Tonio Borg expressed an opinion about the decision delivered by the Criminal Court, on the request for an enquiry by Simon Busuttil. It is unfortunate that we have to discuss such a legal problem against the background of politics and politicians.

I definitely agree with Borg that reasoned and respectful discussion about court judgments is not only legitimate but actually presumed to be in the interests of justice. It is for this reason that there is publicity of procedures and judgments.

To avoid any suspicion of political bias in this opinion, I shall refrain from discussing the particular decision. But we are fully entitled to examine the law, even from a historical perspective, to arrive at the precise interpretation.

Borg is correct when he says that the function is bestowed on a “magistrate” and not on “a court”.  The magistrate is the guarantor of the truth of his observations on material evidence, which has to be preserved. This remains the essential functions of the enquiring magistrate.

Opinion: Wrong interpretation of the law - Tonio Borg

He is not an investigative magistrate, on the model of the Italian Pubblico Ministero, who conducts his own investigations and delves into all aspects of a criminal prospective prosecution. Perhaps the magistrate who comes to mind is Antonio Di Pietro and his method of investigation. We do not have such powers or office with such powers. We follow the English system that investigation of offences is remitted to the police. We have an added guarantee that the Commissioner of Police may be challenged and ordered by the court to proceed, if he refuses or fails.  The two aspects must be kept distinct.

It was Sir Thomas Maitland who set up the Malta Police Force, abolishing the powers of the Uditore, who had absolute investigate powers and even the powers to detain persons indefinitely. Maitland certainly knew what he had back home.

But why should all the honourable mention go to Maitland? In this century part of the Criminal Code was rewritten and reads as follows (Art 346):

“It is the duty of the police to preserve public order and peace, to prevent and to detect and investigate offences, to collect evidence, whether against or in favour of the person suspected of having committed that offence, and to bring the offenders, whether principals or accomplices, before the judicial authorities.”

This was apart of an amendment in  2002 (Art 74 of the Act) and it was piloted by none other than Tonio Borg, then minister for justice. It is amply clear that the power to investigate offences rests with the police. The Attorney General comes in at a later stage, and not in all cases.

We cannot all of a sudden invent roles and powers which were never intended for the magistrate

Now compare this to the law on inquests:

“546. (1) Saving the provisions of the next following sub-articles, upon the receipt of any report, information or complaint in regard to any offence liable to the punishment of imprisonment exceeding three years, and if the subject-matter of the offence still exists, the state thereof, with each and every particular, shall be described, and the instrument, as well as the manner in which such instrument may have produced the effect, shall be indicated. For the purpose of any such investigation, an inquest on the spot shall be held…”

Borg introduced an amendment to this article by the addition that the offence must be liable to three years imprisonment at least.

But the fundamental point is that the “inquest” is to be held by the magistrate on the spot “if the subject matter of the offence still exists”.

That is the meaning of the words “in genere”. The magistrate has to preserve evidence if it is still there.

The essential feature of the inquest is that there is an on-the-spot assessment of what may be evidence and what may not be relevant. If there is no protection for such traces of the offences, then it is so easy to tamper with and destroy traces by those who have an interest in defacing tell-tale material elements.

The wording used in the text of the law about the inquest clearly indicates that it has a continental origin. Proces Verbal is not found in English legal texts. But it is very common in Italian criminal procedural law, for example.

Art 244 of the Italian Codice di Procedura Penale specifically regulates on the spot inspections. “1. L’ispezione delle persone, dei luoghi e delle cose e’ disposta con decreto motivato quando occorre accertare le tracce e gli altri effetti materiali del reato.”

In no part of the “chapter” on the inquest is there any mention that the magistrate should take over from the police and conduct his own investigation.

Something similar, but restricted in its ambit, is the Coroner’s Inquest in Anglo-Saxon jurisdictions. The coroner holds an inquest to establish the cause of death but does not proceed to investigate who was responsible if the death was not from natural causes.

If we want to bestow investigative powers on magistrates (Di Pietro type) then the law must be amended. And the hierarchy must also be established that the police would be subordinate to the magistrate. What about the Attorney General and his constitutional role?

We have inherited these rules and practices and we cannot all of a sudden invent roles and powers which were never intended for the magistrate in an inquest.

Joe Brincat is a former Labour justice minister.

This is a Times of Malta print opinion piece