In March 2020, Legal Notice 72 of 2020, entitled ‘Enforcement of Directions relating to Quarantine (Amendment) Regulations, was published. This Legal Notice sought to revise the pecuniary punishment to be imposed on persons who fail to adhere to COVID-19 measures including any obligatory quarantine periods. Since the coming into force of this Legal Notice, any person who fails to adhere to such measures and/or any obligatory period of quarantine is guilty of an offence and liable to the payment of a penalty of three thousand Euro (€3,000) for each and every occasion that the quarantine period is breached. For clarity’s sake, Regulation 2 of Legal Notice 72 of 2020 holds as follows:

“Any person who fails to abide by the provisions of these regulations shall be guilty of an offence and shall, on conviction, be liable to the payment of a penalty of three thousand euro (€3,000) for each and every occasion that the quarantine period is breached.”

The oddity behind this provision revolves on the term ‘penalty’ and this was precisely the issue that led to the acquittal of the defendant in a tribunal hearing before the Commissioner of Justice which took place on the 27^th of April 2021. This decision, in the names of ‘LESA v. Mario Attard’, could very well create a ripple or domino effect on future tribunal cases with comparable merits and grounded on the same charges.

The afore-cited Regulation 2 of Legal Notice 72 of 2020 makes it amply clear that it is creating a criminal offence. An offence in Malta can either take the form of a ‘crime’ or alternatively a ‘contravention’. In terms of Article 7 of the Maltese Criminal Code, the pecuniary punishments that may be meted out for crimes and contraventions respectively are a fine (multa) and a fine (ammenda). The question therefore remains; the term penalty – used in Regulation 2 of Legal Notice 72 of 2020 – falls under which category of punishment? Is it a fine (multa) of a fine (ammenda)?

To this day, this remains a mystery. What is certain, however, is that nowhere in the Maltese Statute book is the concept of penalty recognised as a punishment that may be meted out for a finding of guilt and this in itself creates legal uncertainty.

In the afore-cited case of ‘LESA v. Mario Attard’ the defendant argued that since the term penalty is not under Maltese law recognised as a form of pecuniary punishment awardable for offences, the fundamental principle of nulla peona sine lege – literally implying ‘no penalty without a law’ – safeguarded by both article 39(8) of the Maltese Constitution and Article 7 of European Convention of Human Rights (ECHR), was violated.

The Commissioner for Justice upheld this plea and proceeded to acquit the defendant Mario Attard.

What changes to the law this decision is set to bring forth, is yet to be seen.

Paralegal Jacob Magri assisted the defendent before the Commissioner of Justice.

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The terms presidential pardon or prerogative of mercy, commonly referred to in Maltese as proklama or maħfra presidenzjali, have in the past couple of months become buzzwords in Malta. As the name itself suggests, a presidential pardon implies clemency or forgiveness. It is an extremely powerful discretionary tool, regulated by article 93 of the Constitution of Malta, vested in the executive arm of the State, specifically the Head of State. A presidential pardon empowers the President, through Cabinet, to assume powers ordinarily vested in the judicial organ of the State. In other words, this powerful tool usurps the functions of the courts of criminal jurisdiction.

Generally, when granted, a presidential pardon either exonerates, conditionally or unconditionally, an individual from criminal prosecution for his/her involvement in a crime or else discontinues the effects of a criminal conviction by, for instance, ordering that an inmate serving an imprisonment sentence be immediately released from prison. The President may also, in terms of article 93 of the Constitution, substitute a less severe form of punishment for any punishment imposed on any person for any offence, at his discretion or owing to a change in law where the relative punishment would have been decreased.

Many a times, presidential pardons are granted in exchange for inside knowledge or information that would help the investigative authorities and prosecutorial bodies secure the convictions of the true masterminds of the crime concerned. Such pardons are generally subjected to a number of conditions, the standard one being that the individual pardoned has to give State evidence and reveal the whole truth in Court and moreso cooperate fully with the prosecution in arriving at the truth. If the person does not abide by any of these lawful conditions, the pardon may be revoked.

Interestingly, contrary to what many might think, while a request for a presidential pardon is on paper addressed to the President, the latter is actually compelled to act on the advice of the Cabinet, generally the minister responsible for justice, prior to granting a pardon. In fact, when the office of the President of Malta receives a request for a presidential pardon, such request is normally communicated to the minister responsible for justice for his advice, who in turn generally consults with other authorities such as the Attorney General or the Commissioner of Police.

What is also noteworthy about the manner in which presidential pardons are granted is that contrary to criminal offences which are tried by independent and impartial courts in a public setting, all discussions and arrangements in connection with presdential pardons take place privately behind closed doors. The consultation carried out, if and when this is done, is normally limited to government ministries, departments, agencies and/or the public administration. Technically speaking, the Cabinet need not even consult with the Attorney General and/or the Commissioner of Police prior to deciding whether or not to grant a prerogative of mercy. Moreover, the public and the media is never consulted as to whether an amnesty should or should not be given and in which circumstances or under what conditions. This makes the exercise rather secretive and partial.

One may, in light of the above, justifiably question the overall fairness of the system of presidential pardons, especially in Malta where the decision-making process is not transparent and is practically left in the hands of polticians. However, on the other end of the spectrum, the importance of the presidential pardon system – which is found in most democratic countries – is undisputed if utilised for humanitarian reasons, inter alia to combat miscarriages of justice and as a tool to ensure that those who commit serious crimes do not escape punishment.

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