Prime Minister Robert Abela, a lawyer, surrounded by so many legal experts, should know what magisterial or in genere inquiries set out to do, which make his scandalous attacks on the inquiry magistrate in the hospitals deal even more unacceptable.

The Criminal Code contains a section titled ‘Of inquiries relating to the in genere inquests and reperti’. In a nutshell, this section, which consists of 24 articles, empowers and burdens the inquiring magistrate with the responsibility to primarily describe and preserve the material traces of any offence.

An inquiring magistrate’s role, therefore, is not to investigate as such, something the police have to do, but to collect and conserve the evidence, especially in sensitive cases. Such evidence will, subsequently, be submitted before the court during a prosecution.

Thus, whatever may be contained in the findings of a magisterial inquiry can at no point be considered as a formal declaration of guilt or otherwise. The inquiring magistrate makes recommendations, and it is then up to the attorney general – after sifting through the findings – to decide whether there is sufficient material to press charges. In fact, though the Pilatus Bank magisterial inquiry had recommended court action in respect of two bank officials, the attorney general had issued a nolle prosequi, an order not to prosecute.

By law, the duty magistrate opens an inquiry when notified by the attorney general, the police or any other person about the occurrence of a crime punishable by at least three years imprisonment.

The magistrate is bound to inform the ‘suspect’ of such a request, giving the person time to reply before deciding whether to hold the inquiry. So, all those subjected to an in genere inquiry are given the opportunity to react.

Indeed, in the Vitals/Steward inquiry, a former prime minister and three former ministers sought court redress about the matter.

The magistrate is at liberty to hear witnesses, appoint experts and seek additional evidence.

Of course, a magistrate bases the inquiry on the “report, information or complaint in regard to any offence…” – words of the law – received. Still, that can hardly be construed as the inquiry having “departed from a position of presumption of guilt”, as the prime minister charged on Monday.

An inquiring magistrate does not pronounce judgment, not even a formal indictment. In fact, it is the magistrate presiding over the compilation of evidence that eventually decides whether there is enough evidence for the accused to be indicted or not. Throughout, the accused is presumed innocent.

In the process, the inquiring magistrate may come across and/or unearth information that could well indicate offences beyond what had originally been alleged. Additional ‘suspects’ might emerge too.

So, in a case of theft, for example, it may result that a constable was stealing ‘lost and found’ items taken to a police station while the duty sergeant turned a blind eye. The inquiring magistrate would likely also recommend action against such officer for dereliction of duty, even if that same sergeant had once saved a citizen from drowning.

Political or humanitarian considerations can be made by a politician but not by a member of the judiciary, certainly not at the inquiry stage. A person’s track record and character may be considered later, by a magistrate or judge when deciding on punishment.

The above clearly indicates that, in his criticism of the hospitals deal inquiry magistrate, Abela is either misinterpreting the law or misleading the people. Whichever, that is conduct unbecoming a prime minister and that certainly damages his credentials as a lawyer.