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MP Jose Herrera laments what he perceives to be bias in the granting of presidential pardons and suggests Malta adopts a US system
A residual power of the President is that of granting presidential pardons. In actual fact, however, the decisions behind such pardons are never the President’s but of the government of the day. This system has, over the years, given rise to abuse. In this instance I am not referring to pardons granted to witnesses who turn in state evidence. That is a different matter altogether.
In this article I am referring to the Presidential prerogative of reducing or revoking prison terms of particular inmates. It has become practice for condemned persons to petition the Presidency to have their sentence, or part thereof, remitted. Once the petition is presented the request is processed. More often than not advice is sought from various government officials, including the Director of Prisons, the Commissioner of Police and the Attorney General.
The processing of the petition in question begs transparency and the government is in no way bound by the advice being given. On account of this, the arbitrary granting of pardons by the executive branch of state has led to severe criticism and at times has been suspect. Strangely there is no pre-established criteria the government is bound to follow in such matters.
On account of this, over the years, a lot of prison inmates have justifiably felt discriminated against. As a lawyer practicing in the criminal field I myself have come across quite a number of anomalies. I recall the case when I was counsel to a co-accused who, together with other accused, was found guilty of a series of thefts and sentenced accordingly to a number of years in prison. Due to the fact that the judicial process had dragged on for an inexplicable period of time, both convicted persons filed their respective petitions. Mysteriously, while one petition was duly acceded to within a few weeks, the other person’s request dragged on indefinitely until it was finally rejected.
Similarly, there have been, and presently still are, a number of petitions asking for clemency due to the severe ill-health of the individuals. Again, here I know of a particular case whereby one such petition was granted on such considerations and whereby the particular inmate was subsequently released from prison. Strangely, on the other hand, similar petitions based on identical considerations have either been denied outright or have been left pending.
From time to time these inconsistencies have caught the attention of the media and have even been raised before Parliament, but to no avail. On account of this, over the years, a number of parliamentarians from both sides of the House have had occasion to make suggestions in order to reform the way pardons are granted and to make the process more acceptable and transparent.
The most interesting suggestions in this regard have been the call for the introduction of parole. This system, which saw its inception in the United States, is by far the fairest and safest method in the granting of remission with regard to prison sentences. The parole board, ideally headed by a retired member of the judiciary, would function in a completely autonomous way, thereby excluding the possibility of political intrigue in the processing of such delicate matters.
Prison inmates, thereby, will have the right to appear before an independent and impartial authority which would have the power to assess whether there exist those particular circumstances which would justify a prisoners’ early release.
Notwithstanding that the idea has been persistently recommended, the government persists in preserving the status quo attributing to itself a kind of archaic judicial function. Curiously, on the other hand, our penal code has been totally revamped. Similarly too, over the years, the government has introduced amendments catering for alternative forms of punishment. It is incredulous how our government has persistently refrained from introducing a system of parole and remains content to be on the receiving end of severe criticism.
Dr Jose Herrera LLD, MP is a Labour MP
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