the other.

Typically, a government can be considered constitutional if it possesses the following four limitations:

 The legislature can convene and can’t be dismissed by parties other than itself.
 Courts, once appointed, are independent of the legislative branch.
 The executive branch can't appoint ministers unilaterally without the approval of the legislative branch.
 Only the legislature can make laws, although a veto power might be delegated to an executive official.

 Colonial Laws validity act (1865), the British Parliament decided to try and define the relationship between
British Law and law enacted by British Colonial Parliaments (Colonial Law – valid and referring specifically to
the colonized citizens). British Parliament seated in London couldn’t pass laws for the needs of the whole
empire so it delegated a lot of its power to the British Executive to run a massive empire, enabling the British
Government/Executive to provide for the local needs of legislation.
 All the laws in the Constitution of Malta under British rules were passed through Orders in Council (research
{delegated legislature}).
 In Article 2 of Colonial Laws Validity act : “Any Colonial Law which is or shall be in any respect repugnant
(inconsistent) to the Provisions of any Act of Parliament extending to the Colony to which such Law may
relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in
the Colony the Force and Effect of SUCII Act, shall be read subject to such Act, Order, or Regulation, and
shall, to the Extent of such Repugnancy, but not otherwise, be and remain absolutely void and inoperative .”
This is very similar to article six of Malta’s Constitutional Law.

The formula of supremacy in our Constitution was therefore copied from this formula. Therefore, in order for Malta to
become independent, it had to misapply the conditions of this act.
 Lecture 4
Parliament holds legislative power thus it passes laws. For example, in education it gives power to the senate and the
council. This example is referred to as delegated legislation.

Constitutionalism
Government can and should be legally limited by a supreme legislation i.e. in our case the constitutional law.

Order in Council
Order in Council is a form of delegated legislation. The Maltese colonial constitutions were delegated by Order in
Council (adding and removing constitutions by the British government through this delegated legislation).

A colonial legislative body of which at lest half are elected by the British:
 The 1961 Court was more than representative since it created the Parliament which we inherited in 1964.
Prior to this date, it was the last colonial parliament. (Research legal continuity)
 Our independence took place as a consensual transfer of power. (Research Fundamental Human Rights
1961 vs. FHR 64)
 Chapter 4 of the FHR are restrictions to the state by virtue of the alienable human rights in alienable human
rights not granted by the state, but only recognized by it. These are therefore the states to protect.
 1961: British recognized that the colonies had certain rights to claim even against the British Authorities
themselves. Though this Act of Human Rights they paved Malta’s way to the independent constitution. This
is also referred to as the period of decolonization.
 We vote through the proportional representation system, through the single transferable vote (since 1921).
The latter, highly democratic system of voting. Malta was one of the first countries to adopt this system.
Lecture 5

What are the freedoms stated in the Constitution of 1961 and that of 1964? And what did the European Convention on
Fundamental Human Rights do in 1987 (act 14)? In WRTING

Legal continuity implies change – an important factor at the constitutional level when there are radical changes of
constitutional setups. People drafting constitutions have to keep such a factor in mind because their role is in effect to
change the foundations of the legal system, which most of the time are supreme.

The German constitution defines itself as the “basic law”. Our transition in sovereignty was done through legal
continuity.

The opposite of legal continuity is revolution- a revolution in a constitutional order brings about a break in legal (and
political) continuity. The independence brought about a political break, but legally one sees a strong element of
continuity.

The 1961 constitution was a prototype of the 1964 constitution: Malta was even referred to as a state, even though it
was not one in 1961. We were not a state because the British Empire gave a balancing power to the governor of Malta,
especially over the police. The 1961 constitution is not the totality of the constitution (Government gazette no.11.344
24th October 1961) because we were still under the rule of the British, it was a colonial constitution. The imperial power
in fact, even reserved the right to revoke the constitution.

The true proof that the 1961 was a colonial constitution was indeed the fact that it could be easily revoked by an
external force. The independence constitution brought about the Constitutional Court, which Malta lacked under British
jurisdiction.

The 1961 constitution was thus the “prototype” to the 1964 constitution, a lot of the contents being to a large extent our
1964 constitution.

How did they maintain legal continuity in the transition between the 1961 and 1964 constitutions? Constitutionally,
since there was legal continuity, legal independence had to be granted by the British Parliament. Sine Parliament is
sovereign in Britain; legal continuity had to be maintained by a handing over by the Parliament itself. By examining
these legal documents one finds that the Colonial structure was dismantled by the British Parliament lock by block,
done by the Malta Independence Act 1964, an act of the British Parliament, followed subsequently by the Malta
Independence Order (an order in Council).

The carrying out of the legal “model” was left in the hands of the British government. In fact, first we had the
independence act, then the order. Thus the parliament issued the act, enabling the Malta Independence Order to give
Malta sovereignty.

Constitutionally, to ensure legal continuity, it had to be the British parliament through an act of parliament to determine
that Malta will no longer remain a colony and become an independent, sovereign state. The carrying out of this plan
was left in the hands of the British government. The legal instrument used was the “delegated legislation”, or an “order
of Council”.

The principle block needing disassembly to grant Maltese independence was the Colonial Laws Validity Act. As from a
(the Appointed Day) certain date (decided by the British Government) Malta was to become an independent state. The
Parliament was to decide the conditions of the Independence, the government (referred to as “Her Majesty”) was to
decide the date. The executive may legislate only by making direct reference to a law which grants them that power.

Lecture 6

The 1964 constitution documents itself was there included in the Malta Independence Order. The Act established the
day, established the fact that the UK would have no jurisdiction as from the appointed day and it established that the
Colonial Laws Validity Act would no longer be valid. The Order established the date and established a whole system to
establish legal continuity.

We go back in time to see how the Maltese Constitution came to be and how it is.

It is coincidental that after independence we have 64 (independence), 74 (radical amendments – the republic
amendments) and 2004 (entry to EU).

The Republic Day represents Malta’s transition from a monarchy to a republic. The end of the Queen as the head-of-
state of Malta. When Malta became indpendant, it also became members of the commonwealth*.

The Commonwealth is an international organization. Britain and all its former colonies join together with the heads-of-
state of these former colonies. The symbolic head of this organization is the Queen of Britain. It has important cultural
significance as well as political, but at the same time being very loose, unlike other organizations such as the UN or the
EU.

On independence, Malta joined many organizations, such as the UN, but we also joined the Commonwealth. The
Commonwealth is something we have remained members of till today. In 1964 Queen Elizabeth the 2 nd stopped eing
the head of state as the Queen of Britain, became the head of state of Malta and therefore received advice from the
Maltese government, not the British (on matters that concern the independent state of Malta). At the same time, she
was the head of the commonwealth. There is no reduction of sovereignty at this stage, the Queen being our head of
state did not reduce in any way Malta’s sovereignty.

Dominion Status

As the process of colonization took place in the British empire, a lot of British settlers settled into foreign colonies.
Today, Queen Elizabeth II is the head of state of Australia and New Zealand. Retaining the Queen as the head of state
is not such a strange situation. Historically however, they always enjoyed a special constitutional status.

They achieved this special status through them being a dominion. The dominion status is an in-between status – it is
not quite full independence, but a high level of self-government within the British Empire. In the 1930s the Statute of
Westminster defined the relationship between Britain and its dominions.
Up to 1974, Malta had the Queen as its head of state. Malta was never a dominion of the British Empire.

 Malta was never a dominion.

 Malta to the British was always a colony.
 The most advanced colonial constitution in self-government were the 1921, 1947 and the 1961 constitutions
gave Malta a high level of self-governance but not the status of dominion.
 In the case of dominions such as Australia, they were firmly in the British Empire, but it was these very
dominions that requested the British to intervene in their internal affairs.

Malta was never a dominion because until 1964 we were always under the British Colonial Laws Validity Act.

The dominion status is different because it is the dominion which grants Britain a constitutional role. Refer to Section 4
of the Statute of Westminster, 1931 (pg 63 O. Hood Phillips).

The statute of Westminster/ the Colonial Laws Validity Act

The Colonial Laws Validity act does not give the luxury of choice to its colonies. The British acts are supreme, and laws
in contravention are null and void.

The Statute of Westminster (1931) speaks of territories with a large presence of British settlers. An Act of the British
Parliament would apply to a dominion country when that country requests it. The countries with a strong British
element did not see Britain as a master, but as a unifying force. It is the strong link between the dominion and Britain
that makes the country a dominion.
Had integration been accepted, from dependence (a colony) we would not have become independent. We would have
become an integral part of Britain and have become British citizens. Thus Malta would not itself become an
independent state, but we would have become an integral part of another independent state.

This did not come through however, mainly because that the Catholic Church feared the takeover of the Protestant
church. It was hard to be a Catholic in Britain in the days of the proposed integration. The British in Malta had learnt
from Napoleon not to antagonize the Church and held a special relationship with it. Post-integration, the Church feared
this relationship would fizzle and their influence lost.

We maintained the one link of our head-of-state being the Queen. There is no doubt that in 1964 we were a fully
sovereign state, a monarchy nonetheless. On 13 th December 1974, this changed radically and from a monarchy we
became a republic, the model of it being present in our present Constitution.

The importance of 1974 is twofold:

 The manner in which the amendments were introduced put into doubt the very supremacy of the
Constitution.
 These were far-reaching amendments to the 1964 Constitution.

Parliament in 1974 for 24 hours, attempted to amend the Constitution outside the two-thirds majority required by the
Constitution. Historically, an important fact to remember is that we were already in an anomalous constitutional
situation.

For nearly 3 years prior to 1974, the main legal guardian of the Constitutional supremacy over Parliament (the
Constitutional Court) was not functioning because it was not composed. In terms of the separation of powers, the
government appointed the judges, parliament removed them and the executive attributes the judges their roles.

Prior to 1974, 5 judges sat in the Constitutional Court. At appoint a judge did not continue working in the Constitutional
Court. Hence, since there were only 4 judges, the constitutional court could not function. The government (3 years prior
to 1974) then decided not to appoint a substitute to the judge who left.

The significance of all this is that when there was the constitutional crisis of 1974 and Parliament attempted to amend
the constitution with a different majority depicted in the Constitution, whether their attempt was done constitutionally,
could not be determined since there was not Constitutional Court to determine it.
Members of the judiciary are appointed by the president on the advice of the prime minister and their duties are
decided by the prime minister and the minister responsible for justice. When the 5 judges fell to 4, the judiciary could
not function. The executive did not appoint a judge for 3 years. When the Constitutional crisis happened in 1974, one
of the links to solve the problem was missing: the Constitutional Court was not functioning and hence it could not
decide Constitutional matters. There was not legal basis to solve Constitutional crisis.

Furthermore, the Privy Council was no longer a court which applied to the Maltese jurisdiction. In 1972, 1973, the
gove3rnmetn decided it did not need the British Court to be present, an exercise of sovereignty. Thus we did not have
the Privy Council, and we did not have the Constitutional Court.

There was a substantial amount of disagreement between Mr.Mintoff and Dr.Gorg Borg Olivier, and hence when they
came to establishing who ultimately had rule, there was no Constitutional Court to decide. Everything lay in Parliament.

When the government ws realizing that it was not gaining the agreement of the opposition to the amendments it
wanted introduce, it resorted to a legal, technical strategy. The government of the day had a majority of 1. A majority of
1 in a 2-party parliament

With the Constitutional court not functioning, there were suddenly two opinions – two legal interpretations. One suited
the government of the day very well since the Attorney General of the time (Dr.Mizzi) advised that there was a lacuna
(loophole) in the drafting of the law. He had to find a way to amend the supreme, rigid Constitution when the
government did not have the necessary majority of two-thirds. He advised the prime-minister that Article 6 of the
Constitution of Malta was not included amongst those Articles requiring a two-thirds majority. He argued that if there is
no agreement with the opposition, the consequence is that one could not change the two-thirds majority articles.

Legally, you they could by-pass the two-thirds majority. With an absolute majority, Labour could control the parliament
politically. They thus could, on their own, amend those section requiring absolute majority. Since the labour had a
majority of one, the labour’s members of parliament alone could amend those articles requiring an absolute majority.

Dr.Mizzi provided the conclusion that therefore, he could advise the government of the day that with the absolute
majority, the government could change Article 6.

The theory is, and the advice was, historically, you can amend the constitution using the absolute majority and in effect
wipe out the supremacy of the constitution. Without the two-thirds majority, the Constitution would be become like the
British one. There is nothing which Parliament could not do.

Once Article 6 was defined as being able to be abrogated, another legal interpretation was made, leading to the
constitutional crisis.

There was a reference to Constitutionalism and the case of Marbury vs. Madison. They made reference to the other
attorney general, Prof. JJ. Cremona. They said that Article 6 is declaratory, it is not the essence. The essence lies in
the Constitutional Court that can make other laws invalid, in the other Articles binding Parliament to follow the
constitution. They argued that it was nothing but an attempt to subvert the constitution. You cannot subvert the
supremacy of the constitution by abrogating a single article, the supremacy of the constitution lies not in the declaration
of its supremacy, but in its essence.

The government was feeling that through the negotiations the Nationalist party was divided. The government decided
not to take any chances. The Nationalists negotiated and came to an agreement by compromising with the government
to amend the Constitution to close the loophole. The majority of the Nationalist party was moving towards a pragmatic
approach so that the loophole be closed. This movement which distanced itself from the leader, led to the compromise
that Article 6 be entrenched with a two-thirds majority vote. In return, the opposition would reach a compromise on the
amendments the government wanted to bring about to the Constitution.
On the 12th December 1974, the Courts in the Constitutional jurisdiction were either inoperative (incidentally when we
speak of Constitutional Court, we mean the Constitutional Court of Appeal because you first institute it before the first
court and then you appeal before the Constitutional Court) .

When the Constitutional Court was inoperative, there were Courts higher than the Constitutional Court. The balance of
powers as envisaged by the ‘64 Constitution seemed to become missing. Parliament then after covering widespread
constitutional reform came to the conclusion that the majority of then Nationalist Party that was prepared to come to an
agreement with the Labour Party to amend the Constitution. There was a split within the Nationality, involving
nonetheless than the leader himself.

He did not want even to admit that the 64 constitution was drafted with a loophole. The fact that the Labour had a
majority of 1, mathematically it could amend any part of the constitution as long as it had an absolute majority. It
follows logically that it would not amend on its own those parts that required two-thirds majority. If by an absolute
majority one amends article 6, then there is no Constitutional supremacy.
1974 Amendments

Two issues are to be kept distinct: whether there existed a lacuna or not, whether article 6 represented the whole
entirety sovereignty of the Constitution. If parliament removed article 6, is it correct to state that the entire supremacy of
the Constitution collapses?

The other issue is the amendments made, which on their own merit are extremely important. They are important, first
of all because they address the constitutional defects which brought the ’74 issue to a crisis. Article 6 was not
entrenched on a two-thirds majority. Through the amendments of 1974, the first thing they did was entrench Article 6 at
the two-thirds majority. No parliament can ever bring about again the argument that through an absolute majority, you
can remove Article 6.

The second, more serious, problem was that there was no Constitutional Court composed. For three years, the
Constitutional Court was not appointed. Fortunately, the parties clashed on the importance of Article 6, but agreed on
this issue. The remedy was the automatic composition of the Constitutional court. One judge sitting in the
Constitutional Court resigns or abstains and the Court remains with two judges. The government is given 15 days to
appoint another judge on the Court and if the government decides not to appoint again, it will not lead to paralysis of
the same court, because the Constitution will intervene, and the senior-most judge, through his own action, will declare
himself to be a member of the Constitutional Court, without authorisation from anyone, by virtue of the Constitution.

Parliament decided that never again should they have a Constitutional Court not appointed for longer than 15 days.

Another important amendment was Malta’s becoming a Republic. Thus words like “governor general” had to be
substituted with “President of Malta”. Sir Anthony Mamo was the last governor general, the first President of Malta and
also the last Chief Justice to be appointed President.

Naturally, the powers of the Head of State did not change. Here, we have an important political change – the transition
from a monarchy to a Republic. The Constitution became a Republic on December 13 th, 1974.

We thought we had solved the problem, but the church school cases had arose; Mons.Mercieqa vs. Prime Minister.
1984 was a time of tension, there were big issues regarding the state schools of Malta. Mercieqa instituted a
Constitutional case against the government. At one moment in time, one of the parties requested one of the judges
composing the Constitutional Court to abstain, since they thought he might have an interest in the case.

In this particular case, one of the judges was told that he had one member of the family involved with one of the church
schools. The judge abstained and the government did not appoint anyone for 15 days. The next senior-most judge
proclaimed himself part of the Constitutional Court since the government was inactive for 15 days. This set out a chain
reaction whereby lawyers of either side started a “massacre of judges”, finding links to make judges abstain.

This kept on going until only three judges remained who could have heard the case. All the others had either abstained
on their own or had been told to abstain. The lawyers asked one of the judges to abstain. Notwithstanding the drafting
of the 1974 amendment to repel the inactivity of the Constitutional Court, the situation happened again.

Judges can be a source of law; the three remaining judges were asked to abstain, and they decided not to abstain
because of the theory of necessity – a perfect example of judge-made law. When they studied the authors, they found
that in other countries judges found themselves in this same situation. What if a judge were to sue the government for
unfair taxing? All judges would have had an interest in the case.

Which is the greatest injustice? Justice be seen to be done or justice not be done? Thus they said for the first time that
they shall not abstain since they were the last three judges. Because of the theory of necessity, they heard the case
without abstaining. The decision to abstain was theirs, and theirs only. The fact that justice had to be done, was of the
utmost importance. In unique situations, where justice cannot be seen to be done, they said that their utmost duty was
to make sure justice be done.
Sources of Constitutional Law

 Constitution
 Legislation
 Conventions
 Case Law
 Authors

Electoral Revolution of the Electoral Reform

One area which the constitution’s constitutes is being discussed is the electoral system: the proportional representation
system with through single transferable vote. We started using it in the 1920s under British rule. The system has
remained with us till this very day.

This is different from the first past the post system, not because one is more democratic, but because one system
creates a proportional system between a direct proportion, between the votes a candidate obtains and by aggregation
on a national basis and the votes of the candidates which the party has presented are equalled out.

The votes which the party gets through its candidates during a general election have to be proportionally equal to the
seats elected in Parliament. The party of AD claimed that the system works against the smaller parties. The single
transferable vote is not a plural form of voting, but it gives a plural number of opportunities to the electoral commission
so that when the vote is counted, there are various options for the vote to go to. In the electoral system the vote may
come useful at the e.g. 15th count. IT may be that the two parties are equally balanced in the electoral result and it may
be that there may be one seat in one district that decides the governing seating. Up to 1986, the used to wait three
days to see all the seats which are elected. In 1971 the election depended on one seat in one district. Candidates are
eliminated and it is those final few candidates who gain the transferred votes may be voted to.

If you express 15 preferences, you don’t vote 15 times. When one talks on every single transferable vote, is not a
plurality of votes. In 1971 the system just worked out. The 1976 election was a clear victory for Labour. 1981,
unfortunately the electoral system came missing because the proportional representational system gave us an un-
proportional result. The Nationalist Party had one the absolute majority of the valid votes but the Labour Party won an
absolute majority in Parliament.

This meant that if one puts all the opposition parties together elected, they won’t defeat the government. The seats
elected by the government (the majority) are greater by one seat than all the opposition put together. This number
(whatever it is) remains as fixed number of what an absolute majority in Parliament means, irrespective of the
members of parliament present. The Dom Mintoff Government had an absolute majority in government but not one in
the country. Both parties agreed the result cannot be allowed to happen again.

An objective stance is needed: we must face reality as we see it. The law must be understood objectively as a science.
The country could have either taken the road to amend minor defects of the proportional representation system. The
parliament took another road. In theory this system favours the small parties but Parliament decided that instead of
fine-tuning the system, Parliament decided to ensure majority rule. In our two-tier electoral system we find the voting
system which we have, but in 1986 the vital amendment made was that if a party obtains an absolute majority of all the
valid votes cast but does not obtain at least an absolute majority of Parliament, then the seats are increased after the
official result is declared to grant it a majority of one only. This is a hybrid system between the proportional system, but
overriding it is a corrective mechanism to ensure a majority rule, not proportionality.

This system was used in 1987, but if we had not had this system we would have had another 1981 result, and also in
1996. It ensures majority rule, but not proportionality.

Plural voting is when one person has more than one vote; it was instituted in Malta, but is not present anymore.