Legal experts disagree on whether the President of the Republic had any choice in signing a pardon to hundreds of people who fraudulently received disability benefits they were not entitled to.

While former judge Giovanni Bonello believes Malta’s constitution makes it clear that granting the pardon was at the “personal prerogative” of the president, law professor Kevin Aquilina disagrees.

Their disagreement highlights how parts of the constitution appear to be open to interpretation while raising important questions about political responsibility.

Times of Malta recently revealed those who had fraudulently claimed disability benefits as part of a racket allegedly masterminded by doctor and former Labour MP Silvio Grixti would receive a presidential pardon.

The pardon was granted on the condition the fraudsters pay back their ill-gotten gains and testify against anyone they knew had been involved in running the scheme.

Many were outraged at the decision, with some criticising new President Myriam Spiteri Debono for signing the pardon.

But how much of a say in the matter did she have?

According to Bonello, more than one might think. The judge said the granting of pardons, referred to as the prerogative of mercy, “is one of few personal prerogatives of the president”, with the cabinet or Prime Minister having “no say in it”.

Describing the debate surrounding the presidential pardon as “mired in relentless constitutional nonsense”, the former judge at the European Court of Human Rights (ECHR) stressed presidents were expected to wield such power “exclusively at their personal discretion”.

He said presidents “do not take advice or receive instructions from any other authority” when issuing pardons. Put simply: “The buck starts there and stops there.”

But Aquilina disagrees, citing an article of the constitution that says the president should act “in accordance with the advice of the cabinet or a minister” or other officials in certain instances.

“In other words, it is cabinet or a cabinet minister... that decides whether to grant a petition requesting an amnesty or a pardon”, the former law faculty dean said.

And while a later article specifically dealing with pardons only mentions the requirement for cabinet advice in instances of the (now abolished) death penalty, it is proof that pardons are otherwise left up to presidents, Bonello argues, Aquilina says the earlier article still applies, with the constitution needing to be “read and interpreted as one document”.

The former dean said while petitions for mercy are first submitted to the president’s office before being forwarded to the relevant government authority, “the president merely signs what is decided”.

However, he noted that should a president sign a bill or pardon, it would signify they had “no reservations – neither of conscience nor of a constitutional nature”.

Bonello said while it was true the president exercises most of her powers on the advice of cabinet, the constitution makes a “clear exception” in cases of mercy, an unusual situation where the judiciary is “extraordinarily, overruled”.

He said if the cabinet were allowed to grant pardons, it would “make a mockery of the separation of powers”, with politicians able to “paralyse, override and nullify the independent and impartial judiciary”.

The former ECHR judge stressed that no authority can compel anyone to act forcibly against their freedom of conscience.

Refusing to sign?

Regardless of who had the final say on the pardon, what would have happened had Spiteri Debono refused to sign it?

According to Bonello, speculation she would have had to resign is “totally mendacious and misleading”.

Stressing the constitution “expressly provides a remedy to this scenario: the removal, not resignation of the president”, Bonello said such a route would only be taken if the president was unable to perform their functions of office or if found guilty of “misbehaviour”.

Presidents ‘do not take advice or receive instructions from any other authority’ when issuing pardons

The judge said that such an action could only take place by parliamentary vote with a two-thirds majority, calling the idea of compulsory resignation a “fairy tale”.

But Aquilina has a different reading, saying if a president feels strongly against a bill or the advice given to them, they can “either resign or, as the practice seems to be evolving, absent themself from official duties,” leaving an acting president to sign instead.

Such a situation occurred in 2022, when Acting President Frank Bezzina signed a controversial IVF reform into law after president George Vella left the country.

Vella was reluctant to sign the bill, with legal experts including Aquilina agreeing at the time he was breaching the constitution every day he left the bill unsigned.