The constitutional provision establishing the presidential prerogative of mercy has been distressed by two conflicting interpretations. One, favoured by Prof. Kevin Aquilina, believes that the presidential prerogative has nothing presidential at all about it but is actually a political imposition on Her Excellency the Robot President.

The other holds that it is a real prerogative power entrusted to the president to act in accordance with her own deliberate judgement, without external political interference.

Let’s firstly have a look at the practical consequences deriving from each of these two conflicting ‘interpretations’.

Aquilina’s vision is that the constitution wants the independent and impartial criminal justice system to be nothing but an absolute charade.

He wants the constitution to mean that a caucus of partisan politicians should have the absolute and unlimited power to frustrate each and every criminal prosecution, without giving any reason and without their partisan machinations being subject to any right of revision or appeal.

It means that a pack of partisan politicians also has the unconditional and unfettered power to nullify, cripple or show the middle finger to any final judgment of the highest independent and impartial criminal courts, again without even having to give a reason.

This lethal misinterpretation means that, in practice, the constitution wants a politically partisan cabinet to be Malta’s supreme court of criminal appeal and that the independent and impartial criminal courts are just laughable and impotent shams. Requiem for the rule of law and for the separation of powers. Just for you who are applauding, to realise the extent of this folly.

The opposite interpretation: the president exercises the prerogative of clemency on her own personal judgement and responsibility, as the constitution isolates her from political and partisan arm-twisting and pressures.

The constitution protects the president’s independent judgement with two rings of steel, making the dictates of her informed conscience virtually unchallengeable and impregnable. Firstly, the constitution fortifies her independent judgement by establishing that the one and only sanction against her is a motion to remove her from office – but by two-thirds majority vote in the House.

Not satisfied with this daunting defence of the president’s autonomous independence, the supreme law built a second bastion around her to isolate her from partisan political pressure: even when the constitution requires that the president acts on the advice of others, whether she does or does not “shall not be enquired into by any court” (Article 85.2).

To ensure that the president suffers no untoward interference and only follows the informed principles of her conscience, the constitution has erected this double and formidable system of defence. So much for the sorry phantom loudspeaker the uninformed want us to believe she is. So much for the nonsense ‘she either signs or she resigns’, thankfully not heard of lately.

Kevin Aquilina’s vision is that the constitution wants the independent and impartial criminal justice system to be nothing but an absolute charade- Giovanni Bonello

The presidency is regulated by two separate and autonomous articles in the constitution. One, Article 85, deals with the president’s ordinary “functions”. The other, Article 93, deals with the president’s extraordinary “prerogative”. Aquilina fails to explain why he believes the president’s prerogative should be regulated by an irrelevant article which only deals with her functions and never even mentions her prerogative, disregarding the clear letter and history of the very article which specifically regulates the president’s prerogative.

And the article that expressly regulates the president’s prerogative couldn’t be clearer and more specific. It first dictates that the president has the power to grant pardons – not the cabinet through the president as a parrot mouthpiece. It’s the president’s express power. That is the rule.

And then it mentions the one and only exception: if the death penalty has been passed, the president has to act in consultation with the cabinet. It’s only if the accused has been condemned to death that the president needs to act in tandem with the cabinet. In all other pardons or amnesties she acts without any direction from the cabinet. Elementary, my dear, elementary.

In Malta, the prerogative of mercy has always and invariably been applied in this manner – and the unchallenged adherence to a rule makes that norm a binding ‘constitutional convention’. The Royal Instructions before 1961 expressly forbad the head of state to act on any advice except on the dictates of his own deliberate judgement. The 1961 constitution codified these identical doctrines in Articles 31 and 116.

The independence constitution repeated exactly the same directives in Article 93: clemency is always the personal prerogative of the president, with the sole exception that, if pleaded by a person condemned to death, then, and only then, the president acts together with cabinet.

Aquilina believes that the mother of all arguments is: our constitution was granted by the British, so we are bound to take inspiration from the mother country and are somehow obliged to mimic everything our former owners do.

Let’s work through this so-called argument, demeaning and neo-colonial though it might sound to many. British law has only lately been amended and the sovereign no longer exercises that function as a prerogative on his own deliberate judgement, as he had done for centuries. Today, he exercises the power to pardon on the advice of the Secretary of State for Justice in virtue of legislation that was expressly passed by the British parliament, I believe, in the 1990s.

But our constitution, however British some of its roots may arguably be, came into force in 1964 – 60 years ago. Is it possible Prof. Aquilina believes that even a change made by the British in a British law many years after independence is of any relevance at all to our supreme law or should in any way contaminate this discussion?

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

Independent journalism costs money. Support Times of Malta for the price of a coffee.

Support Us