What Magistrate Aaron Bugeja is conducting is an inquiry under the Criminal Code, not an inquiry under the Inquiries Act. Apart from the fact that such an inquiry can in practice only commence if the police decide to act – and, in this case, they acted much too late – such inquiries were originally intended only to preserve the material traces of an offence, the assumption being that the police would be doing their duty and investigating any reasonable suspicion of an offence ‘without fear or favour’.

Regrettably, history, even very recent, has shown that assumption to be entirely chimerical.

Through a series of (sometimes haphazard) changes to the Criminal Code, over the years, magistrates were granted powers which, if used judiciously, enable them to get out of the straitjacket of the ‘parallel’ police investigation (or lack of it). In the late 1980s, for instance, two magistrates (later judges) for the first time in history combined two separate inquiries – one into the discovery of a weapon in a Safi farmhouse and the other into a shooting incident – and, defying convention, continued to investigate jointly even after a suspect had been arraigned on trumped up charges.

The government of the day had even gone to the extent of amending the Criminal Code to allow the Commissioner of Police to challenge the production, by way of evidence, of the record of that joint inquiry.

It was a Kafkaesque situation with the police contesting the findings of a judicial inquiry they themselves had provoked. The provision in question was immediately repealed after a change of administration.

In an interview with this newspaper last January, Chief Justice Emeritus Vincent De Gaetano had noted that, in some European countries, the investigation of and the decision to prosecute serious crime are done by a special branch of the judiciary or by an independent prosecution service not by a police force, which is essentially part of the executive branch of government.

He had pointed out that in those countries where this is not done, there is a robust system of judicial review and independent bodies that supervise the functioning of the police force at various levels.

In Malta, a magistrate cannot investigate unless first primed by the police or by the Attorney General. What is more debilitating than a weak Commissioner of Police is a combination of a weak Commissioner of Police and a weak Attorney General.

The Constitution provides that: “In the exercise of his powers to institute, undertake and discontinue criminal proceedings and of any other powers conferred on him by any law in terms which authorise him to exercise that power in his individual judgement, the Attorney General shall not be subject to the direction or control of any other person or authority.”

But is this another chimera like the police investigating ‘without fear or favour’ when it comes to members of the executive being the subjects of reasonable suspicion?

Articles 554 (1) and (3) of the Criminal Code, which deal with the powers of magistrates conducting an inquest and which the two magistrates mentioned earlier had made ample use of, constitute a redeeming feature.

We have still to see whether the magistrate conducting the Egrant allegations inquiry will decide to make effective use of such powers or whether he would prefer to stick to convention.