President’s pardon refusal for Degiorgio brothers is not subject to judicial review

Brothers George and Alfred Degiorgio failed to overrule the decision taken by President George Vella to deny them a presidential pardon, with the court stating that such a decision is not subject to judicial review.

This was the result of a judgment handed down in civil proceedings filed by the brothers, who are currently awaiting trial for their alleged involvement in the murder of Daphne Caruana Galizia. The two requested a presidential pardon in exchange for direct information they claimed to have about the alleged involvement of two former government ministers in "very serious crimes."

But their requests were rejected by President George Vella who acted on a Cabinet recommendation which, in turn, acted on the advice received from the Attorney General and the Police Commissioner.

The Degiorgio brothers claimed that that decision was taken without anyone ever hearing what they had to say, and expressed their concern that "no one in Malta" is willing to listen to them, although they have openly and consistently maintained that they have evidence "of real, reliable, credible and direct evidence."

They then brought two separate actions. In the first, they claimed that their fundamental right to a fair trial was violated. The second action was to review the President's decision as an administrative action taken on advice that was in breach of the principles of natural justice.

This case was filed against the President of Malta, the Prime Minister, the Cabinet, the Police Commissioner, the Attorney General, the State Advocate and the Minister of Justice. In delivering the judgment, the court observed that an "administrative act" under article 469A(2) of the Code of Organisation and Civil Procedure included "the issue by a public authority of any order, licence, permit, warrant, decision or refusal for any request of the claimant."

The advice offered to the Cabinet certainly does not fall within the parameters of this definition, although they were "extensive" - and "perhaps too extensive," remarked Mr Justice Grazio Mercieca, presiding over the First Hall, Civil Court.

Advice was not a decision and therefore the brothers' claims against the AG, the State Advocate and the Police Commissioner were unfounded.

The Prime Minister in his personal capacity had nothing to do with the matter and the Cabinet's recommendation to the President was not an administrative act in terms of law, the court was told. Although the President acted on that recommendation, the final decision was "formally" his, not the Cabinet's.

However, the law itself granted immunity to the President when acting in the functions of his office and, therefore, the decision refusing pardon was not subject to judicial review. The legislator even went one step further. The Constitution stated that whenever the President was required to act "in accordance with the advice of any person or authority" such advice "shall not be reviewed in any court."

The court concluded that the Degiorgios' claims could not be upheld since neither the President's decision nor the relative advice could be subject to judicial review. Lawyers Stefano Filletti and Maurice Meli represented the President.