Court refuses Ferris claim of rights breach over whistleblower status

The former FIAU official Jonathan Ferris has lost a case in which he was demanding a declaration that the government’s decision not to grant him whistleblower status was null and breached his fundamental rights.

The case, filed against the Principal Permanent Secretary and External Whistleblower Unit officer Philip Massa, followed a 2018 judicial protest in which Ferris claimed 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 not long after joining the unit. He claims that this happened because he dug too deep in his investigations into allegations of government corruption.

After losing his job, he claimed the Economic Crimes Unit, tasked with following on the investigations initiated by the FIAU, had played down the results from inspections carried out on Pilatus Bank, the private bank shuttered by the MFSA since the arrest [since acquitted] of owner Ali Sadr Hasheminejad in the United States.

Through a sworn court application signed by his lawyers Jason Azzopardi and Andrew Borg Cardona, Ferris had stated that upon deciding to request whistleblower protection, his lawyer and himself had met with Godwin Pulis at the Office of the Prime Minister in order to start the process of getting him protection.

“The official referred the applicant [Ferris] to first make his request to another government department (External Whistleblower Unit) and a meeting was held with Massa, the accused,” reads the sworn application.

After being asked to hand over documents he had in his possession in order to truly show that he deserved such status, an “email correspondence saga” commenced between Massa and Ferris’ lawyers which ultimately ended in the former FIAU official being told he did not satisfy the criteria necessary for eligibility.

According to Ferris, he was informed that his ineligibility was a result of him failing to have “done internal whistleblowing”.

His lawyers, Jason Azzopardi and Andrew Borg Cardona, had argued that if, as Ferris believes, he was removed from the FIAU precisely because “in carrying out his duties, he was approaching a conclusion and results that were politically uncomfortable for government politicians and those around them”, then he had no way of carrying out internal whistleblowing.

The hearing of the case was further complicated by a request for the recusal of the sitting judge, which was turned down.

In December 2018, Mr Justice Grazio Mercieca, presiding the case, had refused Ferris’s request that he recuse himself from the proceedings, stating his previous role as a person of trust with the Minister for Gozo could not be perceived by a neutral observer as having knowledge or a connection with the affairs of other ministries.

In his judgment on the matter, handed down last week, Mercieca said that what the External Whistleblowing Unit had requested – evidence of internal whistleblowing – was simply an invitation to allow the administrative process to move forward to the next stage, that of external whistleblowing, said the court. “The director was not exercising any discretion; he was giving no decision; he was simply following the obligatory details of the law that bound him. In truth, he could not do anything else.”

The merits of the case had also been effectively exhausted, ruled the judge, as Ferris had since tendered the information he wished to disclose, to the public inquiry into the assassination of Daphne Caruana Galizia in January 2020.

“A court cannot pronounce itself on rights unless requested to by the litigant, on his own initiative,” said the judge. “But on the other hand, the litigant cannot, with limited exceptions, ask for a judicial pronouncement on something unless he had a direct, actual and personal interest in preserving a right of his.”

The fact remained that the case, “although its merits were doubtless of general interest” had been one opened on the basis of a private right; and although the eventual pronouncement could be of public interest, this was not enough in the absence of the necessity of protecting the private right of the plaintiff, to legitimise judgment, said the judge.

The court rejected Ferris’s requests as, in its judgment, his juridical interest had ceased to subsist during the hearing of the case. The court also ordered Ferris to suffer all the costs of the case.