Our zeal for justice risks damaging our rights
In the current discussion about "presidential pardons", the dominant assumption in public discussion has been that such pardons are a way to circumvent our legal system. The law courts condemn someone and bang the door shut; the presidential pardon lets that person out of the window.
This assumption is simply mistaken. The presidential pardon is a critical, necessary element of our legal system. It has been enshrined in the Constitution since Independence.
Its proper name, "the prerogative of mercy", indicates its function. It safeguards equity in the administration of justice. It protects all of us. Without it, there would be aspects of our legal system that would be inhumane.
Every humane legal system has a mechanism to enable the prerogative of mercy (and equity) to be exercised. In the Maltese case, it operates by having petitioners request a presidential pardon (which can be conditional). The President acts on the advice of the Minister of Justice, who, in turn, consults the Attorney General (whose final advice carries decisive weight), the Commissioner of Police and the Director of Prisons.
Ah, but what about the case notoriously cited as a precedent by Minister Jesmond Mugliette? Where is the need for mercy if someone has been found guilty of taking a bribe?
This precedent, which some commentators have pronounced a bad one even while they demanded to know more about it, is the perfect advertisement for the need of the prerogative of mercy.
The law stipulates that any public official found guilty of accepting any bribe is to be perpetually interdicted from holding any public employment and any public office. (I am not sure - for only two of the three lawyers I consulted agreed on this - if the right to vote is also lost.)
There are three key phrases here: Perpetual (that is, for life); any public employment or office; any bribe (whether 50c or Lm5,000). The law courts have no discretion in the application of this sentence. Once guilt is determined, this punishment kicks in automatically. (In fact, the courts may be asked, after a reasonable time has elapsed, to review and reduce this automatic sentence, should there be clear evidence of reform in the guilty party.)
Any bribe? The precedent cited by Minister Mugliette concerns an individual who, in stricken circumstances, took Lm4 (yes, four) to falsify a certificate. The individual was under 25 at the time. Are we a society that bans such individuals for a lifetime for so little?
In the precedent case, the prerogative of mercy was exercised well. But was the system not being abused of by the two ADT officials in whose case Minister Mugliette has found himself embroiled? They are guilty of taking several bribes in very different circumstances. Why ask for a pardon? Why be granted it?
They asked, in part, because it is their civil right to ask. In fact, they were not granted a pardon. However, neither were they refused: They were told they had other avenues to pursue, first (such as asking the courts to review their case after a reasonable time has elapsed). Why were they not simply told to get lost, in suitably presidential language?
Because we are a society that recognises the possibility of personal reform. What they did was grave. But both former officials are still young men. Do those who argue that their general and perpetual ban from public employment should never, ever, be modified really mean what they say?
Suppose one of them shows no sign of reform but the other follows a university course and, a few years down the road, qualifies as a social worker or a nurse. Should the second person be treated like the first? Should the state refuse to countenance the idea that he might be employed in a different department of government?
Leaving open the prerogative of mercy in this case, as in all others, is not a statement about the nature of this or that government. It is a statement about who we are as a society.
By all means let us discuss the right to seek mercy. But if the public discussion is so emotive and uninformed as it has been so far, we risk making it difficult for ministers of justice to recommend mercy. In practice, the recommendation is based on legal opinion tempered by the value of equity as endorsed by society. If we become a society that bays for blood, we would be weakening the foundation of one of our civil rights.