There has lately been reported in the newspapers a public discord between Chief Justice Emeritus Vincent de Gaetano, on the one hand, and the former Prime Minister Joseph Muscat and former justice minister Owen Bonnici, on the other, in relation to the procedure to be followed by the Daphne Caruana Galizia Assassination Board of Inquiry. The former Chief Justice claims that there was interference on the part of government in how the administrative inquiry was to be conducted but the politicians claim that the matters involved were logistical in nature that did not impinge on the merits of the inquiry.

I think that the problem lies with the Inquiries Act.

Personally, I had been involved in five boards of inquiry under the Inquiries Act. My reflection of these proceedings is that the law needs revision because it is too skeletal. It contains no details and does not provide guidance both to the minister appointing the inquiry and to the persons appointed to conduct it. In the five administrative boards of inquiry I was involved in as Member and/or Secretary, sometimes it was the administrative board of inquiry that regulated its logistics, at other times this was taken care of from the Office of the Prime Minister or the ministry appointing the inquiry. The Board sometimes chose its own Secretary, at other times one is assigned to the Board by the Office of the Prime Minister or ministry involved.

In those boards of inquiry that were presided by a Chief Justice or a Judge, sittings were held at the Courts of Justice in Republic Street, Valletta. In those boards of inquiry that were chaired by a civil servant, they were normally held in government offices. At times, it is a board of inquiry that decides whether to hold sittings in public, at other times it is mandated in the instrument of appointment.

What is clear is that there is no uniformity of practice. There is no particular government office that is assigned to provide support service for the holding of administrative inquiries (e.g. to provide a list of experts or interpreters/translators to the board of inquiry, or to transcribe evidence that is being recorded by audiovisual means, or to organise transport if an inspection/s is needed), no secretariat whom to contact and get guidance from, no funds made available to pay experts, interpreters, and translators, and the only contact person would be the minister appointing the Board who would normally delegate such administrative tasks to the Permanent Secretary or some other officer in that ministry.

There are no guidelines on how boards of inquiry should function, or examples of bad practice to be avoided and good practice to be emulated, no code of ethics to comply with, what procedures to follow especially when collecting evidence - should they be those established in the Criminal Code, those in the Code of Organization and Civil Procedure, or some other law? Again, pertinent questions would be, for instance, is hearsay evidence allowed, is it the best evidence that is allowed, can photocopies not originals of documents be allowed, how can evidence from a witness above be collected, etc?

There is practically no public register to provide information on boards of inquiry, even to provide basic information such as how many boards of inquiry have been appointed on an annual basis from 1964 to date, what did they investigate, did they report back, who were the members of these boards, what did they find, and have all or some or none of their recommendations been implemented. There are a few cases where some information is forthcoming by government and is publicly available but that information can also be partial in the sense that if there is a person who wants to carry out an exercise on the efficiency of boards of inquiry, this is impossible to compile due to the dearth of information.

Then there are cases where an administrative board of inquiry is appointed concurrent with a magisterial investigation. When this happens, the terms of reference tend to be blurred because the administrative board of inquiry is not there to establish a prima facie case of criminal responsibility, or to identify evidence that can eventually be used in prosecuting a would-be offender.

In one board of inquiry in which I was a member/secretary, an inquiring magistrate had found criminal fault and directed the Police to institute criminal proceedings against a particular person whilst the Board of Inquiry concluded that this was not a case of individual criminal responsibility but of a systemic failure. In this case, the government acted on the conclusions of the Board of Inquiry whilst discarding those of the Inquiring Magistrate.

I think that having two concurrent investigations taking place at the same time can complicate matters, more so that the same evidence is compiled in both cases, the evidence compiled by the investigating magistrate is not made available to the Board of Inquiry and the administrative inquiry may reach totally opposite conclusions to the magisterial inquiry as it did in the instant case. This does not bode well for certainty of law and an administrative inquiry should not lead - as in the example given above - to displacing the conclusions of a magisterial inquiry. But in our case, the Board of Inquiry was chaired by a sitting Chief Justice whose rank is superior to the inquiring magistrate.

Yet the Criminal Code does not consider an appeal from the conclusions of an inquiring magistrate to a Judge. For criminal law purposes, the magisterial inquiry has precedence over the Board of Inquiry's conclusions. Nevertheless, in our case, the magistrate was instructing the institution of criminal proceedings against a public officer but for the administrative Board of Inquiry the problem was not one of individual criminal responsibility but of institutional failure where it would be unfair to pinpoint a particular person and lay the whole responsibility on him or her for s/he is only cog in the wheel. The Inquiries Act does not address these matters.

Further, the Inquiries Act does not establish clear criteria when concurrent administrative and magisterial inquiries should be appointed. And what if the Board of Inquiry concludes its task before the magisterial one and government acts on its recommendations but the magisterial inquiry - that might not even be privy to the acts of the proceedings, conclusions, and recommendations of the Board of Inquiry decide otherwise and the implementation of the administrative findings might prejudice eventual criminal proceedings?

There is therefore a need to revisit the Inquiries Act that is too skimpy in content. Its provisions need to be beefed up so as to clarify several matters identified above and others. For instance, it is not the purpose of an administrative inquiry to establish guilt or criminal responsibility but at times, especially when an administrative board of inquiry is presided by a member of the judiciary, that inquiry tends to search for evidence to inculpate a civil servant rather than to identify systemic failures. Hence, the terms of reference of an administrative inquiry can be interpreted in a way to encroach upon the magisterial inquiry.

An eventual reform of the Inquiries Law has to be two-pronged: legislative and administrative. The Inquiries Act needs to be beefed up and the Office of the Prime Minister must establish a Directorate for Support Services to Boards of Inquiry that deals with all logistical, financial, spatial, human resources, record keeping, and follow up action. This Office should also be established by law together with its functions.

Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta