Shepherd Ganni Attard’s woes are his own fault, says Constitutional Court

Malta’s highest court has comprehensively dismissed an appeal filed by Gozitan shepherd Ganni Attard, placing the blame for his problems squarely in his lap.

The Constitutional Court handed down its judgement in Attard’s appeal against the conditions of a decree given in the First Hall of the Civil Court in its Constitutional jurisdiction in April, which suspended the cull of his herd of sheep, as long as certain requirements were met.

The First Hall’s decree had ordered, against a bank guarantee of €10,000, that Attard’s herd be electronically and physically tagged, the male animals sterilised and the destruction of any milk produced by the herd. Should any animals die, their carcasses were only to be destroyed after authorisation was granted by the Veterinary Department. Lastly, the herd was to be held in premises that were licensed for that purpose.

Attard had appealed against the conditions imposing sterilisation of the animals, the destruction of milk, the disposal of animal carcasses and the bank guarantee, describing them as “harsh and unnecessary.”

The sterilisation of the sheep would cause disproportionate prejudice to the shepherd, it was argued, because were the irreversible action to be taken, the male animals would “no longer be good for anything.” With the herd already getting smaller, the measure would mean the animals would never be replaced when they eventually die. He pointed to a similar case in Gozo, where he said, the males were not being sterilised.

Attard’s herd had been ear-tagged in May 2016, but the department had failed to take blood samples from the animals to confirm the results, he said. Destroying the milk would lead the herd’s kids to get sick and die, he argued, saying this amounted to mistreatment of animals.

The refusal to issue a licence to his farm had occurred in spite of his best efforts, Attard protested, blaming the Director General of Veterinary and Phyto Sanitary Regulation for his “refusal to issue the licence.”

The defendants: the Attorney General, the Commissioner of Police and the Director General of Veterinary and Phyto Sanitary Regulation, rebutted the allegations, arguing that the appeal was filed late, after the six-day period in which it could have been filed, had lapsed. Furthermore, they argued that Attard was not registered as a shepherd and was keeping a herd in unlicensed premises.

Untraceable animals pose a hazard to the food chain and stultified measures controlling genetically-transmitted illness in the species, they explained. The sterilisation was necessary to mitigate the risk to public health, which they said, had been brought about by Attard’s “state of continuous illegality.”

Lastly, the defendants pointed out that MEPA didn’t require the Director General’s input to decide on whether to approve the application or not, because Attard had also failed to follow MEPA procedures.

In its decision, the court presided by Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, noted that the decree which Attard had filed his appeal against was one that affected a fundamental right under a special law, which meant that it was not time-barred.

However, it held that the appellant was in a situation of his own making, as he had registered neither the herd, nor himself as a shepherd, nor sought the necessary clearance from the competent authorities.

His failure to register the animals “created a suspicion that they were sick or carriers of illness,” the court held. “Because the herd was so large, the importance of ensuring that none of the animals is allowed to mix with those of other herds, or somehow makes their way into the human food-chain is manifestly strong.”

Sterilisation was not held to be a needless or unreasonable measure in the circumstances.

Attard had not presented any evidence to support his assertion that he had been discriminated against, the court said. “Even if, for the sake of the argument, it was true that other shepherds in the same position had been treated differently... this did not exculpate the appellant and the risks to public health remains.”

The court said it was in agreement with the defendants insofar that the expenses which Attard will incur whenever one of his animals dies, were caused by “the fact that the appellant had decided to conduct an activity without adhering to the applicable regulations, thereby placing himself in a state of illegality.”

His treatment could not be compared to what usually happens to other shepherds, said the court, but should be seen in the light of the fact that he freely chose to get himself into an illegal situation. For the same reason, the court said it considered the bank guarantee imposed to be reasonable and proportionate in view of the size of the herd.