Malta’s electoral process falls short of international democratic standards. This article surveys some of those shortfalls on the eve of the 2022 general election.
- Freedom of expression
A 3-judge inquiry found the Maltese government responsible for the environment of impunity that allowed a journalist to be killed in 2017. The inquiry’s recommendations have not been implemented.
The findings of the inquiry include several elements that persist in the erosion of freedom of expression in Malta such as exposure to SLAPP suits, discretionary and opaque government expenditure in advertising and financial support to media, government-controlled public broadcasting, demonisation of journalists on government-controlled media, unresponsiveness to freedom of information requests, and inexistent whistle-blower protection.
- Freedom of assembly and association
Though the matter now appears to have been shelved, during the present term the state moved to ban Repubblika on the charge that its activities amounted to partisan propaganda.
Ukrainian residents of Malta have been warned to stay away from activities organised by Repubblika or face retribution from government authorities.
- Protection of minorities
There is no effort to create the conditions necessary for the effective participation of persons belonging to national minorities in public affairs. Only people born in Malta have any means of participating in the electoral process.
- Civil rights of prisoners
On top of depriving prisoners from their right to free movement (which is the punishment they are handed down for their crimes) we also deny them the right to participate in an election. This is not a security issue since prisoners serving a short sentence vote inside the prison building. It is just a bonus punishment reserved for prisoners serving a longer sentence.
- Media coverage
The state is obliged to ensure the media owned by the government (TVM) covers elections without discrimination against or without supporting any party or candidate. TVM systemically fails at its obligations of impartiality.
The state is obliged to introduce and enforce rules that ensure that broadcast media (including privately owned TV) cover electoral campaigns in a fair, balanced and impartial manner in their overall programme of services. A 5-minute look at the stations owned by the party stations shows there’s nothing of the sort.
Malta is obliged to adopt measures to ensure public and private broadcasters, during the election period, are fair, balanced and impartial in their news and current affairs programmes, including discussion programmes such as interviews or debates. We know this does not happen.
Every candidate for election is supposed to have an equal opportunity of access to the media, particularly the mass communications media. This principle cannot be respected if two political parties own and control all broadcasting media and several other media sectors at the exclusion of anyone else.
Park for a moment the political party stations. On public broadcasting we comply with the international standard regulating and restricting the purchase of advertising time to ensure equality of conditions and rates of payment. But it’s a free for all on social media and on the internet, and on other conventional advertising methods such as public events or billboards. International standards establish the notion that the principle of equality of opportunity can, in certain cases, lead to a limitation of political party spending, especially on advertising. Where these limits exist in our laws, they are never enforced.
- Measures to protect the media at election time
International standards require the state to protect the media from attacks, intimidation, or other unlawful pressures during an election campaign. That requirement makes no exception for a Labour Party poster with a picture of me as an angry man causing political disasters.
- Separation of parties from state
The separation between the state, the government and the Labour Party is opaque and doubtful. Robert Abela habitually makes national announcements using the media owned by his political party. A cohort of media workers at the Labour Party are salaried government employees appointed on positions of trust.
Consider how Prime Minister Robert Abela signed treasury cheques sent to all households two weeks before the election at the same time as Labour leader Robert Abela warned only his re-election would provide for a continuation of these payments.
- Equal treatment of political parties
Non-parliamentary parties contesting parliamentary seats are systematically discriminated against by public authorities, particularly the Electoral Commission and the Broadcasting Authority.
- Equal opportunities for women
Although the new measures to add to the composition of parliament extra seats of otherwise unelected women candidates, no effort has been made to encourage an equal presence of women on the lists of candidates presented by political parties on the ballot sheet.
- Campaign funding
International standards urge the state to regulate the funding of political parties and electoral campaigns, ensure the separation of party and state, and establish the conditions for competition in elections on an equitable basis.
We are creeping ever further from this objective. Although we do have party funding rules, they are not enforced, and financial declarations are not adequately verified. Political parties use limited liability companies they own to collect funds but mask the money as commercial settlement of invoices for phantom services. Most funding is attributed to cash payments in frequent telethons that likely serve as a front for illicit payments from unknown sources.
The government and ministers campaign for re-election at events funded by the government. Ministries and government departments, publicly owned assets like cars and offices, stationery, utilities, and ICT devices on the government’s inventory are used for personal campaigning.
The abuse of incumbency guarantees inequitable resources for campaigns.
International standards also require transparency in political party, candidates, and election campaign funding. Despite flimsy legislation, enforcement and verification of candidates’ declarations is inexistent. The shared interest of political parties means that the Electoral Commission does not ask questions to candidates of either party about their income and expenditure on campaigning. The police are not known to have ever investigated these matters on their own initiative either.
Standards require the transparency of electoral expenses through the publication of campaign accounts. Political party accounts in Malta are indeed published but they are absurdly delayed. The last available accounts of the large parties published by the Electoral Commission are for 2018. Specific campaign accounts are not published.
- Civic education
The state is encouraged to initiate or facilitate national programmes of civic education to ensure the population are familiar with election procedures and issues. However, throughout the political season, and especially during the election campaign, government communication is propagandistic and serving the exclusive purpose of securing re-election.
Clientelism is officially encouraged. Prime Minister Robert Abela has repeatedly suggested to voters who require personal favours to call him or his wife directly to have their needs seen to.
The state makes no effort to communicate the public purpose of elections, allowing for the perpetuation of the notion that the right to vote is a currency that can and must be traded by voters in their own narrow interest and at the community’s expense.
Candidates habitually and openly breach legislative provisions on treating their voters with free food and drink or to promise them to seek to arrange for favours after the election in exchange of their vote. The systemic breaches of the law are never subjected to investigation or action and are implicitly communicated to the voting public as appropriate and desirable behaviour.
- Neutral and impartial management of elections
Like all post-colonial constitutional bodies, the Electoral Commission is composed of representatives of the two existing parliamentary parties. To a limited extent this ensures impartiality in matters of conflicting interests. However, where parties share interests that are contrary to the interests of potential competitors or the public interest as such, the Electoral Commission is exclusively driven by the shared partisan interests of the parties that control it.
International standards suggest that the electoral commission includes at least one member of the judiciary. This is not the case in Malta.
13. Effective Appeal
International standards require a recourse to a final appeal from electoral commission decisions to a court. The appeal procedure must be simple and devoid of formalism, and the court must have the authority to cancel the election (or part of it) and order it to be redone. The Maltese court has ruled that it does not have such an authority.
Observations
Most of these shortcomings are not new. Some are as old as the country as an independent state. Some are older than that. As with many of our systemic and constitutional deficiencies we have relied on our politicians to exercise restraint and know their limits. When that failed, we relied on one political party to save us from the other.
We are now coming to an election where the extent of state capture (particularly the capture of institutions) is such that our state has been found responsible for the killing of a journalist. It is important to remember how the state has made itself responsible for the killing of a journalist. It has done so by creating enough inertia in our institutions to give criminals the idea they could get away with their crimes, even murder.
We have a similar problem here. In the considerations listed above there are several that are already unlawful under existing laws. We know political parties are creative about hiding the sources of their income. We know that the Labour Party grossly under-declares what it spends. We know candidates give their voters free food and drink. We know they promise them jobs and permits if they’re elected. If we know it, the police know it, and they do nothing about it.
That is the sort of atmosphere where criminals think they can get away with anything.
That is where a party or a candidate perpetrating electoral fraud can do so without consequences they do not intend.
To an extent our old two-party system brought us here. The situation worked while both parties could win or lose and kept each other in check, focusing on what they disagreed upon, shelving considerations that would have challenged their shared interests.
As our democratic safeguards were eroded by the dysfunctional compromises of the two-party system, we slipped, barely noticing it, into a one-party system.
Don’t be fooled by all the colours. What passes for a parliament in China includes 9 opposition parties. You can still have elections, and you can still have opposition parties, and you can still have a one-party system. Because a one-party system is not defined by the exclusion of all other parties from existence but their exclusion from any reasonable opportunity to defeat the incumbent party.
With these in-built weaknesses and with the determination of the Labour Party to exploit them to ensure its perpetual grip on power, we’re justified in wondering whether we can ever have free and fair elections again.
Note
The above list matches our elections against the European convention on human rights, the European Framework Convention for the protection national minorities, the Council of Europe recommendations on the electoral rights of prisoners (1962), and on measures concerning media coverage of election campaigns (1999), the documents on the human dimension of the OSCE (1990 and 1991), the EU’s Charter of fundamental rights, the IPU’s declaration on criteria for free and fair elections (1994), the Venice Commission’s guidelines on elections (2002), and its guidelines on the financing of political parties (2001).
Item 13 on a system of appeal was added on Thursday 24 March following a decision by the Maltese courts rejecting an appeal by the Nationalist Party on a decision by the Electoral Commission.