Many must be aware of the debate about the recent jackpot of presidential pardons doled out to hundreds of health benefit fraudsters who cheated taxpayers of millions through the lucrative complicity of state actors.

It is my publicly expressed view that the president acts in her personal capacity and on her own responsibility in exercising her ‘prerogative of mercy’ granting (or refusing) pardons. 

In this area, the constitution makes it clear that the president has no constitutional duty to follow the advice of cabinet. On the contrary, she has the duty to follow exclusively her own deliberate judgement, to impose on the state the dictates of her conscience.

In the traditional view, the president must only rubberstamp what the politicians order her to do. I believe, however, that a correct reading of the constitution, of the speciality of the prerogative of mercy and of its historical evolution, should delete permanently the concept of a robot as a president, elected to the highest office of the state specifically to endure push-button presidential passivity.

The constitution, today, gives no role to the cabinet in the matter of presidential pardons, an authority conferred exclusively on the president and referred to by the constitution as her “prerogative of mercy”.

Our constitution deals with the president in two distinct articles. One, Article 85, regulates the everyday “functions” of the president and specifies those she exercises on the advice of cabinet and those she does not perform on the advice of cabinet.

Then, in a completely isolated and different article, the constitution passes on to deal with a different matter, the president’s “prerogative of mercy”. Not her function, but her prerogative (Article 93). Presidential clemency is not included with the ordinary functions regulated by Article 85, but is autonomously controlled by a distinct provision, Article 93.

It is Article 93 that gives authority to the head of state to grant or withhold pardons, and no other article. Article 85 deals with other matters altogether and is irrelevant to how a president grants pardons. Excuse me if I think poorly of a reading of presidential pardons that ignores what the article specifically regulating presidential pardons dictates (Article 93) and relies instead on an article that has nothing to do with presidential pardons (Article 85).

Let us examine Article 93 which alone and specifically regulates presidential pardons. It is headed “Prerogative of mercy”. This is the only occasion in the whole constitution where the text makes use of the extreme term “prerogative”. This already underscores that the president exercises that faculty personally.

Prerogative has a very precise dictionary meaning. It is a personal discretionary authority – “a right or privilege exclusive to a particular individual”. A ‘prerogative’ available only if others allow it is simply a laughable contradiction in terms.

The very text of Article 93 proves even more explicit: “The President shall have the power to… pardon etc.” Not “The President on the advice of Cabinet”. 

“Shall have the power” has been deranged to signify the very opposite of what the constitution clearly wanted it to mean.  It now means “The President shall have the duty to obey what the Cabinet dictates”. That is how absurdly the prerogative of the president has been demeaned.

The very structure of Article 93, which alone regulates presidential pardons, further confirms this. Following best drafting practice, the article first enunciates the rule, then lists the exceptions. The rule is unequivocal: the president has the prerogative power to pardon – no cabinet mentioned. Then comes the exception – but, in cases of capital punishment (abolished in 2000), she has (or had) to act in concert with the cabinet. In all other pardons, the rule prevails – she acts in the exercise of her own deliberate judgement.

If the prerogative were to be exercised by politicians, this would make a parody of the separation of powers- Giovanni Bonello

Never does the constitution refer to the prerogative of mercy as a function but as a power of the president. Functions, according to Article 85, can be shared with cabinet, prerogatives are not.

The “prerogative of mercy” has, in our legal system, for centuries been the personal incumbency of heads of state – grand masters, governors etc.

Up to the present Independence Constitution, no one doubted that the prerogative lay in the personal discretion of the head of state. It was not regulated by ordinary law, but by “Royal Instructions” which specified explicitly:

“The Governor shall not pardon or reprieve any such offender unless it shall appear to him expedient to do so upon receiving the advice of the Executive Council thereon, but in all such cases he is to decide whether to extend or withhold a pardon or reprieve according to his own deliberate judgement, whether the members of the Executive Council concur therein or otherwise.” The Independence Constitution transposed this rule into Article 93.

If the prerogative were to be exercised by politicians, this would make a parody of the separation of powers. It would mean that a political executive would have the unfettered authority to paralyse, override and nullify any criminal prosecution and any judgement by the independent and impartial judiciary.

The traditional misreading of presidential pardons has only one – terrifying – consequence. It means that all criminal prosecutions, all judgments of the criminal courts, can be tampered with and nullified by the politicians in cabinet. Scaringly lethal, no?

The constitution has, wisely, delegated this extraordinary derogation of the separation of powers, not to transient politicians, but to the holder of an office that enjoys the confidence of two-thirds of the representatives of the people.

The president has every right to consult others before deciding on pardons. But the ultimate responsibility for it remains her personal prerogative, and its abuse remains her personal stain.

I am aware that states with different legal DNA dispense clemency differently.  Here we are only concerned with how this ancient institute has evolved in Malta and how our constitution regulates it today.

Conclusion. There are only two possibilities but the bottom line is identical. My reading: the president pardons in her own deliberate judgement, or, the traditional (mis)reading: the president follows the advice of cabinet and, in default faces the possibility of removal from office but by a two-thirds-majority vote in parliament.

In either scenario, she only grants pardons if she agrees. If she doesn’t, she is entirely at liberty not to consent. If she signs, she assumes full responsibility for the consequences of that signature.

Giovanni Bonello is a former judge at the European Court of Human Rights.