Should the ADPD get the extra parliament seat?

Malta’s parliament is elected through a single transferable vote (STV) system in 13 multi-member districts. Historically, this system has produced a de facto two-party Parliament: since independence in 1964, only the Labour Party (PL) and Nationalist Party (PN) have won seats on their own tickets, with a lone exception in 2017 when a small party piggybacked on a PN coalition.

Over time, constitutional mechanisms were introduced to correct distortions in the seat-vote ratio. Notably, 1987 amendments ensured that a party with an absolute majority of votes would get a governing majority of seats, addressing the 1981 anomaly when a party won more votes but fewer seats. In 2007, this principle was extended to improve overall proportionality between the two major parties: if one major party’s seat share falls below its vote share, additional seats are added to redress the balance.

Crucially, these proportional “top-up” adjustments operate only for parties that have entered Parliament. In practice, this means the adjustment mechanism is triggered only in a two-party scenario, benefiting PL and PN. If three or more parties win seats, the system reverts strictly to the STV outcome – only candidates who reach the district quota are seated, with no national seat adjustments for proportionality beyond ensuring a majority rule in the rare case one party exceeds 50% of the vote. This legal framework reflects an assumption of a binary PL–PN contest and reserves proportional corrections for the two major parties.

Further tweaks include the 2021 gender-balancing mechanism that can add up to 12 seats to improve representation of the under-represented sex. This mechanism, too, is conditional on only two parties being in Parliament. If a third party were present, the gender top-up would not be applied and, in fact, third-party candidates are excluded from consideration when allocating these seats. In the 2022 general election, this rule led to an anomaly: ADPD candidate Sandra Gauci polled enough votes to outrank some candidates who were given gender-corrective seats, yet she received no seat simply because her party banner wasn’t one of the two major parties. These frameworks underscore that Malta’s Constitution and electoral laws, as currently written, prioritize proportional adjustments in a two-party context, and effectively shut off those mechanisms in a multi-party outcome.

ADPD’s Claim: Votes vs. Seats

The Green Party (formed from Alternattiva Demokratika and Partit Demokratiku) argues that this framework unfairly silences third-party voters. In the 2022 general election, ADPD garnered about 4,747 first-count votes nationwide, roughly 1.6% of the vote. While this was not enough to meet a quota in any single district (hence no ADPD candidate was elected in the STV counts), the party notes that 4,747 votes exceed the “national quota” of votes that on average corresponds to one parliamentary seat. ADPD’s position is that every vote should carry equal weight and that if the two big parties are awarded extra seats to reflect proportionality, ADPD’s votes deserve representation as well. Party leaders contend the current system gives weight only to votes cast for PL and PN, ignoring thousands of votes for ADPD.

They cite the principle of proportional representation to insist that approximately 1.5% of the electorate, enough for one seat by their calculation, should not be effectively disenfranchised under a truly fair system. In their view, Malta’s democracy is undermined when a sizeable bloc of voters ends up with zero representation, especially while the major parties inflate their parliamentary strength via corrective seats and gender quotas that bypass smaller parties entirely.

ADPD’s frustration is heightened by the fact that additional seats were indeed awarded after 2022 but only to PN and PL. After first-count results, two extra seats were given to the PN as a proportionality adjustment, correcting what would have been a seat imbalance in Labour’s favor. Then 12 more seats (six per side) were added through the gender-balancing mechanism. The result was an expansion of Parliament from 65 to 79 members, with not a single one representing ADPD. From ADPD’s perspective, this outcome confirms that the rules are by design discriminatory, entrenching a PL–PN duopoly and devaluing votes for third parties. The party’s Chairperson Carmel Cacopardo declared that in a healthy democracy, every vote counts and that Maltese electoral law as applied in 2022 discriminates against us, the third party.

Legal Basis and Current Constitutional Rules

Despite ADPD’s moral claim, the real question is whether it has any legal basis under Malta’s current Constitution and laws. The relevant provisions are unambiguous in limiting proportional seat adjustments to parties already elected to Parliament. In other words, a party must first clear the hurdle of winning a seat outright (by reaching a district quota) before it can benefit from any top-up seats for proportionality or gender balance. ADPD’s 4,747 votes, spread across districts, did not yield a quota in any single district, hence no ADPD candidate made it to Parliament in the initial count.

Under the black-letter law, ADPD’s votes simply do not enter the equation when allocating extra seats to better align seats with votes. The Constitution’s proportionality mechanism, as amended in 1987 and 2007, was crafted to correct major vote-seat distortions between the two largest parties (initially to guarantee the vote-winner a governing majority, later to ensure the runner-up is not grossly under-represented). By explicit design, this mechanism operates only for parties which manage to enter parliament. There is no clause in the Constitution or electoral law granting a seat to a party that failed to elect an MP in the normal STV count – no matter how close their total votes come to a theoretical quota.

The First Hall of the Civil Court (constitutional jurisdiction) confirmed this strict legal position in December 2024 when it rejected ADPD’s constitutional challenge. The court held that it could not simply read in a new right to a seat for ADPD without violating the constitutional text. It emphasized that no provision of the Constitution can be deemed to breach another provision of the same Constitution. In practical terms, this means the court refused to declare the electoral system’s two-party adjustment rule unconstitutional on the basis of general principles, since that rule itself is embedded in the Constitution. The judge noted that while ordinary legislation must conform to the European Convention on Human Rights (ECHR), the Constitution of Malta is not subordinate to the ECHR. Thus, ADPD’s appeal to broad principles of equality or international law ran up against a fundamental doctrine of Maltese jurisprudence: the written Constitution is supreme, and its deliberate compromises (even if they favor a two-party status quo) cannot be invalidated by another constitutional article or external treaty. In short, under current law ADPD’s claim to a seat finds no support – the system is functioning exactly as intended by the constitutional drafters, however unfair its outcomes may seem to third-party voters.

Duopoly Design vs. Multi-Party Fairness

Critics of ADPD’s stance argue that Malta’s proportional adjustment rules were never meant to guarantee minor parties a seat absent a quota; rather, they were a safety valve for the two-party system. The historical record supports this: the 1987 majority rule amendment was a response to a binary partisan crisis in 1981, and subsequent tweaks assumed a Parliament of government vs. opposition with no third party in between. The logic was to prevent grossly perverse results between the top two parties – for example, a repeat of 1981 when the party with fewer votes had more seats, or scenarios where one major party’s seat count is disproportionate to its vote share due to district effects. The introduction of a third-party MP fundamentally alters those calculations. Indeed, the Constitution explicitly provides that if a third political force wins a seat, the proportional adjustment mechanism is largely disabled. In such a case, proportional top-ups cease to apply (except to ensure an absolute majority winner is able to govern), effectively freezing the seat distribution as determined by STV quotas. This design reflects an intentional trade-off: the system rations proportionality, prioritizing stability and clear outcomes over full multi-party fairness.

From this perspective, ADPD’s claim is viewed as outside the intended scope of Malta’s electoral model. Extending the proportional adjustment to include a party with no elected MPs could be seen as moving the goalposts after the game. It raises practical questions: On what basis should a threshold of votes entitle a party to a seat if not the district STV quota? If 4,747 votes (about 1.4% of votes) merits a seat, is Malta effectively adopting a national threshold for parliamentary representation? The current law sets the threshold de facto at one district quota (roughly 3–4% of a district’s vote), which is already a low bar by international standards for representation, yet ADPD did not meet it. Lowering the bar to ~1.5% nationally via the courts, some argue, would be creating a new rule without legislative mandate, potentially opening the door for even smaller factions to demand seats.

There is also the ironic consequence that if ADPD were granted a seat, it would flip the election into a three-party Parliament, thereby nullifying the proportional adjustment mechanism that awarded extra seats to PN. In 2022, for example, PN received two top-up seats to better reflect its vote share. Had ADPD been in Parliament, those PN adjustments would not have been triggered at all. The result might have been a parliament with PL holding an even larger seat majority over PN (since the corrective was turned off), arguably undermining overall proportionality between the major parties – the very principle the mechanism was designed to protect. In essence, ADPD’s victory could invalidate the proportional correction for others, illustrating a built-in tension: the system cannot simultaneously guarantee perfect proportionality in a multi-party context and also preserve the safeguards crafted for a two-party system.

Fairness, Legal Challenges and Constitutional Jurisprudence

ADPD’s ongoing legal challenge seeks to reinterpret the Constitution’s electoral provisions on grounds of fairness and non-discrimination. The party contends that the current two-party-only adjustment rule violates fundamental democratic principles – notably the right to free and equal elections (protected in the Constitution’s declaration of democratic values and in Article 3 of Protocol 1 of the ECHR). Their lawsuit argues that every citizen’s vote should carry equal weight and that by entrenching a corrective mechanism exclusively for PL and PN, the law treats third-party voters as second-class, contrary to Malta’s commitments to democracy and human rights. ADPD points out that the gender quota amendment and the proportional top-up clause were both drafted to exclude third parties – a deliberate choice they say cannot be shielded by simply codifying it in the Constitution. On appeal, ADPD has advanced bold arguments that Malta’s Constitution must be read in harmony with higher principles of human rights. They cite the Constitution’s own Article 1 (which declares Malta a democratic republic founded on respect for human rights) and other clauses obliging Malta to adhere to international treaties. In one notable precedent, the Constitutional Court in Paul Stoner vs. Prime Minister (1996) found a provision of the Constitution discriminatory and effectively unconstitutional, suggesting that not even entrenched constitutional text is beyond judicial review if it offends fundamental rights. ADPD argues that allowing a permanent structural bias against third-party voters would be such an offense.

However, this line of reasoning is novel and faces an uphill battle in Maltese jurisprudence. The lower court’s dismissal of ADPD’s case reflects the traditional view that courts will not rewrite the Constitution under the guise of rights. Malta’s constitutional history shows that electoral reforms have come via cross-party political consensus and formal amendment, not judicial intervention. The judiciary tends to interpret the election rules as laid out, deferring questions of fairness to the political process. ADPD’s appeal to broad democratic ideals, while persuasive to reformists, asks the court to step into the legislature’s role by redesigning seat allocation criteria. This is a step the Constitutional Court may be reluctant to take, lest it be seen as usurping Parliament’s prerogative in setting electoral policy. In short, ADPD is pushing Malta’s constitutional framework into uncharted territory – testing whether the principle of non-discrimination can override an explicit electoral formula enshrined in the Constitution. The outcome remains uncertain, but many observers expect the courts to hew closely to established doctrine, upholding the letter of the Constitution (and thus the status quo) unless a clear constitutional amendment or consensus emerges to change the system.

Potential Implications of Granting ADPD’s Claim

If ADPD were to prevail and be granted a parliamentary seat (whether by court order or hypothetical legal reform), the implications would extend beyond one extra MP. First, it would set a precedent that vote-to-seat proportionality trumps the quota-based STV outcome, effectively introducing a new layer of national compensation seats for small parties. This could prompt calls from other minor parties or independents to claim seats if they achieve comparable vote totals in future elections. The immediate threshold becomes a critical question: ADPD’s ~1.5% nationwide vote yielded one seat – would a party with 1% be entitled to a fraction of a seat, or does this approach demand a formal national threshold (for example, 1.4% of votes) to qualify for representation? Without clear rules, legal uncertainty could cloud election outcomes. The meticulous STV counting process might be followed by litigation over how unrepresented votes translate to seats. This scenario could undermine confidence in the finality and stability of results, an outcome Maltese political leaders have long sought to avoid.

Second, awarding a seat to ADPD under current rules would force a re-examination of the proportionality mechanism for the big parties. As discussed, including a third-party seat retroactively in 2022 would have altered whether PN deserved two extra seats or perhaps only one. Future elections with a third party presence might see no top-up seats at all for under-represented parties unless the law is rewritten – potentially reviving the risk of skewed results that the 1987 amendment intended to eliminate.

In a closer election, a few thousand votes for a third party could block the corrective mechanism and possibly lead to a hung parliament or a situation where a party with a plurality of votes is denied a proportional seat boost. Such complexities could destabilize the clear winner’s bonus principle that has given Malta stable single-party governments. It may also incentivize tactical voting or coalition pre-arrangements (as seen in 2017) to avoid falling into a no-adjustment scenario. Moreover, if the courts recognize ADPD’s claim on anti-discrimination grounds, it could invite challenges to other aspects of the electoral system – for instance, the gender quota rule’s exclusion of third parties might be next in line for legal attack as discriminatory. A domino effect of judicial interventions might push Malta toward a fundamentally different electoral model (e.g. adding a national list tier or formal proportional threshold) through piecemeal rulings, which is arguably not the ideal method for comprehensive electoral reform.

On the other hand, a successful ADPD claim could also inject new pluralism into Maltese politics. It would send a signal that the duopoly stranglehold can be challenged, potentially encouraging voter engagement among those disillusioned with the two major parties. If managed via a proper legislative update – say, introducing a small number of national at-large seats for parties crossing a vote threshold – it might enhance perceived fairness while maintaining overall stability. But doing so requires careful calibration by lawmakers to avoid unintended distortions.

Maltese political leaders would need to consider mechanisms used abroad (such as in New Zealand or Germany, where mixed systems ensure both local representation and proportional fairness) and adapt them to Malta’s context. Simply awarding a seat through the courts, without a broader plan, risks creating a one-off fix that leaves many questions unanswered: for example, how to handle casual elections (by-elections) for such a seat, how it counts toward the gender balance count, and whether this change persists or is ad hoc for that legislature.

In sum, granting ADPD’s claim would mark a significant shift in Malta’s constitutional order – one that could resolve an immediate perception of injustice but at the potential cost of legal and electoral certainty. It would likely force a long-delayed conversation on electoral reform, lest future elections result in drawn-out court battles. Maltese leaders must weigh whether the noble goal of broader representation justifies overturning a formula that has, for all its flaws, delivered stable governments and clear outcomes for decades. Any remedy should strive to uphold the proportionality principle without undermining governability. That balance is delicate, and it underscores why changes to election rules are usually achieved through broad political consensus rather than judicial fiat.

What does this mean?

ADPD’s fight for a parliamentary seat spotlights the tension between constitutional design and evolving democratic values in Malta. The party claims constitutional and legal framework in force was engineered to favor a two-party system, applying proportional adjustments only in a binary contest and pointedly excluding third-party entrants. From a strictly legal standpoint, ADPD’s claim finds little support in the letter of the law or past jurisprudence.

A court-ordered seat would require an inventive reading of the Constitution that Malta’s courts have so far resisted. Moreover, such a move could have knock-on effects undermining the very proportionality and stability that the current system aims to preserve. The counterargument is that democracy is not static: as voter allegiance fractures and new voices emerge, the legal system must adapt to ensure fairness and inclusion. Malta’s constitutional order has proved adaptable in the past, but through deliberate amendment, not courtroom improvisation. For Malta’s political leaders, the ADPD case serves as a clarion call to proactively address electoral reform.