Former European Court of Human Rights Judge Giovanni Bonello told The Malta Independent that Yorgen Fenech’s Presidential Pardon request, in light of the most recent news reports in the country, has revealed a lacuna in the Constitution.

17 Black owner Yorgen Fenech was arrested in relation to the assassination of Daphne Caruana Galizia. 17 Black was listed in leaked emails as being a target client of Keith Schembri and Konrad Mizzi’s Panama companies.

Keith Schembri and Yorgen Fenech’s family doctor - Dr Adrian Vella - are being questioned under arrest by the police in connection with messages that may have been passed through to Fenech while he is in police custody.

As such the question arose as to whether Prime Minister Joseph Muscat should be the one to take a decision and make the recommendation whether Fenech should be given a presidential pardon, or, more accurately, immunity from prosecution.

The Former European Court of Human Rights Judge, asked whether there is an issue with this and whether Muscat should be the one to give a recommendation to the President, said: “The problem is that the Constitution never contemplated that the person who recommends the immunity from prosecution could allegedly be close to the person who might be suspected or accused of criminal wrongdoing. There is a lacuna.”

This particular conflict could create some problems for Prime Minister Muscat, given that it is the Prime Minister, or a minister delegated by the Cabinet, who needs to make the recommendation to the President to grant a pardon. Article 85 of the Constitution reads that 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,” except in instances where he is required by the Constitution or other law to act in accordance with advice from others.

 “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 a possibility,” Bonello said.

Asked whether the police can go straight to the President with Fenech’s request, Bonello said that the Constitution is clear in the procedure and that this is not allowed.