What does the constitution say about presidential pardons, and what past cases have there been?

Yesterday morning, Prime Minister Joseph Muscat announced that a person arrested last Thursday as part of an investigation into a money laundering ring had asked for blanket immunity in return for information on the assassination of Daphne Caruana Galizia.

Muscat told journalists that after consulting with investigators and the attorney general, he had signed a letter promising a presidential pardon to the alleged middleman, as long as his testimony and evidence stand up in court, leading to the eventual prosecution of the mastermind behind the murder.

Muscat noted that he had taken the decision on his own, and would shoulder the political responsibility.

It is not the first time that a prime minister has stepped in to offer a pardon to someone in a high-profile case, and in doing so he is in essence taking the decision on behalf of the justice minister and the rest of the Cabinet – a decision enshrined in Malta’s constitution.

What does the constitution say about the presidential pardon and how does it work?

The right to grant a presidential pardon, known as the prerogative of mercy, is enshrined in Article 93 of the Constitution of Malta.

This article outlines four circumstances where the President can grant a pardon. These are namely when a person is involved in or convicted of any offence, where a free pardon or a pardon subject to lawful conditions can be granted; when a respite can be given, either indefinitely or for a specified period, of the execution of any sentence for any office; when a less severe form of punishment can be substituted for any punishment imposed on any person for any offence; or to reduce or remove completely a punishment, although this can only be granted if serious doubts about the person’s guilt are raised.

In effect, it is the President of the Republic who must sign and grant a pardon, but in reality this is induced by the judgement of the justice minister or the whole Cabinet.

In Tuesday’s case, it is of note that Muscat stipulated that the Cabinet had authorised him to take such decisions alone – and, in fact, he said that the decision had been taken by him and without discussion with the Cabinet.

The procedure itself is not stipulated in the constitution, but is generally based on the practice whereby petition is addressed and presented to the President, who then consults the justice minister. The minister can then discuss the issue with the attorney general, police commissioner, or the Cabinet, as he sees fit.

Have there been other cases of presidential pardons in the past?

Yes – quite a few, in fact. Separate parliamentary questions reveal that 339 pardons were granted between 2003 and 2008, and 43 were granted between 2008 and 2012.

Some, however, remain more high-profile than other. That of Joseph Fenech, otherwise known as Żeppi l-Ħafi, is one of those. He was pardoned in May 1996 by then President Ugo Mifsud Bonnici on the recommendation of then Prime Minister Eddie Fenech Adami for his alleged involvement in the attempted murder of Fenech Adami’s personal assistant, Richard Cachia Caruana, and in return for his testimony in the case.

A more recent case is that of oil trader George Farrugia, who was offered a pardon by then Prime Minister Lawrence Gonzi in exchange for his testimony on alleged kickbacks paid to top Enemalta officials by oil suppliers.

In 2015, former Enemalta chief projects officer Ray Ferris was acquitted of bribery charges.

Other cases brought about as a result of pardons in the past include Anna Cassar, a mother who was given a three-month prison sentence for denying her estranged husband access to her son, and Brazilian Francesco De Assis Queiroz, who was caught with three kilograms of cocaine at the airport, but subsequently fell ill with Hepatitis C.

What about this case?

In this case, Prime Minister Muscat has promised a conditional pardon to the alleged middleman.

The condition imposed here is that he must provide any evidence pertaining to the journalist’s assassination as well as any other case.

“If the person collaborates and the information provided is sufficient to prosecute the mastermind of this crime, they will receive a presidential pardon,” Muscat told journalists yesterday.