REFERENDA ACT (preamble—referendaact)

REFERENDA

CHAPTER 237

REFERENDA ACT

To make provision for the taking of referenda.

20th July, 1973

ACT XXXIII of 1973, as amended by Acts XXXV and LVIII of 1974, XI of 1975, XIII of 1983,

VIII of 1996 and XIX of 2002; and Legal Notices 411 of 2007 and 426 of 2012.

The short title of this Act is the Referenda Act.

[ARTICLE 14]

REFERENDA ACT

Declaration for the Holding of a Referendum

We the undersigned persons being persons registered as voters

for the election of members of the House of Representatives (the

first * (1) ..............persons undersigned being the proposers) demand

that the question whether the following provisions of law, that is to

say * (2)

should not continue in force shall be put to those entitled to vote in

a referendum under Part V of the Referenda Act.

Signature

Legally valid

Address

Electoral Division

identification

document number.

Notes

a number not being less than five and not more than ten

(1)

being proposers in terms of article 15(2) of the Referenda

Act.

insert here the details of the provisions on which the

(2)

question is to be put.

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In this Act, unless the context otherwise requires -

"commissioners"

means

the

members

of

the

Electoral

Commission;

"Constitution" means the Constitution of Malta,

"Electoral Commission" means the Electoral Commission

established by article 60 of the Constitution;

"electoral division" has the same meaning as it has for the

purposes of the election of members of the House;

"Electoral Polling Ordinance" means articles 41 to 62 of the

Electoral (Polling) Ordinance (also reproduced as the Fourteenth

Schedule to the General Elections Act;

"Gazette" means the Malta Government Gazette;

"House" means the House of Representatives;

"Malta" has the same meaning as is assigned to it in article 124

of the Constitution;

"referendum" includes a referendum under this Act and a

referendum under the Constitution;

"referendum under this Act" means a referendum held for any

purpose as provided in article 3(1);

"referendum under the Constitution" means a referendum held

for the purposes of article 66(3) of the Constitution;

"writ" means the writ issued under article 9.

PART II

OBJECT, NATURE AND DATE OF A REFERENDUM

[ARTICLE 10]

Provisions regulating the Conduct of Referenda

1. In this Schedule

"Act" means the General Elections Act; and

"Ordinance" means the Electoral Polling Ordinance.

2. The Act shall apply to referenda as if

(1) unless otherwise determined by the Electoral

Commission because of their context, references

therein to "election" "general election" or "election of

the Members of the House" were references to

"referendum";

(2) the definition of "political party" in article 2(1) thereof

were substituted by the following

" "political party" means any person or group of

persons who, having contested the general

election under one name, is represented in the

House by at least one member.";

(3) the reference to "the number of electoral divisions

being contested by it" in article 61A(1) thereof were a

reference to the number of electoral divisions involved

in the referendum;

(4) the words "set out in Schedule 8(B) of this Act" in

article 68(3) thereof were deleted;

(5) article 71 thereof were substituted by the following

"71. (1) Each voter shall have one vote and shall

indicate his choice by placing on the ballot

paper an "X" or other mark either over the box

indicating an affirmative vote or over the box

indicating a negative vote

Provided that a vote shall not be invalid if

the mark is not over the box but is placed in such

manner that in the opinion of the Commission it

clearly indicates the choice of the voter.

(2) A ballot paper shall be invalid in which

(a) an "X" or other mark indicating the choice

of the voter is not placed; or

(b) an "X" or other mark indicating the choice

of the voter is placed over both boxes; or

(c) it cannot be determined with certainty over

which box the "X" or other mark is placed;

or

(d) any writing or mark is placed by which the

voter can be identified; or

(e) the official mark of the Commission is not

made.";

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(6) in article 72(4) thereof the words from "and following

the procedure" to the end thereof were substituted by

the words "after the Assistant Commissioner has read

to the voter the question put and asked him whether he

would like to vote "Yes" or "No".";

(7) article 77(2) thereof were substituted by the following

"(2) A mixed polling place is a polling place which

contains a ballot box in which the voters

mentioned in sub-article (4)(a) and (b) shall

vote.";

(8) in article 86(10) thereof the period of preservation of

the papers and documents therein mentioned were five

years from the day of publication of the official

results;

(9) in article 89(2) thereof the words "the number of

candidates presented by it to contest the election" were

substituted by the words "the number of counters being

used by the Commission at any one time";

(10) in article 107(1) thereof the period for which the

papers shall be kept were five years from the date of

the referendum;

(11) in articles 108 and 115(1) thereof the words from "the

right of any person" to the words "to the House" were

substituted by the words " the legality of the

referendum";

(12) in the Sixth, Tenth and Eleventh Schedules thereto for

the words "an election of Members of the House of

Representatives" wherever they occur there were

substituted the words "a referendum";

(13) the Thirteenth Schedule were amended as follows

(a) regulations 2, 7(3) and (4), and 8 to 22, both

inclusive, were deleted;

(b) in regulation 3 the words "first preference" were

substituted by the word "mark";

(c) in regualtion 4(5) the words "indicating the

candidate to which the first preference has been

given" were substituted by the words "indicating

the choice of the voter"; and

(d) in regulation 7 references to "candidates" and

"trays" were references to the choice given to the

voter between a "Yes" and a "No" vote;

(14) articles 15 to 44, 45(a), 49(3) to (8), 51 to 55, 60,

68(2), 71(1) to (3), 104(2) to (4), 105(2), 106(3),

107(3), 109 and 112(1)(a), and the Second, the Third,

the Fourth, the Fifth, the Eighth, the Eighth (B), the

Ninth and the Twelfth Schedules thereof were deleted;

and

(15) all references therein to "electoral divisions",

"candidates", "transfer of votes" and "first preference"

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were deleted.

3. The Ordinance shall apply to referenda as if articles 41 to

52 and 58 to 62 thereof were deleted and references therein to

"election" and "election of a Member of the House" were

references to "referendum".".

(1) Persons entitled to vote in a referendum under this Act

will be called upon to declare

(a) whether they approve proposals set out in a resolution

passed for that purpose by the House and published in

the Gazette; or

(b) whether they agree that a provision of law should be

abrogated in accordance with the provisions of Part V

of this Act,

as the case may be.

(2)

Persons entitled to vote in a referendum under the

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Constitution will be called upon to declare whether they approve a

bill for an Act of Parliament submitted to them for the purposes of

article 66(3) of the Constitution.

(1)

Every referendum shall be common, equal, secret and

free.

(2) The question or questions to be put to those entitled to vote

shall be so framed that they can be answered with either yes or no;

and the ballot paper on which the vote is to be recorded shall be in

such form that each such question may be so answered.

(3) The space in the ballot paper in which a vote is to be

recorded shall have a coloured border: the border of the space in

which an affirmative vote is to be recorded shall be coloured in one

particular colour, and the border of the space in which a negative

vote is to be recorded shall be coloured in a different colour.

(4) Where voters are asked to vote on more than one question

in the same referendum, the parts of the ballot paper referring to

each separate question shall be printed in a colour different from

that in which the other parts of the ballot paper are printed.

(5) The form of the ballot paper shall be that approved by the

Electoral Commission.

The day of a referendum shall be fixed by the President of

Malta, so however that a minimum of five weeks shall lapse

between the publication of the Writ and the day of the polling.

PART III

POLLING DISTRICTS AND NOTICES AND POLLING AUTHORITIES

(1) For the purposes of any referendum there shall be one

polling district.

(2) Unless the House otherwise resolves, the whole of Malta

shall be one polling district. Where the House resolves that the

question is to be put only to voters registered in any one or more

electoral divisions, that division or those divisions shall form the

polling district.

Every referendum shall be conducted and shall be subject

to the direction and supervision of the Electoral Commission.

In the exercise of their functions and duties under this Act

the Electoral Commission and the commissioners shall have the

same powers, privileges and immunities as they have in the

exercise of their functions in regard to the conduct of the election

of members of the House.

(1) Whenever a referendum is to be held, notice thereof

and of the day fixed by the President of Malta for the referendum

shall be given to the commissioners by a writ under the hand of the

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President of Malta.

(2) The Chief Electoral Commissioner shall cause the writ to

be published in the Gazette.

(1) Save as otherwise provided in the Second Schedule, the

provisions of the General Elections Act and of the Electoral Polling

Ordinance shall apply to the conduct of referenda.

(2) The Electoral Commission may, from time to time, issue

directives interpreting, as may be necessary, the provisions of the

General Elections Act and the Electoral Polling Ordinance in their

application to refrenda under this Act. Such directives shall be

published in the Gazette as soon as may be after they are issued

Provided that any directive so issued shall enter into force

immediately even before its publication.

PART IV

PERSONS ENTITLED TO VOTE

All persons who, on the date of the publication of the writ

to which a referendum refers, are entitled to vote for the election of

members of the House shall be entitled to vote in that referendum

Provided that, where, in a referendum under this Act, the

House has resolved that the question is to be put only to voters in

any one or more electoral divisions, the persons entitled to vote in a

referendum held on that question shall be those persons only who

are entitled to vote in that division or in those divisions, as the case

may require.

Every person entitled to vote in a referendum shall have

only one vote.

PART V

ABROGATIVE REFERENDA

(1) Any provision of any enactment, whether enacted

before or after the coming into force of this Part, and not being an

enactment listed in sub-article (2), shall have effect and continue to

have effect subject to the provisions of this Part of this Act.

(2) The provisions of this Part of this Act shall not apply to this

article and to the following enactments

(a) the Constitution and any regulation made under any

provision thereof;

(b) the European Convention Act;

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(c) any law providing for the matters referred to in article

56(8)(a), (b) or (c) of the Constitution;

(d) the Interpretation Act;

(e) the General Elections Act;

(f) any fiscal legislation;

(g) any legislation giving effect to any treaty obligation

undertaken by Malta; and

(h) save as provided in article 36A of the Local

Government Act, any bye-law made by any local

council under the said Act.

(3) For the purpose of this article, "enactment" means an Act of

Parliament and any Act passed by the Legislature of Malta and

includes any Code, Ordinance, Proclamation, Order, Rule,

Regulation, Bye-law, Notice or other instrument having the force of

law in Malta.

(1) Any number of persons registered as voters for the

election of members of the House of Representatives, being not less

than ten per cent of the total number of persons registered as voters

as appear in the revised Electoral Register last published before the

delivery of the declaration in accordance with sub-article (2), may

by signing a declaration in the form set out in the First Schedule

demand that the question whether one or more provisions of an

enactment to which this Part applies, shall not continue in force,

shall be put to those entitled to vote in a referendum under this Act.

(2) The declaration made in accordance with sub-article (1)

shall be delivered to the Electoral Commission which shall

ascertain whether the number of voters required in accordance with

sub-article (1) has signed the declaration.

(3) The Electoral Commission shall within fifteen days from

the delivery of the declarations referred to in sub-article (1)

ascertain the number of persons, qualified in accordance with sub-

article (1), who have signed the declarations, and shall within the

said period of fifteen days deposit the said declarations by means of

a note in the registry of the Constitutional Court, stating in the note

the number of valid signatures appearing on the declaration, as well

as the number of invalid signatures and the reason for such

invalidity, together with a statement indicating whether the number

of persons required in accordance with sub-article (1) has signed

the declaration.

(4) The determination by the Electoral Commission of the

number of persons who have validly signed the declaration shall be

final and conclusive.

(5) The Constitutional Court shall, through the Registrar not

later than two days after the deposit referred to in sub-article (3),

cause a notice to be published in the Gazette stating the date when

the declaration has been delivered in the Registry of the said court,

the provisions of the enactments upon the continuance in force

which the question is demanded to be put to a referendum under

this Part, and the number of persons as stated by the Electoral

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Commission to have validly signed the declaration.

(1) The declaration referred to in article 14 shall, together

with the signature of each voter, show a legally valid identification

document number of the voter signing it, his address and the

electoral district wherein he is registered as a voter.

(2) The proposers of the referendum, being not less than five

and not more than ten, shall sign the declaration before all other

persons indicating that they are signing the same as proposers.

(3) The Electoral Commission shall have a right to ascertain

that the persons actually appearing as signatories of the declaration

have in fact signed it, and any signature which does not result to

have been made by the person appearing to have made it shall be

ignored by the Electoral Commission.

(1) Any person registered as a voter for the election of

members of the House of Representatives and the Attorney General

on behalf of the Government may, within three months from the

publication of the notice referred to in article 14, file an application

in the registry of the Constitutional Court, requesting the said court

to declare that the referendum should not take place on the grounds

that -

(a) the number of persons stated by the Electoral

Commission to have validly signed the declaration is

less than that established in article 14(1); or

(b) the provision of the enactment referred to in the

declaration is one to which the provisions of this Part

of this Act do not apply in accordance with article

13(2); or

(c) were the provisions of the enactment referred to in the

declaration not to continue to apply, the law would be

incompatible with any of the provisions of the

Constitution or of the European Convention Act; or

(d) the time fixed in article 20(2) before the declarations

requesting the referendum may be made had not

elapsed when the declarations were filed with the

Electoral Commission.

(2) No person making an application in accordance with sub-

article (1) shall be required to show any personal interest in support

of his action.

(3) Any application filed in accordance with sub-article (2),

shall be served on -

(a)

the Prime Minister;

(b)

the Leader of the Opposition;

(c)

the proposers of the referendum; and

(d)

any other person making an application in accordance

with sub-article (1).

(4) Every person served with an application in accordance with

sub-article (3) shall have a right to file a reply in the registry of the

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Constitutional Court within one month from service, and such

replies shall be served on the persons referred to in sub-article

(3)(a) to (d) within ten days of filing.

(5) For the purpose of this article service shall be effected by

the delivery by registered mail of the document to be served, and

shall be deemed to have been so made two days after posting the

document to be served in an envelope addressed in the case of the

Prime Minister and the Leader of the Opposition at the office of the

Clerk of the House of Representatives, in the case of the proposers

at the address indicated by them in the declaration and in the case

of a person making an application in accordance with sub-article

(1), at the address shown in the application.

(1) As soon as may be after the service of the replies

referred to in article 16(3), the Constitutional Court shall, unless it

considers that such hearing is not required as the applications and

replies are sufficiently clear and do not require further submissions,

fix a date for the hearing of submissions on the applications made

to in accordance with article 16, and shall cause to be published by

the Registrar a notice in the Gazette stating the place, time and date

where the hearing is to be held.

(2) The notice referred to in sub-article (1) shall be published

not later tan ten days before the date of the hearing and not later

than one month after the service of the replies.

(3) On the date of the hearing all the persons served with a

reply shall have a right to be present and make further submissions

in favour or against any application made in accordance with article

16. In such submissions the Constitutional Court shall forbid

anything that is merely a repetition of what is contained in the

applications and the replies.

(4) The Constitutional Court shall hear all submissions on the

day fixed for the hearing, and if there is not sufficient time on that

date it shall adjourn the hearing to the next day, not being a

Saturday, Sunday or a public holiday, and shall so continue hearing

all submissions until all submissions have been made.

(5) After all submissions have been made in accordance with

sub-article (4), the Constitutional Court shall adjourn the hearing of

the applications to a date not later than one month when it shall

deliver its decision.

(6) Where no date has been appointed for the hearing of

submissions the Constitutional Court shall, within the time referred

to in sub-article (2), cause to be published a date being not later

than two months after the date of service of the replies, on which it

shall deliver its decision.

(7) On the date fixed for the delivery of the decision the

Constitutional Court shall decide whether any of the grounds for

not holding of the referendum exists and if no such grounds exist it

shall decree that the referendum may be held. Where the

Constitutional Court decides that grounds exist for not holding the

referendum such referendum shall not be held, and the Electoral

Commission, upon the service of a copy of the judgment upon it,

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shall cause a notice to that effect to be published in the Gazette.

(1) A copy of the decision of the Constitutional Court

shall be delivered personally to the President of Malta by the

Registrar not later than ten days after its delivery, and thereupon

the Registrar shall publish a notice in the Gazette stating the date

when the copy was so delivered to the President.

(2) Where the Constitutional Court has decided that a

referendum may be held, the President shall fix a day for it, being a

date not earlier than three months and not later than six months

after the copy of the decision of the Constitutional Court shall have

been delivered to the President in accordance with sub-article (1),

and the President shall issue a writ in accordance with this Act

accordingly.

(1) Notwithstanding any other provision of this Part, a

referendum under this Part shall not be held if -

(a) the provision upon the repeal of which a referendum

was to be held has, before the date fixed for polling,

been amended or repealed; or

(b) between the handing of the copy of the decision of the

Constitutional Court and the date fixed for polling,

Parliament is dissolved.

(2) Where a referendum is not to be held in accordance with

sub-article (1) the President of Malta shall issue a Proclamation

accordingly.

(1) Where the majority of voters, voting in a referendum

under this Part, approve the proposal regarding the provision of the

enactment the repeal of which is requested, the said provision shall

no longer have effect and the President of Malta shall issue a

Proclamation accordingly

Provided that such proposal shall be deemed not to have

been approved if less than fifty per cent of those entitled to vote in

the referendum plus one, will have cast their vote.

(2) Where the majority of voters have not approved a proposal

as is referred to in sub-article (1), the relative provision of the

enactment shall continue to have effect, and no new declaration as

provided in article 14 with respect to the same provision may be

made before the lapse of two years from the publication of the

result of the referendum.

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PART VI

MISCELLANEOUS AND PENAL PROVISIONS

(1) The Minister responsible for finance may, from time to

time, by warrant under his hand addressed to the Accountant

General, authorise and direct that all such moneys as may be

necessary for meeting any expense required to be incurred in the

carrying out of the provisions of this Act be paid out of the

Consolidated Fund without any further appropriation than this Act.

(2) A statement of the amounts so paid shall, as soon as

practicable, be laid on the Table of the House.

Save as otherwise expressly provided in this Act or in any

other law, any person who contravenes or fails to comply with any

provision of this Act, which he is by this Act required to observe or

comply with, shall be guilty of an offence and shall on conviction

be liable to a fine (multa) of not less than four euro (4) and not

exceeding one hundred and fifteen euro (115).

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