We recently followed a public debate on whether the pardon is a personal prerogative of the president or whether it is exercised by the executive branch of the State through the person of the president.
There are two antithetical positions.
One school of thought believes that the president exercises this prerogative personally, whereas the other believes that it is exercised only upon the advice of the executive. Two provisions of the constitutional document are invoked in this debate, namely articles 85 and 93.
This debate has brought to the surface the tensions underlying our constitutional set-up that exist between the strictly positivist-hermeneutical and the “historicist” approaches to interpreting the constitutional document.
The positivist approach looks at the text and interprets the wording. The historicist approach looks at the historical context of the legal text.
On a deeper level, there are at least two historicist sub-approaches. Some argue that “we should do as the British do”, since our constitution is based on the Westminster model. Others argue that there is an underlying continuity hidden beneath the surface of the constitutional text – the political aspect of the constitution.
In this particular debate, Judge Giovanni Bonello took the latter stance, arguing that the prerogative to grant pardons had been exercised by the British governors and by the grandmasters before them.
The argument that something has to be done in a particular way because that’s how the British do it should be handled with caution. The reasoning was explained many years ago by one of our foremost legal luminaries, Sir Adriano Dingli, on March 27, 1878.
During Sitting No. 54, the Council of Government debated the council’s reliance on Erskine May for “parliamentary” procedure. Sir Adriano expressed what I consider to be a legal reasoning that is still valid today:
‘We cannot [...] say that, because the House of Commons has certain powers, this Council also must be held to have those powers. [...] We discussed the subject last year at great length, and I believe the result unanimously arrived at was that not all the powers which are exercised by the House of Commons can be exercised by Colonial Assemblies, and that those Assemblies cannot go beyond the letter of the enactment by which they have been constituted.”
Neither the governors nor grandmasters trusted the Maltese judiciary- Mark Sammut Sassi
Sir Adriano rightly argued that the Maltese could emulate the British only in so far as the constitution of Malta allowed them to. In other words, if the ‘letter of the enactment’ (the constitutional document of Malta) does not reflect British practice, then the Maltese are bound by the constitutional document of Malta, not by British practice. I think this argument is as valid today as it was in Sir Adriano’s day.
With regard to the other historicist approach – the continuity between what the governors and the grandmasters did and what the Maltese should do – this is, I suggest, the political underside of constitutional law. It is my view that we should see what present-day circumstances require and disentangle ourselves from our colonial past.
Needless to say, neither the governors nor grandmasters trusted the Maltese judiciary (an attitude we seem to see today coming from the executive branch of the State). Both the governors and the grandmasters before them wanted to have the last word in criminal matters. At the same time, it looks like present-day Maltese, who live under the Republic of Malta, want to see more checks and balances. It seems to me that, although the concerns of the British and of the Knights differed from those of Maltese citizens today, the same mechanism can be used to address those concerns.
When all is said and done, however, the argument that things should be done a certain way because the British do it in that certain way is an argument that, 60 years after the attainment of Independence, should no longer hold any validity in the eyes of the Maltese.
Mark Sammut Sassi is an author and lawyer.