The electrifying debate between Giovanni Bonello and Kevin Aquilina – both of whom I hugely respect and admire – is a technical debate taking place on a lay publication before a lay public.

It’s risky to have such debates in a “public space”. Then again, Malta lacks economies of scale in academia. The “public square” (which is what newspapers symbolise) thus become the only forum available for academic or technical debates – a forum shackled by many constraints, including word count.

The debate is whether the President of the Republic exercises the prerogative of pardon personally (Bonello) or on the advice of the executive branch of the state (Aquilina and many others). I will argue, quite unorthodoxly, I presume, that the former position is more attractive than the latter.

What is the ‘state’?

This question is implied in the debate.

The state is the only politico-legal authority in a modern country. This authority is exercised through the state’s three branches: the legislative (law-making), the executive (execution of the laws), the judiciary (interpretation of laws).

How does the prerogative of pardon feature in this understanding of the state?

Who is the president?

Previously, criminal cases were referred to as Regina/Rex v. X. Now it’s Ir-Repubblika ta’ Malta v. X. Tellingly, it’s not Il-President v. X.

But when a law is passed by the House of Representatives (of the People), it’s the president who signs it into force.

When a piece of land is expropriated, it’s under the president’s authority.

So, constitutionally speaking, who is the president?

The successor to the governor and, therefore, of the crown? If this is indeed the case, then why are criminal cases prosecuted on behalf of the republic and not the president?

As a matter of fact, for some Commonwealth scholars, the British Crown is the embodiment of the state. So is the president the embodiment of the Maltese state?

The problem for us Maltese is that the British conception of “state” – at least according to the literature on the subject – is sketchy, at best. To compound matters, it can be convincingly argued that the DNA of the concept of state in Malta is partly drawn from British constitutional genes and partly from genes that, while not autochthonous, were local, having reflected for some 270 years the constitutional relationship between the geographically scattered Order of St John and Malta’s population, which lived around the Order’s world headquarters.

Is the state in Malta just the sum total of its branches? Or does the state have powers that are not exercised and expressed through its branches?

Are there residual powers that exist outside the state’s branches and belong to the “state-in-its-bare-form”? A residue that goes back to the Middle Ages, represented in Britain by the crown and in our collective imaginaire by the memory of the grand masters.

Does the president represent the “state in-its-bare-form”? Is the prerogative of pardon a residual power? This seems to be Bonello’s position. The other position is that this prerogative belongs to the executive branch – the government of the day – and the president merely carries out its will of the executive branch.

All this leads to an obvious question: Where does sovereignty rest? If the people elect the legislative branch (from which the executive branch is then chosen), does sovereignty rest with the legislative branch? Does sovereignty rest with the constitution? Is the president the embodiment or an implement of the constitution? Is the president, as possible successor to the crown, the embodiment and implement of the nation’s sovereignty?

The law thus rises from the grave of the cold, stiff text to become a living organism- Mark Sammut Sassi

Is the state the sum total of its three branches plus the president?

Whereas the British monarch has, or used to have, a God-given right to have sovereignty vested in him/her (Dieu et mon droit), where do the powers of the President of Malta in, say, the proviso to article 85 of the constitution come from? Are they derived from the delegation made by the people to their representatives? Or is there another – perhaps extra-legal – origin of the president’s powers under that proviso? Is it God? Is it someone or something else? Is it the nation? Is the nation a sort of deification of the collective (as proposed by the German philosopher JG Fichte)?

Living tree’

A state’s constitution is widely considered a “living tree”. Over time, the words of the law remain the same, but the spirit of the law mutates reflecting changes in society.

Now, it is true that, 60 years ago, our Independence Constitution was inspired by the Westminster model. But six decades have since passed. Has the spirit of our constitution mutated?

The Westminster model was imposed on each British colony. In our case, the legacy of the regime previous to the colonial one – the Knights’ State – lingered on, whether legally or psychologically. The grand master (and after him, the governors) ruled over a paternalistic state.

The Glorious Revolution in England was the uprising of the sons against the father-king to rule over the motherland. No such Oedipal revolution ever took place in Malta but we got a constitution based on that paradigm-shifting historical episode. Deep down, many Maltese still long for a paternalistic state. And they look up to the president as the nation’s parent figure. One feels compelled to conclude that the constitutional text may say one thing but the way constitutional practice has developed – the “living tree” phenomenon – promotes a completely different interpretation of the text.

On the basis of this approach, Bonello would be correct to refer to the spirit of the constitutional text as reflecting a continuum in the people’s “emotional reality” (a term I borrow from Victor Mallia-Milanes’s essay ‘The Genesis of Maltese Nationalism’). This approach would justify the argument that the prerogative of pardon is exercised by the president outside the three branches of the state, as the “state-in-its-bare-form”. (Not his words but my reading of them.)

Being a “mirror reflecting the national soul” (to borrow the words of one-time chief justice of South Africa, Ismail Mohammed), our constitution, though British-given, has mutated by drawing on its non-British DNA.

This is why Bonello’s position is extraordinarily alluring: it allows culture to determine the interpretation of the law. The law thus rises from the grave of the cold, stiff text to become a living organism that responds flexibly to its cultural environment.

At times, I get the feeling that the Maltese concept of the “state” (and its constitution) is intuited rather than articulated. Particularly thanks to the insight offered by Anthony Borg Barthet in his letter (June, 11), I conclude that Bonello is among the first to apply the implied continuum between the grand masters, the governors and post-independence Malta to the interpretation of the 1964 constitution and the state it gives rise to.

Time to say goodbye

Most of the above are just questions and feelers, attempts at framing a constitutional theory for the Maltese state. They’re mostly works in progress.

More importantly, however, it’s high time this country cut itself loose from Britain’s constitutional “mess” (to borrow the term used in Anthony King’s The British Constitution, p. 345).

A new constitution for Malta could possibly no longer be inspired by Westminster but by Paris or Washington DC.

Mark Sammut Sassi is a lawyer and author.