I wasn’t surprised by the feedback I received on the current presidential pardons controversy. The root cause of the unease seems to be not so much the pardons themselves, but the secrecy which enshrouds the procedure. People are not upset at the pardons as much as they are by the fact that the pardons have been concealed from them.

Nobody knew what was going on until the morality tale of Imprudent Jesmond and the Dodgy Driving Examiners hit the newspapers, and then we began to find out just a little. People were aghast that a corrupt driving examiner might be the recipient of clemency by the President. Having his punishment reduced is not the same thing as being exonerated of his crime, but still they were appalled that a man found guilty of extorting money from teenagers to give them a pass mark in their driving exams could in any way be thought worthy of consideration for clemency, still less its receipt.

While people were still reeling from the news of all this underhanded behaviour, they were fed the footnotes on how routine this sort of thing really is. Statistics released by the Justice and Home Affairs Ministry, under duress and pressure and not as part of a routine exercise to keep the public informed, revealed that the President exercised his prerogative of mercy a full 243 times in the last four years. He did so 108 times in 2005 alone. The impression given is that clemency is now the equivalent of pastizzi at a political coffee morning. No president can be crucified for signing these papers, because our presidents do not have an executive role. Like the British queen, who has a similar prerogative of mercy from which our own system is derived, he is obliged to act on the advice of the Justice Minister, or the Prime Minister, or both – we are not even clear on that point.

The Labour government of 1997 does not have a track record to be proud of, either. It advised the president to exercise his prerogative of mercy 35 times. The following year, when Alfred Sant’s government hung by a thread and was caught up in internecine battles, it had other things on its mind and the prerogative of mercy was exercised just four times.

It is not just the secrecy that upsets people. It is also the feeling that they are being conspired against by the government and the Opposition in collusion with each other. Nobody imagines that there are back-scratching meetings in which the two warring parties sit around with glasses of whiskey and some less than charming stories about the latest Russian prostitutes, and then agree to agree that reforming the “prerogative of mercy” system is not in the public interest. No, what people seem to think is exactly what I think: that there is a tacit understanding among politicians, very many of whom are lawyers trying to obtain mercy for their clients from the President through the government, that the system works very well for them as it is, and so b****r the electorate.

When the parliamentary benches on both sides of the house are dominated by lawyers, as they are, they have a vested interest in cloaking the administration of the prerogative of mercy in as much secrecy as possible. This is a clear illustration of something that I have written about over the last couple of weeks: a headlong conflict between a lawyer-MP’s duty to the electorate, and the desire to serve the interests of clients of his or her professional office. The latter insist on the utmost secrecy and confidentiality. The former demand what is their right to having all such information placed fairly and squarely in the public domain.

If people are kept informed every step of the way, they rarely react negatively to what is happening, or suspect that they are being plotted against in a process that undermines the democratic imperative. Yet parliamentarians do not want to keep us informed because our interests conflict with theirs. We have voted them in to Parliament to protect, defend and represent our interests, but we are angry, disappointed and disillusioned to find out that they are putting their professional interests and narrow political expediency first. Put simply and brutally, they are keeping things from us so as to be able to exploit the system for their political and legal clients.

It is not just the frequency with which the prerogative of mercy is exercised that surprises and dismays us, but the triviality of the cases to which it is applied. You might imagine that a case in which a murderer is granted presidential clemency would shock people, but presidential clemency for a traffic offence or a fine for not sending children to school would not. Oh, how wrong you are if that is how you think. It is the trivialising of the prerogative of mercy, by exercising it for such petty and humdrum reasons, which is deeply upsetting. Sensible people acknowledge that the highest representative of the State must have the prerogative of mercy, and that because of the importance of the separation of powers, this prerogative must be independent of the judicial system. Yet these same sensible people do not wish to see this crucial tool used to undermine the judicial system, or to overturn the principle that justice must be served in the full glare of the public spotlight. If trials are held in open court, and if the decisions of the court – even in marital separation cases – are public, then the same principles should apply when these trials or decisions are overturned or modified by the Head of State.

The general perception of the presidential prerogative of mercy is now that of a political favours system for buddies, clients and those who are owed patronage, operated by Members of Parliament on both sides of the House, in an atmosphere of mutual understanding. A list of the lawyers who applied for the exercise of the prerogative of mercy on behalf of their clients would make interesting reading, if it were forthcoming – which it is not. We very much need to know how many of the applications were made by lawyer-MPs, as it would seem to me obvious that anybody who wishes to make such an application would consider a lawyer who is also an MP, or a lawyer who shares an office with an MP or has close familial ties to one, better placed to push it through, especially if that MP sits on the government benches – though the Opposition MPs appear to be equally prolific with their applications.

In the absence of freely available information, the perception cannot be shaken off of a presidential prerogative of mercy that has been reduced to a self-serving, self-greased system for politicians and their clients or contacts. The Prime Minister has just presented us with a White Paper for a Freedom of Information Act. White Papers are there to provoke debate and public comment, but strangely enough, when there is debate and public comment, the government can end up behaving like a toddler who puts his hands over his ears, squeezes his eyes shut, and hums loudly to drown out the things he doesn’t want to hear.

The government can’t attempt to launch debate about its Freedom of Information Act while concurrently behaving as though information is a dangerous thing which must be concealed from the public. As a start, the government bods might consider looking at how Canada and New Zealand go about keeping the public informed on the matter of the prerogative of mercy. Come to think of it, you might consider these sites worth a look, too: www.gov-gen.govt.nz/role/royalprerogative.htm, and www.npb-cnlc.gc.ca/infocntr/factsh/royal_pre.htm. In Canada and New Zealand, it is called the royal prerogative of mercy because Queen Elizabeth II is still their sovereign. In New Zealand’s case, her power is vested in the Governor General, acting on the advice of the Minister of Justice. In Canada, it is vested in the Governor General or the governor in council (the Cabinet), acting on the advice of the minister of public safety and emergency preparedness, or at least one other minister. In Malta the power of the royal prerogative of mercy was also vested in the Governor before we became a republic in 1974. After that, it ceased to be a royal prerogative administered by a third party on behalf of the Queen, and came to be exercised directly by the Head of State, the president, acting on the advice of the prime minister or the minister of justice (depending on what kind of prime minister we had at the time).

In clear and brief paragraphs written in unambiguous language, the website of the Governor General of New Zealand spells out the information under these headings: What is the royal prerogative of mercy? When will a case be re-opened? Who can apply? How to apply? What will happen to the application? Under the heading ‘further information’, it asks people to call Government House or the Ministry of Justice if they have any further questions, and gives the telephone numbers. The Canadian Department of Justice releases information about the exercise of the prerogative of mercy to the media as a matter of routine on www.justice.gc.ca/en/news. Transparency is not releasing information when you are pressured into doing so, but doing it as a matter of course. A search through the archive of media releases throws up some interesting examples for our own Justice Ministry, which seems more concerned with crusading for the Gift of Life Movement than seeing to its own affairs. A typical one is a fact sheet which gives clear and simple answers to the following questions: What is the royal prerogative of mercy? Who exercises this authority in Canada? And then the specifics: Who is granting clemency in this case? What kinds of clemency are being granted by the Governor General in this case?

The Canada and New Zealand information sites also make the distinction between the types of clemency that can be granted – for instance: a free pardon which is based on innocence and is a recognition that the conviction was erroneous; a conditional pardon that seals and sets aside the criminal record prior to eligibility for a pardon under the Criminal Records Act; the removal of the requirement to pay whatever amount has been levied; the remission of a sentence (all or part of it erased); the interruption of a sentence, called respite (for example, for surgery); and, relief from prohibition (example, from a ban on driving). To obtain similar information in Malta, you must engage the services of experts in constitutional and criminal law, and even then you will not be quite certain if what you are told is correct. Will it break the Justice Minister’s back, in this so-called information age, to put similar information on line, and to ensure that it is not written in obfuscating legalese, but in normal and accessible language?

There’s something else. The Canada website makes it clear that the royal prerogative of mercy is exercised only in “very exceptional and truly deserving cases” – in other words, not to waive a Lm5 fine levied by the courts on someone who didn’t send her child to school, which was one of the cases recorded over the last few years in Malta. In case you’re on the beach or can’t be bothered to go to your computer, I’ll quote it for you: “There must be clear and strong evidence of injustice or undue hardship, e.g. suffering of a mental, physical and/or financial nature that is out of proportion to the nature and the seriousness of the offence. The applicant must have exhausted all other venues available under the Criminal Code, or other pertinent legislation. The independence of the judiciary shall be respected in that there must be stronger and more specific grounds to recommend action that would interfere with a court’s decision. It is intended only for rare cases in which considerations of justice, humanity and compassion override the normal administration of justice.”

And Malta? We haven’t a clue. All we know is that if Canada were administering the prerogative of mercy system in the same way that we do, at around 40 “pardons” a year with a population of 400,000, it would be dishing out about 33,000 “pardons” a year with its population of 33 million. Yet its exercise of the prerogative of mercy is closer in numerical terms to ours.

From what I can gather, it seems that in Malta the rules are made as we go along. Nobody seems to know exactly what is meant to happen, what the rules are, or even if there are any rules at all. A crucial point that emerges from the Canadian and New Zealand information is that before seeking mercy through the Governor General, the applicant (or should that be supplicant?) must first exhaust all other forms of possible redress, most notably through the appeals court. This is actually something that struck me about the driving examiners’ shenanigans: they didn’t appeal the decision of the courts, but headed straight for the President. So please can the Justice Ministry spell out in clear language what the rules are, if there are any rules at all, or whether it is a free-for-all with complete and unrestricted discretionary powers? Oh sorry, the Justice Minister is too busy trying to convince the rest of Europe of Malta’s natural and God-given right to be the only country on the continent without any illegal immigrants.

It is astonishing how everyone seems to have blithely accepted the excuse of “precedent”, given as the reason why the Minister for Roads and Transport behaved as he did. Unless Malta is some freakishly exceptional case – but then, we wouldn’t know, because the Justice Ministry is keen on playing its cards close to its chest – with the exercise of the prerogative of mercy there can be no precedent. The question of precedent applies to the judicial system, and not to the prerogative of mercy, which deals with exceptional situations on a case-by-case basis (or should do). But that’s what happens when there is an absolute dearth of information, transparency and accountability: people can be fed lies and half-truths by those whose interest it is to preserve the situation, or to protect themselves from accusations of incorrect behaviour, manipulation of the system, or trafficking in influence.