I have read with great interest Judge Giovanni Bonello’s article (May 21) entitled ‘Misunderstanding the constitution: the prerogative of mercy’. I beg to differ with his opinion.
According to the constitution, the president grants a pardon not on his/her own motion but, in terms of article 85(1), on “the advice of the cabinet or a minister acting under the general authority of the cabinet”.
It is the cabinet, (or a cabinet minister acting under delegated powers from cabinet) that decides whether to grant a petition requesting an amnesty or a pardon.
The president merely signs what is decided by cabinet (or a cabinet minister) even though petitions for mercy are initially submitted to the President’s Office and then forwarded by that office to the justice ministry that consults the attorney general, the police and other government authorities.
As the granting of mercy is not a presidential but a cabinet or ministerial decision, the president is not free to substitute his/her own opinion to the advice received but is constitutionally bound therewith. This is the same position as when the president receives a bill for an Act of Parliament from the House of Representatives.
If the president feels strongly against the bill or advice on the petition for mercy, then s/he can either resign or, as the practice seems to be evolving, absent him/herself from official duties for an acting president to sign instead (provided the acting president agrees to sign).
It all depends on how serious the president considers the matter to be if s/he elects to resign or absent him/herself from official duties.
If the president signs the petition for mercy or a bill to become an Act of Parliament, that signature signifies that s/he has no reservations thereupon, neither of conscience nor of a constitutional nature (in view of the oath of office subscribed to by the president).
In the oath of office, the president declares to faithfully execute the office of president and “to the best of my ability preserve, protect and defend the constitution of Malta. (So help me God)”.
These words are not without meaning but are loaded with constitutional significance, including the invocatio Dei (invocation of God) through which the office holder binds his/her conscience in terms of his/her religious belief or opinion.
If a solemn affirmation, instead of an oath, is administered in the case of agnostics, atheists or believers who are uncomfortable with binding their conscience and subscribing to an oath that is witnessed by the deity of his/her religious conviction (such as the quakers), the president is still bound in conscience and also constitutionally to carry out presidential duties.
The president merely signs what is decided by cabinet- Kevin Aquilina
Due to the severity and extraordinary nature of the punishment, pardons involving the death penalty are advised only by cabinet rather than by the justice minister.
Article 93(2) of the constitution states that, in the case of the death penalty (which no longer exists in Malta as it was removed both from the criminal code and the Armed Forces of Malta Act), it should be cabinet, and not a cabinet minister, who advises the president.
This decision, therefore, must be a collective cabinet decision and not an individual ministerial decision.
This constitutional provision in section 93 must also be read in the light of section 85(1) as the constitution: like all other laws, the constitution must be read and interpreted as one document.
Article 93(2)(b) provides that: “The said minister shall send such written report and information (if any) to the cabinet, and the cabinet shall advise the president whether he should grant the offender a pardon or respite in the exercise of the powers conferred on him by this article.”
This text applies only to the case of the death penalty. But in other lesser forms of punishment, cabinet delegates, normally, to the justice minister, the giving of advice to the president. But there are certain pardons that cabinet has reserved the decision unto itself (for instance, drug trafficking) so that in those exceptional cases it is cabinet collectively that advises the president thereupon.
The constitutional practice is that each time a new cabinet comes into office, this act of delegation is approved at cabinet level authorising the justice minister to act on its behalf while reserving the most serious crimes for its own deliberation.
When it is cabinet that decides, it would normally be the prime minister who advises the president. This constitutional practice has been applied since Malta gained its independence constitution in 1964 and all Maltese governments have complied therewith.
Our constitution follows the British model.
In the UK, the monarch enjoys a prerogative of mercy. But even in the UK, there is a constitutional convention that it is a cabinet minister who advises the monarch on the exercise of mercy, and it is not the monarch who decides unadvised upon that matter, prerogative notwithstanding. In the Maltese case, the British constitutional convention is inscribed in article 85(1) of the constitution.
That said, I agree that this constitutional provision should be looked at afresh, especially in the light of the separation of powers and rule of law doctrines to ensure that court judgments are not upset capriciously or vexatiously.
Also, reversal of court sentences should happen only where there is a case of a miscarriage of justice and in other very exceptionally and properly defined instances that are legislatively clearly listed to ensure that cabinet does not abuse its constitutional power or somehow attempt thereby to subvert the independence of the judicial organ of the State.
Kevin Aquilina is professor of law, Faculty of Laws, University of Malta.