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Jonathan Ferris recusal request is turned down

Reasons against need for recusal spelled out in long judgment

Jonathan Ferris.

Jonathan Ferris.

Former FIAU investigator Jonathan Ferris has lost his quest to stop Mr Justice Grazio Mercieca from hearing the case contesting the government's decision not to grant him whistleblower status.

The decision was delivered on Thursday in the course of civil proceedings filed in October against the Principal Permanent Secretary and External Whistleblower Unit officer Philip Massa.

Mr Ferris is claiming that the unit repeatedly moved the goalposts to derail his application for whistleblower protection.

The former police inspector with the Economic Crimes Unit was fired from a new post at the Financial Intelligence Analysis Unit not long after joining it. He claims this happened because he dug too deep into government corruption allegations. Mr Ferris insists that the termination of his employment was illegal and abusive, and the result of ministerial interference.

The challenge against Mr Justice Mercieca was based on the applicant’s claims that the judge had close ties in the past to a public figure with links to a political party and that he had also been a person of trust.

Since this case dealt with Mr Ferris’s alleged uncovering of serious corruption by government officials, the applicant claimed that he could not be assured that justice would appear to be done in his case, pointing out that even society at large was losing faith in the country’s institutions.

In a 25-page long decision, Mr Justice Mercieca provided an in-depth analysis of local and European case-law and jurisprudence on the right to be heard by an independent and impartial tribunal.

“It is true that ‘justice must not only be done, it must also be seen to be done’ and this because of the need for public confidence in the courts. However, the right test for this is that of a fair-minded and informed observer and not popular sentiment. Rather the judge who bows his head to this type of pressure would be partial.”

Observing that Maltese society “is what it is” in terms of limitations, the judge noted that any case involving political issues would end up being assigned to a member of the judiciary with some form of political ties or background.

As long as past opinions were no longer expressed after the oath of office and as long as “a clear distinction can be identified between the expression of opinions…and the role of the judge,” the objective perception of impartiality remained intact, the judge declared.

There must be other factors militating against impartiality to justify recusal, the judge continued, also referring to a recent decision by Mr Justice Antonio Mizzi not to recuse himself in a case filed by former leader of the Opposition, Simon Busuttil.

Citing a judgment by Mr Justice Joseph Zammit McKeon which stated that the reasons for recusal or abstention must be “concrete and not merely perceived,” Mr Justice Mercieca declared that political or religious beliefs and activism were not sufficient reasons for the challenge.

The matter would be different if the judge were involved in an activity which later resulted in the subject matter of a case before him, or should it be shown that he had strong ties with the officials involved.

In this case, Mr Justice Mercieca had been active in politics but had given up all his political ties when appointed as court attorney in October 2015, long before the merits of Mr Ferris’ case had come about.

As for his previous role as a person of trust with the Minister for Gozo, he could not be perceived by a neutral observer as having a connection or knowledge of the affairs involving other officials in other ministries, the judge concluded, thereby turning down the applicant’s request for recusal.

Lawyer Jason Azzopardi is assisting Mr Ferris.

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