Judge Toni Abela ordered the state to pay Jonathan Ferris €20,000 in compensation when it discriminated against him and rejected his application to re-join the police force around the time of the 2017 general elections.

Jonathan Ferris had resigned the police force in 2016 after he was approached to join the Financial Intelligence Agency, the FIAU. He had asked to be ‘seconded’ to the FIAU, an internal government procedure that allows employees to move to different agencies but retain a link to their original employment should they need to go back to it. His request for secondment was rejected so he opted to resign the force instead and move to the FIAU.

But after a few months at the intelligence agency, he was fired without being given a reason for losing his job.  This was weeks after then Finance Minister Edward Scicluna made public remarks accusing unnamed agents of leaking internal FIAU. Jonathan Ferris was never explicitly accused of leaking any information.

When he applied to re-join the police force on a ‘reinstatement’ basis, he was left waiting while more than 200 ex-cops, some with a criminal record, were re-instated in the months and weeks before the 2017 election.

Jonathan Ferris was never re-instated, losing both his job and the entitlement to a service pension from age 60, a work benefit of police officers.

The case has been dragging since 2019. In today’s decision Judge Toni Abela disagreed Jonathan Ferries suffered any discrimination when he was denied secondment but agreed he had been discriminated against when he was denied re-instatement. The judge found no reasonable grounds for such a rejection and criticised in his decision the testimony of former police commissioner Lawrence Cutajar who proved unable to give a reason for his decision.

A legal tussle over access to the European Convention provision providing guarantees against discrimination proved to be a complex part of the case. Discrimination is forbidden by Protocol 12 which was added to the European Convention 23 years ago. The rule was ratified by the Maltese government but never added to Maltese law. In principle international law needs to be incorporated into Maltese law before it can be enforced by local courts. Despite this, Judge Toni Abela decided to apply Protocol 12 anyway.

However, Judge Abela stopped short of making whole the consequences suffered by Jonathan Ferris because of the unlawful discrimination inflicted on him.  Instead of ordering his re-instatement, which would have also included access to a service pension, Judge Abela ordered that Jonathan Ferris is paid €20,000 to close the matter altogether.

This decision followed several observations made by Judge Abela about Jonathan Ferris’s public statements made before and after he filed his human rights complaints.

Judge Abela said Jonathan Ferris had been “impulsive”, even if he was hurt by what he had learnt at the FIAU. “The Court feels that the interviews given by (Ferris) to the local media while he was still waiting for a decision on his request to be reinstated, placed him in a position of confrontation with the people he was expecting to employ him.”

Later in the judgement Judge Abela said that “(Ferris) could have been more prudent and cautious. Instead of asking for some form of explanation he went straight to the media. A request for an explanation would have helped because whether he got an answer or not, he would have been given convincing and clear evidence that his requests were not being addressed but were instead being implicitly rejected by the limbo of silence.”

Significantly, Judge Abela remarked that “this factor will be taken into consideration when deciding on the remedy given (to Ferris).”

The Judge commented further: “If the intentions of (Ferris) were good, the Court believes he would have chosen other roads and not resort to the media the moment he learnt that others had been re-instated before the general election.”

The judge then concluded that whatever inappropriate comments Ferris had made came well after he had applied for re-instatement which is why he agreed that the unspoken refusal of the police to hire him back had been unreasonable and therefore discriminatory.

It is my duty to warn you that what follows is my comment on the facts reported above.

It is clear to me that the court’s decision entirely ignores the function of a whistleblower in a society. The comments passed by the judge show that the court considers it wrong for a public official or a former public official to speak publicly of wrongdoing they are aware of whether they or somebody else are the victims of that wrongdoing.

Indeed, lawyers recall that when Jonathan Ferris testified in his own proceedings, he was warned by Judge Abela, off the record, that should he include in his testimony privileged information about wrongdoing he was aware of because of having been an intelligence agent, consequences would still apply. Consequences in these cases can include imprisonment.

The judge’s remark in his decision today that he would factor in the remedy the interviews given by Jonathan Ferris where he had been critical of the police amounts in my view to a punishment served by the court on Jonathan Ferris. It is a fresh injustice.

If one looks at this from a glass half full perspective, one might say Ferris was given €20,000 today. I’m looking at the glass half empty. The court acknowledged that the state discriminated unlawfully against Ferris when they denied him re-instatement, but the court refused to compensate him in proportion to the consequences he suffered because the court didn’t like Ferris’s public remarks and interviews with the press. The court denied him re-instatement and consequently denied him his right to a service pension and it explicitly said it was doing so because Jonathan Ferris talked too much to the media.

This is not what whistleblowers should be facing in a democracy where they are so badly needed to speak up and help fight corruption. After losing his job and after being treated unfairly, a human rights court has now sought fit to tell Jonathan Ferris he should have stayed mum and that if he had been silent the court would have been inclined to compensate him better.

Just how does this country seriously expect witnesses of wrongdoing to come out and speak up about it?