George and Alfred Degiorgio have failed to annul a decision taken by the President denying them a pardon, with the court declaring that such a decision, taken on the advice of Cabinet, was not subject to judicial review.
This was the outcome of a judgment delivered in civil proceedings filed by the brothers who are currently awaiting trial for their alleged involvement as hitmen in the murder of Daphne Caruana Galizia.
Both requested a presidential pardon in exchange for first-hand information they claimed to have about the alleged involvement of two former government ministers in “very serious crimes”.
But their requests were rejected by the President acting upon a recommendation by Cabinet which, in turn, acted upon advice received from the Attorney General and the Police Commissioner.
The Degiorgios claimed that that decision was taken without anyone having ever heard what they had to say, voicing concern that “no one in Malta” seemed willing to listen to them, although they openly and consistently claimed to possess “true, reliable, credible and direct evidence”.
They subsequently filed two separate actions.
In the first one, they claimed that their fundamental right to a fair hearing was breached.
The second action was to review the President’s decision as an administrative action taken upon advice that was in violation of the principles of natural justice.
This case was filed against the President of Malta, the Prime Minister, the Cabinet, the Police Commissioner, the Attorney General, the State Advocate and the Justice Minister.
When delivering judgment, the court observed that an “administrative act” in terms of article 469A(2) of the Code of Organisation and Civil Procedure included “the issuing by a public authority of any order, licence, permit, warrant, decision or a refusal to any demand of a claimant...”.
The advice given to Cabinet certainly did not fall within the parameters of this definition, although it was “extensive” - and “perhaps too extensive,” remarked Mr Justice Grazio Mercieca, presiding over the First Hall, Civil Court.
Advice was not a decision and, therefore, the applicants’ claims against the AG, the State Advocate and the Police Commissioner were unfounded.
The Prime Minister in his personal capacity had nothing to do with the matter and Cabinet’s recommendation to the President was not an administrative act in terms of law, said the court.
Although the President acted upon that recommendation, the final decision was “formally” his, not the Cabinet’s.
However, the law itself granted immunity to the President when acting in the functions of his office and, therefore, the decision denying the pardon was not subject to judicial review.
The legislator even went a step further.
The Constitution declared that whenever the President was required to act “in accordance with the advice of any person or authority” such advice “shall not be enquired into in any court”.
Therefore, while declaring all the parties, except for the State Advocate, as non-suited, the court concluded that Degiorgios’ claims could not be upheld since neither the President’s decision nor the relative advice were reviewable in court.
Lawyers Stefano Filletti and Maurice Meli represented the President.