Concerns have been raised about the way Presidential pardons are granted now that the very person entrusted with such responsibility, the Prime Minister, could have a conflict of interest.

Such a scenario, which was unlikely to have been imagined when the Constitution was being drafted, has become reality in view of the arrest of the Prime Minister’s chief of staff Keith Schembri in connection with the Daphne Caruana Galizia murder.

• Can the people have peace of mind that the Prime Minister had no such conflict when deciding on the Presidential pardon to the alleged middleman in the murder Melvin Theuma?
• Is the Prime Minister in a position to consider giving immunity to prime suspect Yorgen Fenech?
• Should the Prime Minister have given the Presidential pardon to Vince Muscat, one of the three suspects charged with Ms Caruana Galizia’s murder?

These are the questions Times of Malta posed to Prof. Kevin Aquilina, the head of the Department of Media, Communications and Technology Law at the University of Malta.

President has no choice but to follow PM's advice

Prof. Aquilina pointed out that, first of all, the President has no say on the matter as the head of State must follow the Prime Minister’s advice.  

“According to section 93 of the Constitution, the prerogative of mercy is granted by the President of Malta. But according to section 85(1) of the Constitution, in ‘the exercise of his functions the President shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet’.

"Hence, it is lawful for the Prime Minister to advice the President on prerogatives of mercy. The President is constitutionally bound to accept the Prime Minister’s advice – whether he likes it or not – and is not empowered to remit back the Prime Minister’s advice to the latter for reconsideration. Hence the decision-making authority is the Prime Minister even though the pardon is signed by the President.”

No conflict as long as PM sticks to AG's advice 

Though not privy to the details of this investigation, Prof. Aquilina said there would be no concerns of a potential conflict of interest as long as the Prime Minister followed the Attorney General’s advice to the letter.

“If the Prime Minister acted, in turn, on the written advice of the Attorney General without changing one iota of the AG’s advice, then as a matter of fact what the Prime Minister has done is to endorse lock, stock, and barrel the AG’s advice.

"In this case, the Prime Minister’s endorsement works out to be more of a formality which he has to comply with so that the prerogative of mercy can be granted.

"Normally this is what usually happens: the politician acts on the advice of the AG. So I see no problem here with subjective or objective impartiality once the Prime Minister is limiting himself to rubber-stamp the AG’s advice,” he said.

But conflict can arise if PM decides otherwise

However, matters could get messy if the Prime Minister were not to stick to the AG’s advice completely. In such case, the matter could have to be referred to the Justice Minister.

“If, however, the Prime Minister were to totally or partially disregard the AG’s advice and proffer a different one to the President that is at nuance from that of the AG, then this would no longer be a matter of complying with the formalities of the written law but the Prime Minister would be deciding the matter himself even though he might have taken in consideration the AG’s advice.

"Should the Prime Minister have a conflict of interest or a bias in this case, he should not give such advice himself but it could be given by the minister responsible for justice,” he said.

“Although the Constitution in section 93 does not prohibit expressly conflicts of interest by the decision-maker (in this case the Prime Minister), by reading through the provisions of the Constitution and of ordinary law, it is clear that decision-makers should never decide on any matter when they have a conflict of interest or bias, whether real or apparent.

"This is because there is a general principle of Maltese Law prohibiting conflicts of interest apart of course of the principle of natural justice that no person should be a judge in his/her own case and the wider principles emanating from the right to a fair trial as contained in Chapter IV of the Constitution, the European Convention on Human Rights and in European Union Law,” Prof. Aquilina concluded.

A Constitutional loophole

Times of Malta also sought the advice of former European Court of Human Rights Judge Giovanni Bonello who said that these concerns have exposed a “lacuna” in the Constitution.

“If the immunity from prosecution is being recommended by somebody close to the person suspected of or charged with being a criminal wrongdoer, it starts not to make sense. The Constitution never envisaged such possibility,” Dr Bonello said.