Judge denies Jonathan Ferris recusal request

Judge Grazio Mercieca has rejected a request that he recuse himself from hearing a case filed by former police inspector Jonathan Ferris.

The case, filed in October against the Principal Permanent Secretary and External Whistleblower Unit officer Philip Massa, follows a judicial protest in which Ferris claims the unit had repeatedly moved the goalposts to derail his application for whistleblower protection.

Ferris, a former police inspector with the Economic Crimes Unit, had been fired from a new post at the Financial Intelligence Analysis Unit after the 2017 election.

He claims this happened because he dug too deep in his investigations into government corruption allegations. Ferris insists that the termination of his employment was illegal and abusive and the result of ministerial interference.

The former police officer had filed an application, requesting the judge refrain from hearing his case on the basis that Mercieca had close and very recent ties to the Labour Party and had been a person of trust.

As the case deals with Ferris’ alleged uncovering of serious corruption by government officials, he said he could not be assured that justice would appear to be done in his case.

In a 25-page decision on the matter, the judge examined in depth the articles and cases of both Maltese and European law dealing with 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 to have the public’s 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," Mercieca said.

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

As long as past opinions are no longer expressed after the oath of office, he said, and as long as “a clear distinction can be identified between the expression of opinions… and the role of the judge and in the absence of incontrovertible evidence to the contrary, it is the considered opinion of this court that in such circumstances, the objective perception of impartiality remains intact.”

There must be other factors militating against impartiality to justify recusal, he said, also referring to  the recent decision by Judge 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, he said the reasons for recusal or abstention must be “concrete and not merely perceived.” Political or religious beliefs and activism were not sufficient reason, Judge Mercieca said.

For there to be grounds for this the judge must have been involved in the activity which are the merits of the case before him or there must be strong ties between him and the officials concerned.

In the present case the sitting judge was active in politics but had stopped a long time before being appointed to the Bench. The facts forming the merits of Ferris’ case had happened after he had been appointed and were not exactly political in nature anyway, he said.

In 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, Mercieca said.