ADPD appeals court ruling over allocation of additional parliamentary seats
The ADPD has appealed a court decision that had dismissed the pleas it had made challenging the manner in which additional seats were allocated to the two main political parties following the 2022 general election.The First Hall of the Civil Court ha
The ADPD has appealed a court decision that had dismissed the pleas it had made challenging the manner in which additional seats were allocated to the two main political parties following the 2022 general election.
The First Hall of the Civil Court had rejected all pleas made by ADPD, in a judgment raising several legal points of interest. In its original application, ADPD argued that Maltese electoral laws give rise to discrimination against smaller parties. In particular, reference was made to those provisions which provide that the allocation of additional parliamentary seats to reflect proportionality with votes applies solely to those parties which would already be represented in parliament. The recent mechanism referring to the allocation of additional seats for the under-represented sex, which only comes into play if two parties are elected in a general election, was also criticised as being discriminatory against smaller parties not being the two traditional parties elected to parliament.
In its judgment, the first Court noted that no provision of the Constitution could be deemed to be inconsistent with, or in breach of, another article of the same Constitution. The so-called supremacy of the Constitution which affords primacy to the Constitution where any other law conflicts with it, makes no reference to the possibility of inconsistencies between different articles of the same Constitution. Thus, no article of the Constitution could be deemed to be inconsistent with another article thereof. The Court also noted that whilst ordinary legislation is subject to the European Convention on Human Rights, the Constitution of Malta is not so. The first court had dismissed ADPD's pleas.
Filing an appeal before the Constitutional Court, ADPD is arguing that the First Court was wrong when it said that no remedy for inconsistency within the constitution exists. The ADPD representatives argued that the First Court "mistakenly" equated the supremacy of the Constitution with the presumption of the perfection of the Constitution. The party's representatives also argue that it is not true that the Constitution is a homogenous legal instrument - "it distinguishes between provisions that are enforceable and those that are not. The provisions regarding the protection of fundamental human rights are enforceable."
The appellants said that the first court concluded that since the Constitution does not mention a scenario where various articles of the same Constitution are in conflict, such a conflict cannot exist. The appellants argue that the fact the Constitution does not mention this possibility simply indicates the presence of a "lacuna" or "doctrinal vacuum" that must be resolved - and not that the conflict should be dismissed, "resulting in fundamental human rights being unenforceable."
They said that the first court dismissed the legal principle of "ubi jus ibi remedium" (where there is a right, there is a remedy). The appellants also said that the first court was wrong when it decided that the European Convention of Human Rights is not applicable in this case.
The appellants asked the court to revoke and annul the decision of the First Hall of the Civil Court in its Constitutional jurisdiction, dated 16th December 2024, and uphold the claims of the appellant applicants.
The appeal was filed by ADPD Chairperson Sandra Gauci, ADPD Secretary General Ralph Cassar in representation of the ADPD, as well as Cassar and Carmel Cacopardo in their own name as election candidates.
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