I approach this opinion with some trepidation. Who am I, a mere jobbing lawyer, to interpose myself into a debate between two learned gentlemen, both of whom I consider Titans in their field, though not, perhaps, equally so?

On the other hand, humility and self-effacement have never been hallmarks that I sport, as my many detractors, generally on the trolling side of the metaverse, never fail to remind me.

I will, on balance, not shrink from seeking to become an iceberg in the path of one of the Titan(ic)s.

Prof. Kevin Aquilina has been engaged in a debate with Judge Giovanni Bonello on the thorny subject of whether the president is permitted, on the constitutional plane, to dispense her prerogative of mercy without having to wait for, or rely on, the advice of the prime minister and/or the cabinet.

Bonello holds that the constitution allows, nay mandates, Her Excellency to act on the basis of her own judgement, while Aquilina prefers the view that the president is obliged to act on – and only on – the advice (that is, direction) of the executive, whether in the form of the prime minister or his cabinet is immaterial.

Aquilina cites Article 85 of the constitution, which lays down that the president, in the exercise of her powers (never let it be said that our laws are too woke) shall act in accordance with the advice of the cabinet. He then relies on the exceptions listed in Article 85, where the president acts on her own initiative, pointing out that the prerogative of mercy finds no place in this list.

His position is, then, that since Article 85 says so and doesn’t say otherwise, the prerogative of mercy is to be exercised exclusively on the say-so of the relevant politicians, those who have found themselves voted into government by the famous 50%+1 of the electorate.

Aquilina tells us that since we received our constitution from the British, any interpretation thereof should take on hues that reflect this ancestry. Now, I have been accused of being an Anglophile of unforgivable depth, so this should please me no end. Leaving aside that my anglophilism (is that even a word?) was fatally wounded when they believed the lying Boris Johnson, Nigel Farage and Jacob Rees-Mogg and voted for Brexit, the interpretation pleases me not at all.

The president may take counsel from whomsoever she likes- Andrew Borg Cardona

The thing is, the manner in which the constitution of the United Kingdom works depends on the fine checks and balances that obtain there, and this in the context of an unwritten constitution. The mechanism is oiled and kept running by a healthy respect for the rule of law and general norms of decent behaviour that respect the conventions.

The reality is that the oil has congealed, and they need a pretty deep overhaul, but that’s not my point.

My point, echoing Bonello’s, is that when, in Article 93, the constitution does not make any reference to the president acting on anything other than her own initiative when dispensing mercy, it is doing so with virtue aforethought.

It is, in fact, making it clear that, at least when it comes to the prerogative of mercy, the person who has the confidence of no less than two-thirds of the House is the one who is to be trusted to make a proper and deliberate decision on the course of action that presents itself.

The constitution does not tell us that, on exercising this deliberate judgement, the president is to rely on the direction of mere politicians. She may take their advice, she may take counsel from whomsoever she likes but it is her decision and hers alone.

In all humility, I venture the thought that this is far more conducive to good governance and a proper respect for the rule of law than leaving the thing in the hands of politicians, whose fortitude in standing up to the temptation to do what is electorally attractive is notoriously weak.

It’s not as if we haven’t had this shown to us in stark relief in recent weeks.

Andrew Borg Cardona is a lawyer with a particular interest in employment law.

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

Support Us