LSASL Magazine: May Issue 2023

ABOUT LSASL

Law Students’ Association of Sri Lanka (LSASL)

The Law Students’ Association of Sri Lanka (LSASL) is an independent, non-political and nonprofit body established in 2009 that represents the law student populace in Sri Lanka.

The Association is committed to the ideals of legal scholarship and social responsibility whilst also working towards building a strong legal network among law students and professionals in the country. The Association is also a National Chapter (ALSA Sri Lanka) of the Asian Law Students Association (ALSA), which is an amalgamation of law students across 16 Asian countries. The Association is further partnered with the Australian Law Students’ Association and the European Law Students’ Association (ELSA) as well.

Established in 2009 by the ever-inspiring and eminent Jurist, the late Justice C.G. Weeramantry, the LSASL is one of the most prestigious student associations in the country to be representing all private and governmental legal education institutions and its students.

The Association is built with the purpose of focusing on the development of the social character of law students. This is in order for them to be able to adapt to our ever-evolving society. We believe this in turn will improve the quality of future lawyers and the legal system in Sri Lanka.

The Association facilitates academic coordination and cooperation among the vast number of Sri Lankan law students receiving their education at various legal education institutions. This in turn helps establish, maintain contact and promote goodwill and collaboration between law students both locally and internationally.

SECRETARY LSASL VP of Academic Activities

SUBODHI WEERASEKARA EDITOR-IN-CHIEF AND ACADEMICS ACTIVITIES

ZAYNAH HARIS RESEARCH OFFICER

RIYASHA NIZAR RESEARCH OFFICER

SALMA SHERIFFDEEN RESEARCH OFFICER

NISURI RAJAKARUNA RESEARCH OFFICER

KALINDU DHARMAPRIYA PROGRAMS OFFICER

SADESH PIETERSZ WEB HANDLER

AMJATH HUSAIN WEBSITE MANAGER

SHANUKA KADUPITIYAGE EDITOR-IN-CHIEF LSASL

NAADHIRA GHAFFOOR ENGLISH EDITOR

AKEELA SHADHIQUE ENGLISH WRITER

TAMIL EDITOR

MANDULI PERERA SINHALA WRITER

MESSAGE FROM THE PRESIDENT OF THE LSASL 2022/2023

The Law Students' Association of Sri Lanka was established under the patronage of the eminent professor C.J. Weeramantry to represent all the law students in the country. One of the most important goals of the association has been to enhance the academic writing and research skills of students.

The Academic Activities department has been facilitating this goal with numerous initiatives over the past few months. This magazine and the webinar series which is their latest initiative is a great platform for students to express their thoughts and provide valuable articles for the law students fraternity in the country while enhancing their knowledge from industry professionals. The topic for the first ever webinar series and the magazine is very timely and was indeed a much needed discussion. I believe that this would create more discussion and create a positive impact in the society.

I wish the academic activites department headed by Subodhi Weerasekara and her team comprising of Kalindu, Riyasha, Salma, Nisuri, Sadesh, Amjath and Zaynah all the very best with this new initiative.

I hope all of you will enjoy reading this magazine!

Geilee Skandakumar President of LSASL 2022/2023

MESSAGE FROM THE EDITOR-IN-CHIEF AND SECRETARY OF

THE ACADEMIC ACTIVITIES DEPARTMENT 2022/2023

It gives me great pleasure and privilege to announce the launch of the first-ever issue of the ‘LSASL Magazine’ with the theme ‘Animal Rights and the Duty of the Legal Fraternity'. This milestone not only serves as a platform to amplify the importance of animal rights within the legal system but also provides an opportunity to engage and inform the legal community and the public. With this initiative, we hope to open the door to much-needed discussions on the subject.

It is indeed an epochal event in the long history of the LSASL, and it is my good fortune to be associated with the event.

It was the dedication of several individuals that led to the success of the LSASL Magazine. It is my pleasure to take this opportunity to express my gratitude to all of them.

My first and foremost thanks go to the members of my department who played a significant role in the creation of the LSASL Magazine

Furthermore, I would like to extend a special thank you to the Editorial Department and Media Department for collaborating with the Academic Activities Department in the development of this magazine.

Lastly, I would like to express my deepest gratitude to all contributors for their generous contributions to our magazine on behalf of the Academic Activities Department.

I hope the launch of this inaugural issue is the stepping stone to many more issues in the coming years.

Subodhi Weerasekara Editor-in-Chief of Issue I of the LSASL Magazine Academic Activities Secretary of LSASL 2022/2023

MESSAGE FROM THE EDITOR-IN-CHIEF LSASL 2022/23

Dear Readers,

As you read through this magazine, you will encounter a carefully curated selection of articles, including works from the esteemed Dr. Jagath Gunawardana and Dulki Seethawaka, along with contributions by our fellow law students in Sri Lanka, all sharing valuable insight into how the legal fraternity can contribute to the struggle against animal cruelty in Sri Lanka. I, and the Editorial Department of the LSASL extend our warmest congratulations for the launch of the inaugural edition of the LSASL magazine and commend their decision to highlight this pressing topic.

Given the nature of a lawyer’s occupation, it is far too easy to find our empathy replaced by apathy, and it is my hope that the selected articles included in this edition will help you, dear reader to discover new perspectives and broaden existing ones.

As aptly put by Dr. Jane Goodall, “The least [we] can do is speak out for those who cannot speak for themselves.” In a nutshell, as future lawyers and advocates, this is literally in our job description!

I take pride in knowing that our voice can extend to the protection of all living beings.

As the Law Students’ Association of Sri Lanka (LSASL), we are committed to facilitating meaningful involvement, community engagement and leadership development of all law students across the country. It is my wish that this magazine be a spark to create more discussion in the protection of animal rights within our law student fraternity.

To quote Dr. Goodall once again, “I do have reasons for hope: our clever brains, the resilience of nature, the indomitable human spirit, and above all, the commitment of young people when they’re empowered to take action.”

Thank You!

Shanuka Kadupitiyage EDITOR-IN-CHIEF - LSASL

CONTRIBUTIONS

Credit: -Irina-Zhur

CURBING THE ILLEGAL WILD ANIMAL TRADE

Dr. Jagath Gunawardana1

The term “Wildlife Trade” means the trade in wild animals, wild plants, their parts, and products. Trade in this context may mean the trade within Sri Lanka, exports and imports. This trade can be both legal and illegal. The term “Wildlife Trafficking” is used to denote the illegal trade in wild animals and wild plants. Trade in wildlife is considered “illegal” when it is carried out in contravention of the enactments of the country. The illegal wildlife trade is a major issue in the protection, conservation, and even the very survival of the species.

The internal component of the illegal wildlife trade in Sri Lanka is mainly centered on the flesh of protected species, referred to by some as ‘bushmeat’. This overwhelming component is comprised of mammals and includes well known species such as Spotted Deer, Barking Dear, Sambar deer, and 31, which is an Indian Pangolin. The reptiles that are mostly used in illegal trade are the five species of sea turtles (Green, Olive Ridley, Leatherback, Hawksbill, and Loggerhead)and two species of tortoises (Softshelled Terrapin and Parker’s Terrapin), and the crocodiles (Salt-water and Mugger).In addition, certain species of birds are killed, but it does not happen on a large scale. There is also the illegal sale of turtle eggs and the selling of the eggs of the Large Crested Tern.

The Fauna and Flora Protection Ordinance has protected majority of the mammals, reptiles, and birds found in Sri Lanka. According to Sections 30 (mammals and reptiles) and 31 (birds), it is illegal to kill, hunt or injure and keep any such animal or part in the possession or custody, and to sell or offer for sale any such animal or part. The provisions of Sections 30 and 31 have two categories of protected species, namely “Protected” and “Strictly Protected”. The strictly protected categories are given more protection by having stringent punishments.

According to the lists of Strictly Protected Species, there are 20 mammals,18 reptiles, and 63 birds. It is seen that some marine mammals, notably the Dugong and the smaller whales and dolphins are also butchered for their flesh. This trade which was widespread three decades ago is now mostly under control. All marine mammals are protected and eight species including the mostly hunted Dugong are in the Strictly Prohibited category.

The most controversial aspect of the illegal wildlife trade comprises exports. Although the flesh of mammals is not exported, a notable illegal trade is an illegal trade in the scutes (scales) of the Indian Pangolin. The trade of Pangolin scutes is a major threat to pangolins throughout the world due to which the Indian Pangolin found in Sri Lanka is placed in the Strictly Protected category.

The major categories of illegally exported species are tortoises, lizards, snake amphibians, and fishes which are rare endemic species being especially targeted. The Star Tortoise is one of the most highly prized tortoises in the trade and the sub-species found in Sri Lanka is having a much higher demand than the sub-species found in India. This is because it is more colourful and has well-defined palmate (star) patterning on the upper part of the shell or carapace.

The illegal trade is based mainly on smaller individuals. Another major component in illegally traded reptiles is the lizards, and the Horned Lizards (Ceratophora genus) and the Lyre Head Lizard (Lyriocephalusscutatus) have the highest demand. These are rare endemic species that are confined to specific areas and threatened with extinction. The genus Ceratophorais endemic to Sri Lanka and is the only genus that is strictly protected.

A very unusual item that is illegally exported from Sri Lanka is the nest of the Indian Swiftlet (Collocalia unicolor). This bird nests communally inside caves and has the unusual habit of making the nests with its saliva. The saliva of this bird is comprised of proteins and the nest is made into various food items, the ‘Bird’s nest soup’ being the most famous food item. These nests, which were a traditional food and medicinal item of the Chinese are mostly exported to Europe and USA at present. This is a protected species of birds according to Section 31 of the Fauna and Flora Protection Ordinance and hence the collecting, keeping in possession or custody, and sale of these nests are all offenses and anyone engaged in these can be apprehended too.

The provisions of Section 40 of the Fauna and Flora Protection Ordinance have made it mandatory to obtain a permit from the Department of Wildlife Conservation for the export of any animal or part of an animal. This provision applies to both the protected and non-protected species. Thus, anyone who tries to export any part of a non-protected species such as the shells of land snails too has to obtain a permit. These permits are issued only for scientific and conservation purposes and also for the exchange of specimens between zoological gardens and museums. This section makes it clear the permits are not issued for any trade of wild animals or parts. The provisions of Section 40 can be enforced by the Sri Lanka Customs and can be implemented as if they are part of the Customs Ordinance.

Another important provision that is intended to curb illegal trade is Section 30 of the Fisheries and Aquatic Resources Act. According to Section 30, the minister in charge of the subject of fisheries can make regulations to prohibit or restrict the export of any “fish” or “aquatic resource” The term fish, as defined under Section 66 of the act, means all aquatic animals and covers all forms varying from corals to whales.

There have been regulations made from time to time and have prohibited the export of certain species of freshwater and marine fishes including the Orchid Shrimp too. Those species that need a permit for their export are deemed to be “restricted,” as the Department of Fisheries and Aquatic Resources can impose controls in issuing permits for exports. The export of Spiny Lobsters, Chank Shells, and Sea Cucumbers are also controlled by these provisions. Section 30 can also be considered part of the Customs Ordinance making the enforcement more effective.

The third component in the illegal trade of wild animals is illegal imports. This is mainly the import of birds and fishes but it also includes other categories such as tortoises, newts, salamanders, and invertebrates. The import of any animal to Sri Lanka can be done only under a permit issued under Section 37 of the Fauna and Flora Protection Ordinance. Thus, all imports carried out in contravention of this provision are illegal.

The provisions of Section 37 can also be enforced by Sri Lanka Customs as it was a part of the Customs Ordinance. The provisions of Section 30 of the Fisheries and Aquatic Resources Act empowers the minister in charge of the subject of fisheries to make regulations to prohibit the import of any “fishes.” There are three sets of regulations under this section, prohibiting the import of thirteen species of Piranhas, five species of Bullhead Catfishes, and six species of Knife fishes. These provisions can also be considered as part of the Customs Ordinance making the enforcement more effective.

It is evident that there are sufficient legal provisions in Sri Lanka to curb all three aspects of the illegal wildlife trade. However, it is also evident that all these offenses are still happening, though certain aspects of illegal trade have been controlled satisfactorily. The most basic issue is the insufficient manpower in the enforcement institutions, followed closely by insufficient training and facilities. Corruption, politics, and other unwanted influences also play a part in hindering the enforcement of these laws. Another malaise is apathy and lethargic attitudes exhibited by certain officials.

However, all of us, being members of the public, can play a vital role in curbing the illegal wild animal trade. The first and foremost is to know how to identify the animals and the parts that are traded, an ability that can and has been a great help to law enforcement officials. Another vital area of knowledge is to know the relevant provisions of the different enactments and regulations made under them and the species that are cited in them.

Yet another step is to lobby the different institutions to make them enforce the provisions more effectively and efficiently and to bring hitherto unprotected species under protection when and if needed. Public awareness plays a very important role in curbing illegal trade in wild animals and all different aspects need to be covered in these awareness activities.

The Wild animals found in Sri Lanka, endemic or not, are a part of our natural resources and heritage too. Therefore, each one of us has a role and responsibility in ensuring the survival of these wild animals. The need of the hour is to get a thorough knowledge and help the enforcement of these different provisions in the different enactments to prevent the extinction of wild animals and to help ensure the survival of the wild animals.

DUTY OF THE LEGAL FRATERNITY AGAINST ANIMAL CRUELTY IN SRI LANKA

Dulki Seethawaka2

From ancient times to the present, animals have been continuously exposed to various human-induced cruelties owing to the close association they share with humans. However, the contemporary environmental debate has emphasised the necessity of protecting nature and all its components including animals. As a result, many nations have implemented legislative frameworks to safeguard animals and their welfare. This article attempts to review the legal protection granted to animals against cruelties in Sri Lanka and evaluate the role of the legal fraternity in protecting them.

THE LINK BETWEEN ‘CRUELTY TO ANIMALS AND ANIMAL WELFARE’

There are two main observations relating to animal cruelty. Firstly, an animal is exposed to humaninduced cruelty if it is dependent on human care. Examples are domesticated and captive animals. Secondly, a person can cause cruelty to an animal either deliberately or negligently. For instance, a person can deliberately starve a pet, or negligently cause it to starve without any intention.

The early definition of cruelty to animals focused on the infliction of physical harm by causing unnecessary pain and suffering to animals. However, with the advancement of science, animals are now recognised as sentient beings. Accordingly, cruelty to animals in the present context is expanded to include both physical and mental harm, and protecting them against cruelty demands the protection of both the physical and mental well-being of animals. This is also known as the concept of animal welfare.

The five freedoms definition of animal welfare has already gained acceptance from various animal welfare organisations and academics all around the world. It can be elaborated as follows:

(1) Freedom from thirst and hunger - by ready access to fresh water and a diet to maintain full health and vigour.

(2) Freedom from discomfort - by providing an appropriate environment including shelter and a comfortable resting area.

(3) Freedom from pain, injury, and disease - by prevention or rapid diagnosis and treatment.

(4) Freedom to express normal behaviour - by providing sufficient space, proper facilities, and company of the animal’s kind.

(5) Freedom from fear and distress - by ensuring conditions and treatment which avoid mental suffering.’3

2 M.Phil. (Reading) (Colombo), LL.M. (Colombo), BA in Interior Design (Hons) (Northumbria), LL.B. (Hons) (London), Postgraduate Diploma in Animal Welfare (Reading) (India). Senior Executive Researcher, Centre for Environmental Law, and Policy (CELP), Faculty of Law, University of Colombo Attorney-at-Law of the Supreme Court of Sri Lanka.

3 Barry Bousfield and Richard Brown, ‘Animal Welfare’ (2010) 1 Veterinary Bulletin – Agriculture, Fisheries and Conservation Department Newsletter https://www.afcd.gov.hk/tc_chi/quarantine/qua_vb/files/AW8.pdf accessed 09 February 2023.

Several nations including the United Kingdom have duly recognised animal sentience, and enacted legal frameworks based on animal welfare to protect animals against cruelty.

ANIMAL PROTECTION LAWS IN SRI LANKA

Sri Lanka is known to be a country which has had compassion for animals since the times of the ancient kings.4 The trusteeship of the State held by the king was extended to safeguard all living beings including birds and animals.5 There are ample examples of the royal commands to protect animals which are found in historical rock inscriptions and ancient Sri Lankan chronicles.6 However, the protection of animals was considered as an utmost duty of both the ruler and the people,7 and people treated animals with care and affection not only as a legally bound duty but also as a moral duty.8 This was primarily because the dayto-day lives of the citizens were interconnected with animals who fulfilled various chores to assist their owners and caretakers. However, foreign invasions, urbanisation and industrial development changed the eco-friendly lifestyles of people vastly affecting the treatment of animals9 and the disparity continues to date.

The cornerstone of the existing legal protection granted for animals in Sri Lanka was established by enacting the Prevention of Cruelty to Animals Ordinance, No. 13 of 1907 (hereinafter referred to as PCAO 1907). At the time it was implemented, the Ordinance addressed several cruelties to animals. Anyhow, the PCAO of 1907 is no longer adequate to supplement the global developments in animal protection laws. Firstly, the Ordinance mainly facilitates the protection of animals from human-induced physical cruelty since it was implemented before the concept of animal welfare was formally introduced. Secondly, the archaic provisions that were incorporated in the Ordinance are 117 years old and have not been amended after 1955.10

Addressing a major gap in the animal protection jurisprudence in Sri Lanka, the first-ever animal welfare act to replace the PCAO of 1907 was proposed by the Law Commission in 2006. Among many new improvements, the Animal Welfare Draft Bill of 2006 (hereinafter referred to as AWDB of 2006) redefined the meaning of animals to include street animals, mandated the registering of breeding businesses, constituted the National Authority on Animal Welfare subject to many design-making and enforcing powers and established the duty of care owed by the owner or caretaker to an animal which is

4 CG Weeramantry, ‘Separate opinion of Vice-President Weeramantry’, HungaryvSlovakia[1997] 97/10.

5 ibid; ‘The ancient chronicles record that when the King (Devanampiya Tissa, 247-207 BC) was on a hunting trip (around 223 BC), the Arahat Mahinda, son of the Emperor Asoka of India, preached to him a sermon on Buddhism which converted the King. Here are excerpts from that sermon: “O great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; though art only the guardian of it.”’

6 Senaka Weeraratna, ‘Animal Welfare Legislation in Sri Lanka’ (2003) Law Commission of Sri Lanka CommemorativeLawJournal.

7 ‘Conservation in ancient Sri Lanka’ (SriLankaBiodiversityClearingHouseMechanism, 2017) http://lk.chmcbd.net/?page_id=178 accessed 09 February 2023; ‘Respect for forests and all forms of animal life was thus not only deeply enshrined in the moral & legal codes of the ancient Sinhalese, it was also part of their way of life.’

8 Sean Mos, ‘Reinstating animal rights in Sri Lanka’ (BDG, 30 June 2016) https://www.buddhistdoor.net/features/reinstating-animal-rights-in-sri-lanka/ accessed 09 February 2023.

9 ‘Conservation in ancient Sri Lanka’ (n 5).

10 Maleesha Pasqual, ‘A better approach to animal welfare law; A critical analysis of the law on prevention of cruelty to animals in Sri Lanka’ (2018) 11th International Research Conference, General Sir John Kotelawala Defence University http://ir.kdu.ac.lk/bitstream/handle/345/2572/Law%20new_8.pdf?sequence=1&isAllowed=y accessed 09 February 2023.

in his care. Although, the enactment of the AWDB of 2006 was delayed for various reasons and the Bill underwent substantial changes over the span of seventeen years.

After numerous revisions and several unsuccessful attempts to implement the Bill, the Animal Welfare Bill of 2022 (hereinafter referred to as AWB of 2022) was gazetted on 7 February 2022 after receiving cabinet approval. It was reported that the Bill reached the stage of second reading at the Parliament on 17 May 2022.11 The AWB of 2022 resolves the weaknesses of the PCAO of 1907 by increasing the number of anti-cruelty provisions, imposing severe penalties, extending the time limit of prosecution for one year, and providing guidance on caring for an animal which has been forfeited. Yet, there are gaps and ambiguities, and instances which amount to cruelty against animals in Sri Lanka but are not duly considered within the ambit of the AWB of 2022. Furthermore, upon closer analysis of the AWB of 2022, it becomes evident that some of the important provisions that were included in the AWDB of 2006 have been deliberately removed.

DUTIES OF THE LEGAL FRATERNITY IN SRI LANKA IN PREVENTING ANIMAL CRUELTY

Against this backdrop, it is essential to expand and diversify the duties of the legal fraternity to protect animals in Sri Lanka. As members of the legal fraternity who share compassion towards animals and their suffering, they can significantly contribute to safeguarding animals in their respective capacities.

First and foremost, there are several instances where the judiciary can influence the protection of animals. The judiciary holds the important responsibility of balancing the rights of humans and protecting the animals from any violence or negligence of humans which can give rise to conflicts. Thus, the judiciary applies the existing laws against those who have treated animals cruelly and punishes them according to the law. If there are any misinterpretations of the legal provisions or comprehensive terminology, then the judiciary helps to interpret such laws as per the legal intention. This is also noteworthy because animals cannot communicate about their sufferings and the offenders might take undue advantage of legal provisions to justify their acts.

Furthermore, the judiciary identifies the situations where the laws are not adequate and mandates the relevant authorities to either amend such laws or replace them with new laws, thereby emphasising the necessity of adequately protecting animals and their rights. This is extremely important because the laws require to be updated particularly relating to animals since the types of animal cruelties continue to change over time. The judgements issued by the judiciary, particularly in the higher Courts after carefully analysing the legal

11 ‘Order paper for Parliament for Tuesday, May 17, 2022 at 10.00 a.m.’ (17 May 2022) https://www.parliament.lk/uploads/documents/orderpapers/1652696631022422.pdf accessed 09 February 2023.

provisions are considered judicial precedent, which is capable of influencing the decisions that would be made in the lower Courts.12 The significant role played by the judiciary in the animal protection debate in Sri Lanka

was recently confirmed by the Court of Appeal in CA WRT 423/21 by recognising the rights and sentience of elephants for the first time in Sri Lanka.13

The next most important role is played by the academics who can educate the next generation of the guardians of animals and their rights in Sri Lanka. They can pave the way in introducing animal protection laws within the legal curriculums, instil the law students to treat animals compassionately and encourage them to represent animals in their various legal careers. Their contribution to this vastly evolving legal division can make the most valuable impact in protecting the animals in Sri Lanka.

Yet another important role is played by the legal researchers who conduct comparative research to identify the gaps and weaknesses in the existing legal protection granted for animals in Sri Lanka and demonstrate the necessity of developing the legal frameworks compared to the global developments. For instance, constitutional protection is the highest protection available to animals in a country which can be granted as fundamental rights, directive principles of state policy and fundamental duties.

Several nations including India, Brazil, Switzerland, Slovenia, Germany, Luxemburg, Austria, and Egypt have adopted constitutional protection to oblige the state to protect animals and their interests.14 However, animals are not recognised in the Constitution of Sri Lanka. Furthermore, it was discussed that compared to other nations, the existing and proposed legislative framework to safeguard animals in Sri Lanka can be further developed.

Other members who contribute to safeguarding animals in Sri Lanka include advocates who represent animals and their rights, animal welfare and rights activists who raise their voices against animal cruelties, legal consultants and experts on animal welfare who advise the laws and policies which are drafted to protect animals and legal professionals who encourage multidisciplinary approaches in animal protection such as providing scientific and other evidence on animal sentience and preventing cruelty to animals.

CONCLUSION

This article first gave an overview of the past, present and proposed laws to protect animals against cruelty in Sri Lanka. Despite having a rich history where animals were treated with care and respect, the present legislative frameworks to protect animals in Sri Lanka have failed to meet the standards and developments in the international arena. Hence, as compassionate human beings, the members of the legal fraternity hold an important responsibility in creating a better future for animals in Sri Lanka.

12 Jason Gordon, ‘Role of the Judiciary in the legal system’ (The Business Professor , 2021) https://thebusinessprofessor.com/en_US/us-legal-system/role-of-the-judiciary-in-the-legal-system accessed 09 February 2023.

13 Lakmal Sooriyagoda, ‘Releasing of elephants to claimants suspended: CA says court is mindful of cruelty to elephants’ (DailyMirror , 27 November 2022) https://www.dailymirror.lk/breaking_news/Releasing-of-elephants-toclaimants-suspended-CA-says-court-is-mindful-of-cruelty-to-elephants/108249410?fbclid=IwAR1W1ouqxFgGVWND44ldpneRzB-aw7yorzjImRgdT_F2roGlcdVrnciF_L4 accessed 09 February 2023; see also ‘CA WRT 423/21 – The case against the releasing of elephants and the regulations of tamed elephants registration’ (Ejustice , 03 October 2021) https://ejustice.lk/ca-wrt-423-21-the-case-against-the-releasing-ofelephants-and-the-regulations-of-tamed-elephants-registration/ accessed 09 February 2023.

14 Jessica Eisen, ‘Animals in the constitutional state’ (2018) 15 (4) International Journal of Constitutional Law 909954.

EVERY LIVING BEING HAS THE RIGHT TO BE FREE FROM CRUELTY: RETHINKING THE LAW TO RAISE A VOICE FOR THE VOICELESS

Isuru Prabhath15

Introduction

Sri Lanka still has a chance to be a great nation within the meaning of Mahathma Gandhi's interpretation that the greatness of a nation and its moral progress can be judged by the way its animals are treated. Even though Sri Lanka has a long tradition of kindness and empathy for animals from the ancient time when King Devanampiyatissa accepted Buddhism, created the first animal reservation, and outlawed hunting, Sri Lankans, unfortunately, lost their kindness and empathy for all creatures since when the Colonists invaded and encouraged its subjects to drink alcohol, eat meat and embrace alien cultural practices and religions.16

As Anver pointed out Sri Lanka has laws in place to prevent cruelty towards animals. Few people pay attention to this, however, and animal cruelty continues.17 That law is the Prevention of Cruelty to Animals Ordinance18 (Amended by Act no. 22 of 1955) enacted in 1907, during the British colonial era. It is quite obvious that the Ordinance (Hereinafter referred to as PCAO) which is still in force in the island does not suffice to give effect to its primary consideration, i.e., prevention of cruelty to animals. In consequence, the Animal Welfare Bill (Hereinafter referred to as AWB) come to replace the PCAO in 2006, albeit approved by the Cabinet is not yet passed by the Parliament. That was resulted in refraining the opportunity to have a more comprehensive, stronger and effective legal regime to deal with the issue pertaining to the best interests of the animals.19

This article, therefore, purports to compare the existing law with the new Bill in order to highlight the contribution of the AWB to upholding animal rights and welfare in Sri Lanka. It also discusses some practical issues that cease the Bill from becoming law on the island.

Do animals really have rights?

Frey argues that animals are not the kinds of beings that can have interests or rights.20 Aquinas is of the view that animals exist for human purposes. The early approach to the field of animal rights and welfare is quite simply that the law considers animals as property in response to the belief that humans are entitled to own animals.21 Talking, therefore, of animal rights in such a context is a mere mockery.

15 Undergraduate LL.B. Faculty of Law, University of Colombo

16 Minoli de Soysa, ‘Has the Animal Welfare Bill Fallen by the Wayside?’ (GROUNDVIEWS , 2 May 2021) <Has the Animal Welfare Bill Fallen by the Wayside? – Groundviews> accessed 1 February 2023

17 MH Pasqual, ‘A better approach to Animal Welfare Law; A Critical Analysis of the Law on Prevention of Cruelty to Animals in Sri Lanka’ 11th International Research Conference, General Sir John Kotelawala Defence University, 48

18 No 13 of 1907

19 Thebestinterestsoftheanimalinclude the health, safety and well-being of an animal.

20 R.G. Frey, InterestsandRights:TheCaseAgainstAnimals(Oxford: Clarendon Pr., 1980) at 83- 110

21 Marie Blosh, TheHistoryofAnimalWelfareLawandtheFutureofAnimalRights (Electronic Thesis and Dissertation Repository 2012) 6

However, when society evolves the law develops to substitute animals with legal personhood. Several scholars attempted to establish the idea that animals are also living creatures. The mindset of considering animals as mere property, therefore, deviated to some extent and start to talk about animal rights and welfare. In this backdrop, Lord Thomas Erishkine introduced the Animal Protection Bill in 1809, an entirely different type of Bill, entitled anActtopreventmaliciousandwantoncrueltytoanimals. He further argues that animals are much similar to humans in terms of organs, feelings, and senses.22 Grey Francione declares that animals only need one right, the right not to be property.23

When we turn back to religious teachings, the Lord Buddha, for instance, has mentioned that everyone is afraid of punishment. Life is dear to all. That is why you should not think of yourself as a parable and others should not perish, in Dhammapadayaat DhandaWaggaya . 24 Also, in the CakkavattiSihandaSutta of the DighaNikaya , the Buddha stated directly that it is the responsibility of the ruler of a country to safeguard the welfare of all beings under his rule, including animals and birds.

The modern approach, therefore, accepts that animals have legal rights. Germany, for example, improved its law in 2002 accepting the fact that animals can still be owned, but their interests as something more than property have been acknowledged. Nevertheless, the law pertaining to animal welfare in Sri Lanka does lag, still believing in the early view that mistreating an animal could be a legal matter, but only if it resulted in an economic loss to the animal’s owner or caused some other harm to humans. But the drafted Bill goes beyond that imposing a ‘legal personhood’ on animals. That is why it is crucial to give effect to the Bill in order to secure the welfare of these innocent creatures.

Why does Sri Lanka need a law beyond the PCAO?

The fact that the PCAO which was enacted about a century ago is not at all adequate to address the issue of cruelty to animals is now an open secret. Vositha Wijenayake, Convener of the Animal Welfare Coalition of Sri Lanka declared that the current law dates back to 1907 and lacks in deterrent effect which prevents the protection of animals against cruelty.25 Lalani Perera, an animal welfare advocate and member of the Animal

22 “… nature has taken the same care to provide, and as carefully and bountifully as for man himself, organs and feelings for [the animals’] own enjoyment and happiness. Almost every sense bestowed upon man is equally bestowed upon them; seeing, hearing, feeling, thinking; the sense of pain and pleasure; the passions of love and anger; sensibility to kindness, and pangs from unkindness and neglect, are inseparable characteristics of their natures as much as of our own.”

23 Gary L. Francione, RainWithoutThunder:TheIdeologyoftheAnimalRightsMovement(Philadelphia: Temple Univ Pr., 1996)

25 MH Pasqual supra at 53

Welfare Steering Committee also accepted the same view and said that the law now in force is woefully inadequate to protect animals from cruelty.26

In a nutshell, the PCAO has limited the term ‘animal’ to any domestic or captured animal including any bird, fish or reptile in captivity.27 However, all living creatures other than human-beings are animals. The PCAO, therefore, aims not to “make provisions for the prevention of cruelty to [all] animals” as mentioned in its preamble, but merely to certain types of that kind. But in a wider sense, the AWB interprets ‘animal’ as all sort of living beings other than humans including, interalia , domestic, captivated and wild animals.28 This interpretation would perhaps lead Sri Lanka to ensure the welfare of every animal being despite its size, use or nature.

The penalty imposed by the PCAO for those who treat animals cruelly is also significantly less, “afine whichmayextendtoonehundredrupees”. In consequence, how the Ordinance may prevent the cruelty to animals which is the mandate of enacting this law rests highly problematic. It clearly highlights the fact that the purpose of enacting such legislation is, ipsofacto , in vain. Ball argues that, in the first place, a law to have a deterrent effect depends upon the knowledge of a would-be offender of that law and its possible punishments, otherwise the law would have no deterrent effect at all.29 The existing law in Sri Lanka with regard to animal welfare has, therefore, no deterrent effect to protect them from cruelty in order to uphold their rights. The AWB, being however in line with current social conditions imposes adequate penalty against cruelty to animals and accordingly it ensures the objectives in its preamble “toprovideforthe protectionofanimalsfromcruelty,tofosterkindness,compassionandresponsiblebehaviortowards animalsinthecommunity…”.

Apart from the flaws in the PCAO, the AWB has introduced some unique provisions to protect animal rights. One of the objectives of the Bill is “to establish a National Animal Welfare Authority…”30 (Hereinafter referred to as NAWA). It seems to be the essence of this law which is codified in the third part of the Bill. If an animal rights violation case is reported, this authority can be held responsible. This automatically ensures that the authority performs its duties with due diligence to be exempt from liability.31

Are there sufficient grounds to prevent the Bill from being passed in Parliament?

Although the creation of a National Animal Welfare Authority as mentioned above is ideal for protecting animal rights, there is some problem in establishing it. Sri Lanka is not economically rich enough to establish a separate authority for animal rights at a time when even human rights are being violated in the

26 Minoli de Soysa (supra)

27 The Prevention of Cruelty to Animals Ordinance, No 13 of 1907, s.14

28 Animal Welfare Bill, s.80 –“animalmeansanylivingbeingotherthanahuman-beingandincludesadomestic animal,afarmanimal,ananimalincaptivity,awildanimal,acompanionanimal,astrayanimalandafoodanimal ashereinafterdefined”

29 John C. Ball, Deterrence Concept in Criminology and Law, The, 46 J. Crim. L. Criminology & Police Sci. 347 (1955-1956) 347-54

30 Animal Welfare Bill, s.2(d)

31 Read sections 16, 24(k), 65, 66 and 67 of the AWB together. Section 16 provides the functions of the NAWA and all of them are mandatory given that it associates the word “shall” instead of “may”. Section 24(k) reads as “causesunnecessarypaintoananimalbyanyotherwillfulactoromission”, where the term ‘omission ’ suggests the omission by the owner of the animal or by the NAWA. The Bill does not remain any loophole and does impose liability for the offences which are not expressly mentioned in it via section 66, and the section 67 makes the directors or officers of body corporates, firms including the NAWA vicariously liable in case of a violation of animal rights mentioned in the Bill subject to the exception mentioned in its proviso.

face of the current economic crisis. The national income of Sri Lanka is not sufficient for the establishment and

maintenance of the authority as well as the salary payments of its staff. Especially as a developing country, Sri Lanka does not have a practical environment to focus on other things rather than its people. Therefore, an alternative solution that can be given in addressing this problem is to subordinate these functions and powers to the Sri Lankan Human Rights Commission until a separate authority is established through the adoption of the Bill. This can be solved by deploying a group of employees working there for animal rights and welfare.

According to section 24 of the Bill, a person who tortures or otherwise treats an animal so as to subject it to unnecessary pain shall be guilty of an offence. Section 80 interprets the term ‘animal’ including ‘animal in captivity’. “Animal in captivity means an animal kept in a zoo or circus or other situation of confinement…” . The Bill also interprets the term ‘pain’ as distress and mental or physical suffering. Every animal whose freedom is restricted suffers mentally. So, if this Bill becomes law, the zoo will no longer be able to run. But the problem is that there are certain animals that would not exist without zoos like the chicken frog, scimitar-horned oryx, European bison, Lesser-White fronted Goose and Przewalskis wild horse.32 Therefore, it is necessary to look for alternatives before passing the Bill.

Politics also affects the non-passing of this draft legislation. As Venerable Siridhamma Thero clearly pointed out one cannot expect a country to prevent violation of animal rights as long as animal lives are sacrificed for meat production.33 Hence, animal cruelty such as cow slaughter by minorities will come to an end once this becomes the law. So, it is more likely that the politicians would not support the Bill as they fear losing minority community votes.

It is worth, therefore, addressing all these issues to give effect to this draft which is the need of the hour. For that, it is necessary to conduct further research in this field.

Conclusion

In the past, animals were considered the property of humans, but now many countries have recognized the legal rights of animals. However, the fact that Sri Lanka continues to rely on an Ordinance enacted many years ago is a notable shortcoming of its law. It is a mere nominal piece of legislation in the protection of animal rights and especially in the prevention of cruelty against animals. With the intervention of many animal rights activists, Sri Lanka enacted the Animal Welfare Bill in 2006, showing that Sri Lankan law was keen to move on a progressive path for animal rights. Nonetheless, all those efforts were in vain as this was not passed in Parliament. In order to protect animal rights and demonstrate Sri Lanka’s compassion towards animals to the world and gain international recognition, this draft must become a law. Before that, it is essential to take off the practical weaknesses of this draft, find alternatives to those problems and create a suitable background to make this a law.

References

Primary Sources

32 Rickard Sjödén, ‘5 animals that wouldn’t exist without zoos’ (zoospencefull) <https://zoospensefull.com/5-animalswouldnt-exist-without-zoos/> accessed 14 February 2023

33 Sean Mos, ‘Reinstating Animal Rights in Sri Lanka’ (BuddhistdoorGlobal , 30 June 2016)

<https://www.buddhistdoor.net/features/reinstating-animal-rights-in-sri-lanka/> accessed 1 February 2023

Statutes

• Animal Welfare Bill, 2006

• The Prevention of Cruelty to Animals Ordinance, No 13 of 1907

Secondary Sources

Books

• Blosh M, TheHistoryofAnimalWelfareLawandtheFutureofAnimalRights (Electronic Thesis and Dissertation Repository 2012)

Journal articles

• Ball JC, Deterrence Concept in Criminology and Law, The, 46 J. Crim. L. Criminology & Police Sci. 347 (1955-1956)

• Pasqual MH, ‘A better approach to Animal Welfare Law; A Critical Analysis of the Law on Prevention of Cruelty to Animals in Sri Lanka’ 11th International Research Conference, General Sir John Kotelawala Defence University

Websites

• De Soysa M, ‘Has the Animal Welfare Bill Fallen by the Wayside?’ (GROUNDVIEWS , 2 May 2021) <Has the Animal Welfare Bill Fallen by the Wayside? – Groundviews> accessed 1 February 2023

• Mos S, ‘Reinstating Animal Rights in Sri Lanka’ (Buddhistdoor Global , 30 June 2016)

<https://www.buddhistdoor.net/features/reinstating-animal-rights-in-sri-lanka/> accessed 1 February 2023

• Sjödén R, ‘5 animals that wouldn’t exist without zoos’ (zoospencefull)

<https://zoospensefull.com/5-animals-wouldnt-exist-without-zoos/> accessed 14 February 2023

SOME RECENT TRENDS IN THE LAW RELATING TO ANIMAL WELFARE AND THE ROLE OF THE LEGAL FRATERNITY IN SRI LANKA

Dr. Avanti Perera34

We tend to use the expression “animal rights” because we are most familiar with human rights. However, I wish to focus on the law relating to animal welfare , rather than animal rights . Animal rights is a philosophy propounding that animals are not meant for use by humans in any context, whereas animal welfare recognizes ownership of animals, but promotes care and protection towards them. Animal rights activists lobby for equality between animals and humans, so that animals are not used for food, clothing or any other human necessity, while animal welfarists, on the other hand, lobby for humane treatment of animals, even in circumstances where the end-result maybe slaughter of animals. Expecting the law to compel people to be vegetarian or vegan in every sense, i.e. by prohibiting, for instance, the eating of animals, wearing of animal products and using of animals for scientific experiments, is a noble, but idealistic and impractical aspiration, except perhaps where endangered species of animals are concerned. The philosophy of animal rights, in its strict sense, is possibly seen to apply only to this narrow category of animals, generally found in the wild. Therefore, within the thematic perspective of animal rights and the duty of the legal fraternity, the first step is to discern what is meant by “animal rights” and to appreciate the reality of whether that is something that the law can ever fully achieve. As I pen this article for the quarterly magazine of the Law Students’ Association of Sri Lanka (LSASL), it is headline news that the incumbent Minister of Agriculture has granted permission to kill certain animals harmful to crops. The list includes monkeys, peacocks, grizzled giant squirrels, porcupines, and wild boars. In such a backdrop, animal rights in Sri Lanka continues to be an illusion. Nevertheless, let us at least explore the duty of the legal fraternity in respect of animal welfare in our country.

At the outset, it must be clarified that animal welfare is a cause like any other cause, such as children’s rights, women’s empowerment or environmental conservation, and no member of the legal fraternity owes a professional duty to be an advocate for any cause, other than the cause of justice. To take on a brief is a matter of choice, particularly for a member of the unofficial Bar, and an attorney-at-law who has a personal interest in a specific cause has the freedom to decide whether he wishes to dedicate his practice to that end. Such an attorney-at-law, if interested in animal welfare, can carve for himself a duty towards this cause and discharge that duty by engaging in advocacy, litigation and law reform on the subject. A member of the official Bar does not have the same freedom, as the Attorney General is the principal Law Officer of the State.35 Thus, if State policy is detrimental to animals, and if such policy is neither unlawful nor unconstitutional, he cannot be a defender of animal welfare. However, this by no means diminishes the significant part that the Attorney General can play in the domain of existing and proposed laws relating to animal welfare, as I discuss below.

34 D.Phil (Oxon); LL.M (Cantab); BA (English) (Colombo); Deputy Solicitor General, Attorney General’s Department. The views and opinions expressed in this article are solely those of the author in her personal capacity. 35 LandReformCommissionv.GrandCentralLtd.(1981) 2 Sri.L.R. 147 at 172.

The existing statutory regime relating to animal welfare comprises mainly of the Prevention of Cruelty to Animals Ordinance 1907 (Chapter 573), Fauna and Flora Protection Ordinance 1937 (Chapter 567) as amended and Animals Act, No.29 of 1958 as amended. These laws provide for, in some way, better treatment of animals and, hence, afford a degree of animal welfare. For instance, cruel treatment of any animal, including killing an animal in an unnecessarily cruel manner,36 the hunting, shooting, killing, wounding or taking any wild animal in a National Reserve37 and extending that prohibition in respect of elephants to areas outside a National Reserve or Sanctuary,38 and the slaughter of a cow (other than a cow imported for slaughter), unless that cow is certified by the appropriate authority to be not less than twelve years of age, or incapable of breeding, or unfit to be used for any agricultural purpose, except in accordance with regulations, and the slaughter of any cow-calf39 are offences. Where an offence in relation to an animal is committed and brought to the notice of the Magistrate, he may make an interim order pending the determination of the case, for such animal to be handed into the custody of an Animal Care Centre, a non-governmental organization concerned with animal welfare or a person whom the court is satisfied, is actively engaged in caring for animals; and, if upon conviction, an order is made confiscating the animal, the interim order may be confirmed.40 However, unlike the Constitution of India which has been interpreted by the Supreme Court of the India as extending its guarantees of fundamental rights, including the right to life, to animals,41 our Constitution which has been amended a record number of times in its less than 50-year history does not give express recognition to animal welfare. Yet, the duty of the State and the duty of all persons to protect the environment and nature (which would inarguably include animals) are found in Article 27(14) and Article 28(f) respectively. Similarly, although Sri Lanka acceded to the Convention on International Trade in Endangered Species (CITES) on 04th May 1979, there is no enabling domestic law to date which would result in any meaningful contribution by Sri Lanka towards this international mandate in respect of animal welfare.

There have also been some notable events in the judicial arena, advancing the cause of animal welfare in Sri Lanka. Among these are the decision of the Court of Appeal that a license issued under the Butchers Ordinance 1893 (Chapter 608) was required for sacrificial killing of animals at a religious festival in the Munneswaran Kovil and that such killing should not violate the provisions of the Prevention of Cruelty to Animals Ordinance,42 and the subsequent Order of the Supreme Court, dismissing the appeal by the Kovil authorities.43 Another was the assurance given to court by the Attorney General that the State would suspend gifting baby elephant “Nandi” to New Zealand.44 Yet another is the interim order granted by the Court of Appeal45 preventing any steps being taken under Regulations promulgated to interaliaregularize unlawful

36 Prevention of Cruelty to Animals Ordinance, ss 2, 3 and 4.

37 Fauna and Flora Protection Ordinance, s 6(1)(a).

38 Ibid, s 12.

39 Animals Act, s 2(1).

40 Ibid, s 3AA

41 AnimalWelfareBoardofIndiav.A.Nagaraja&Others,Special Leave Petition (Civil) No. 11686 of 2007 decided on 07.05.2014; StateofGujaratv.MirzapurMotiKureshiKassabJamat,(2005) 8 SCC 534.

42 SriBodhirajaFoundation&Othersv.M.Kanagaratnam,SriBhadraKaliAmmanKovil&Others, CA (Writ) Application No.510/2011 decided on 29.08.2013.

43 M.Kanagaratnam,SriBhadraKaliAmmanKovil&Othersv.SriBodhirajaFoundation&Others, S.C. Spl. L.A. No.258/2013 decided on 21.07.2014.

44 CA (Writ) Application No.777/10.

45 CA (Writ) Applications Nos.420/21, 423/21, 431/21 and 433/21, order dated 29.09.2021.

custody of elephants46 to release elephants who are the subject-matter of pending prosecutions instituted under the Fauna and Flora Protection Ordinance for unlawful custody of elephants to the very offenders themselves. In all these cases, filed by the Petitioners as public interest litigation, the members of the unofficial Bar, sometimes appearing probonoon behalf of Petitioners, demonstrate one of the ways in which the legal fraternity discharges a duty towards animal welfare. In fact, in the Munneswaran Kovil animal sacrifice case, even the Attorney General who represented the Inspector General of Police and other Respondent police officers did not resist the prayer for a writ of mandamus directing the police to take all necessary actions as permitted and empowered by law to prevent the cruelty and slaughter of animals taking place at the Munneswaran Kovil. This is an example of how the Attorney General, acting independently and without supporting any specific cause, other than that of administering justice, played a role in ensuring animal welfare, i.e. by facilitating the implementation of the existing law, the Prevention of Cruelty to Animals Act.

Another way in which the legal fraternity can discharge a duty towards animal welfare is by assisting in law reform on the subject. For instance, in 2002, it is the Law Commission of Sri Lanka under its Chairman at the time, Justice (Dr.) A.R.B. Amerasinghe, Judge of the Supreme Court, which first recommended an Animal Welfare Act. To this day, over 20 years after the Law Commission had prepared the initial draft of the Animal Welfare Bill, and since then the draft having undergone some amendments after extensive stakeholder consultations, court proceedings having been instituted to interaliaexpedite animal welfare law reforms including the passage of this Bill,47 the Attorney General having issued a certificate of constitutionality therefor, the Bill having been published in the Gazette and tabled in Parliament48 and not even challenged before the Supreme Court, Parliament is yet to take up the Bill for second reading.

Therefore, here is another example of where the Attorney General played a role in ensuring animal welfare, this time by facilitating the creation of new law. However, the duty to carry forward the Bill now lies beyond the legal fraternity. If, after executive and legal sanction, that duty has not been discharged to date, it can be attributed to one fact only. Animals do not have a vote, so their voice matters naught.

So, here we are with some illustrations of instances in which members of the legal fraternity, from both the official Bar and the unofficial Bar have discharged their respective duties within the fields of litigation and legislation, and thereby secured animal welfare. However, it is only the final outcome of pending litigation relating to animal welfare issues, such as the validity of Regulations made to regularize unlawful custody of elephants, the fate of the Animal Welfare Bill and the policy and legal implications of the recent Ministerial sanction give to kill crop-destroying animals, which will reflect the direction of Sri Lanka’s commitment to animal welfare. Until then, we will forever be a nation of many contradictions. A country boasting a Constitution which guarantees the world’s greatest religion of compassion, Buddhism, the foremost place,49 but with a populace, including those who profess to be “Buddhists” bound by the first precept to refrain from killing any living being, which daily consumes meat of animals inhumanely killed in slaughterhouses or illegal fishing methods. A country where, under the law, it is an offence to have custody of an elephant unless it is

46 Protection, Well-being and Regularization of Registration of Tamed Elephants Regulations No.01 of 2021 made under section 22A read with section 71 of the Fauna and Flora Protection Ordinance, and published in Gazette Extraordinary No.2241/41 dated 19.08.2021.

47 n11

48 The Gazette Supplement was issued on 07.02.2022 and the Bill was placed on the Order Paper of Parliament on 24.03.2022.

49 Article 9 of the Constitution.

registered and licenced50 and those elephants had been removed from the custody of alleged offenders upon court orders, but subordinate legislation was introduced permitting such offenders to register and regain custody of the same elephants.51 A country which has survived colonization, terrorism, natural disasters and political upheavals to reach 2023, but the primary law which governs animal welfare52 is over a century old and carries a maximum fine of Rs.100/- as punishment for offences committed thereunder. The duty of all attorneys-at-law in Sri Lanka, whether they be from the official or the unofficial Bar insofar as animal rights or animal welfare is concerned, is not to be activists themselves, but rather to uphold the scales of justice, whilst being mindful that all laws are and should be designed for the betterment of the State and that the State comprises its people AND its environment. After all, it is our fundamental duty in terms of Article 28(f) of the Constitution – not merely as lawyers, but as ordinary persons – to protect nature, and that duty would necessarily include a responsibility towards animal welfare.

50 Fauna and Flora Protection Ordinance, s 22A (1).

51 Regulation 5 of Regulations (n13) permits application for registration of an elephant that is in the custody of an owner but has not been registered as at the date of commencement of the regulations.

52 Prevention of Cruelty to Animals Ordinance 1907.

STATE OF ANIMAL WELFARE AND THE DUTY OF THE LEGAL FRATERNITY

Dr.Ravindranath Dabare53 and Thilini Attapattu54

As far as Sri Lanka is concerned, a considerable number of Acts and Ordinances have been imposed in different spheres. In Parliament, many discussions, arguments, and speeches are made on animal welfare. There even exists a rich debate about animal welfare in the present society

In analysing the issue, it is important to analyse the way, how these animals are treated by their masters.

“Thegreatnessofanationcanbejudgedbythewayitsanimalsaretreated.”

- Mahatma Gandhi –

This statement reflects the ethics, morals and attitudes of an individual who always respects the equal rights of all living creatures and beings. A social animal has the tendency to radiate limitless sense of kindness, sympathy and empathy to the animals who live in and around his premises for survival. Man by nature is capable of extending his bonds of love and care to the animals all around him.

It is the duty and the responsibility of the person who rears an animal to provide it with the basic and other physical as well as emotional needs and requirements for a happy and content life.

As far as the present setting is considered, it is a relief to see that the necessary legal requirements are being promoted by the cabinet to ensure the rights of the animals who live under human care. Yet, no enforceable laws exist.

How attorneys at law can contribute to support animal welfare;

Taking legal action against violators and promoting a healthy relationship between animals and mankind is crucial to protecting wildlife, making it essential to address matters that disrupt the bond and relationship between man and animal. Because animals are not capable of rational thinking, it is the duty and responsibility of man to treat animals as one of his own family members. Right to receive love and affection from mankind by the animals, is one of the most important thing to be advocated by the legal fraternity

To find out the reasons for the failure of the man in establishing a strong bond with the animal, a large number of facts are to be explored. Mainly the ignorance and lack of awareness with regard to requirements of animals, their importance, and ignorance of our duties could be treated as primary reasons. In some other cases it may be the loopholes of the legal system from which he can very easily escape. However due to this void the innocent victim is the animal. 53 (PhD) Attorney at Law, Chairman Center for Environmental Justice 54 LL.B (Graduate)

Victimization of elephants and stray dogs by cruel and inhumane treatment

Over the past few years, many incidents occurred raising concerns whether animals in Sri Lanka are truly protected from cruel and inhumane treatment. Sri Lankan elephants are considered an exotic feature of Sri Lanka’s ecosystem are placed in a devastating position, subjected to cruel and inhumane treatment.

One such incident that drew the attention of the public and international organizations is the cruelty towards domesticated elephants in Sri Lanka. Elephants are kept in religious premises to be used in processions and cultural parades. They are chained in zoos to attract onlookers and used to give rides to tourists.

Many cases were reported and highlighted by the media where elephants are subjected to burden of deployment of unnecessary work as well as where famous personalities such as well-known politicians and priests have been convicted and arrested for illegally possessing baby elephants without a permit.

According to the charges, many of them were subject to illegal trafficking which violates the existing legal provisions to protect elephants in Sri Lanka under the Fauna and Flora Protection Ordinance. Under Section 22A of this Ordinance, it is stipulated that, “nopersonmaypossess,haveinhiscustodyormake useofanelephantunlessitisregisteredandunlessalicenseinrespectoftheelephanthasbeenobtained inaccordancewiththeprovisionsofthissection.” There were records of approximately 60 baby elephants that were found stolen from the jungles of Habarana, Udawalawe, and kept in the possession of many influential people such as politicians and priests in recent years.

It is the duty of the attorneys at law to advocate for preventing these types of occurrences.

Another notable incident that drew the attention of the public and animal activists is the extermination of stray cats and dogs inside the Jayewardenepura and Moratuwa University premises. It was reported that the respective authorities of Jayewardenepura University and a private contracted company called ‘Ultrakill’ was responsible for sedating and getting rid of stray dogs, while Moratuwa University, for curbing stray dogs and cats in the facilities of university, took the same action by hiring a private contractor to repel stray dogs.

Unfortunately, the dogs were sedated with ketamine and two dogs died from drug overdoses. The stray dogs that were removed from the property were later found lying on a piece of land. The problem to be identified in the existing circumstances is that the authorities are not resorting to the legally prescribed method of seizing and detaining stray dogs that are suspected to be sick,

Identifying sick dogs and disposing or treating of those dogs has to be done in accordance with the provisions of the Dog Registration Ordinance and the Rabies Ordinance of Sri Lanka. But unfortunately, the animals became victims of inhumane and cruel treatment subjected to unnecessary and superfluous injuries. It is clear

that these two practical scenarios reflect the problem related to cruel and inhumane treatment of animals in Sri Lanka.

Existing Legislation and its Applicability

Legislation in Sri Lanka providing for the protection of animal rights in Sri Lanka can be listed below.

● Ordinance for the Prevention of Cruelty to Animals No. 13 of 1907 amended in 1912, 1917, 1919, 1921,1927, 1930, 1945

● Registration of Dogs Ordinance No. 25 of 1901 as Modified by numbers 20 of 1915, 03 of 1920, 21 of 1921, 26 of 1938, 61 of 1939, 12 of 1945, 23 of 1946, 19 of 1947 and 60 of 1961.

● Animals Act No. 29 of 1958 as amended in 1968, 1988, 2009 and Regulations framed in Gazettes 1962, 1965, 2000, and 2009.

● Fauna and Flora Protection Ordinance No.2 of 1937 as amended in 1942, 1944, 1945, 1948, 1964, 1970, 1993 and 2009.

‘The Animal Welfare Bill in Sri Lanka was originally drafted in 2006 but it has never been enacted despite continued public support to expedite the implementation of it over couple of years.’

With the recent string of horrific acts of violence towards animals including dog and a cat both being set on fire, puppies being beaten to death with sticks and elephants are killed brutally. Therefore, it is a must to take remedial actions to stop the violence done by man on animals in Sri Lanka. We as humans and attorneys at laws should advocate the prevention of cruelty to the animals and to acknowledge and respect the rights of all living creatures in and around our premises.

In this context it is important that we need to influence and put a presence on the authorities to provide welfare of the animals.

During the last year many shocking incidents regarding cruelty to animals took place in Sri Lanka, which attracted the attention of the public. These incidents gave rise to the discussion of animal rights and many protests claiming that animals should be free from torture and abuse. The right to be free from cruelty should be identified as an animal right which is crucial in order to protect such animals and ensure the recognition of the welfare of animals in Sri Lanka.

Even our Parliament does not support animal rights and those are not included in any election manifesto, maybe because these animals have no voting rights, no money and power. Sri Lanka has laws in place to prevent cruelty to animals. Few people pay attention to this, and cruelty to animals continues. It is clear, when considering recent events, that the prevailing law has not been properly and effectively implemented to control violations of animal rights or to protect the abuse of animals in Sri Lanka. When we compare other jurisdictions in the world, our country has taken some initiatives in recent years to strengthen the current legal system in Sri Lanka for the protection of animals.

The basic law that ought to be analysed, which is the main piece of legislation dealing with protection of animals from cruelty in Sri Lanka is the Cruelty to Animals Ordinance No: 13 of 1907. This statute underwent subsequent amendments in 1912, 1917, 1919, 1921, 1927, 1930, 1945 and the last amendment is No. 22 of 1955..

The preamble to this Ordinance states that, “itisanOrdinancetomakebetterprovisionsforprevention ofcrueltytoanimals.”

Section 2 of the Ordinance defines the “offense of cruelty” by stating that Anypersonwhoshall

a.Cruellybeat,ill-treat,andover-drive,orcauseorprocuretobecruellybeaten,ill-treated,over-driven, overridden,abusedortortureanyanimal

b.Causeunnecessarypainorsufferingtoanyanimalbyanactoromission

c.Conveyorcarryorcausetheminvehicles,basket,box,orcageorotherwiseanyanimalorposition animalssoastosubjectthemtounnecessarypainorsufferingwillbecommittingtheoffenseofcruelty. (HereinafterreferredtoasPCAO)

According to the section 22 of the Fauna and Flora Protection Ordinance No. 2 of 1937, Fauna and Flora Protection Ordinance, valid registration and license are required to keep an elephant in custody.

Despite the tragedies, and the high number of strays, there are many in Sri Lanka who campaign for animal welfare, who are also engaged in volunteering to support feeding, spaying, and caring for abandoned dogs.

There are many aspects of animal welfare in Sri Lanka that need improvement. Perhaps most importantly, the media can help create a culture of responsible pet ownership. Rules and regulations are important because even if you can't change everyone's attitude, you can change behaviour. The Law for the Prevention of Cruelty to Animals in Sri Lanka enacted by the colonial government in 1907 is mainly ineffective because its penalties were never updated. The maximum fee is only 100 rupees. The authorities tend to believe that it is not worth pursuing cases involving outrageous animal cruelty.

Although this ordinance applies to the situation of victimized stray dogs discussed above this too does not directly deal with laws against the cruelty that these dogs might face.

“Iaminfavorofanimalrightsaswellashumanrights.Thatisthewayofawholehumanbeing”.

-Abraham Lincoln-

In order to overcome the above shortcomings and improve the existing legal system to address animal cruelty issues ., Sri Lankan legislature and animal activists have taken some notable initiatives to address this issue

One such important step is the drafting of the ‘Animal Welfare Bill’, which was approved by the cabinet in 2016, although it has yet to be enacted into law in Sri Lanka. However, this bill introduces many novel provisions to improve the existing animal welfare law in Sri Lanka. Section 80 provides definitions for “animal”, "captive animal", which has expanded the existing definition of "animal" in the Ordinance to mean "any living creature other than a human being". Article 3 expressly recognizes the concept of “duty of care”. In Parts VII, VIII, and IX, the bill establishes “Cruelty-to-Animal Offenses,” “Prohibited Conduct,” and “Penalty,” respectively, comprehensively defining the different crimes and prohibited conduct that are

punishable under the bill, while Part XII provides for the “Investigation and Prosecution” of crimes committed.

In addition, perpetrators can be sentenced under the jurisdiction of the Court of First Instance and can also be sentenced to more severe penalties. Most importantly, the bill proposes the establishment of a "National Animal Welfare Authority" in section 5.

It is also favourable to recommend laws supervising the extermination of stray dogs to end the unnecessary suffering and pain that stray dogs are subjected to in order to rid Sri Lanka of rabies. "The solution is not the destruction, but the control of the canine population through CNVR (Catch, Neuter, Vaccinate and

Release), the humane and sustainable method recommended by the World Health Organization (WHO) and the World Organization of Animal Health (OIE) which Sri Lanka is obliged to follow, being a member of both organizations.

It's not just about the bill itself; we need a responsible group that can look into these issues, as some animal organizations aren't entirely honest about their goals

Let us hope that no long overdue Animal Welfare Bill is passed for efficient action against cruelty to animals.

DE-OBJECTIFICATION OF ANIMALS: DEVELOPMENT OF A NEW LEGAL STATUS FOR ANIMALS AS VICTIMS OF CRIME

K.M.M.M. Jayathilaka55

INTRODUCTION

Humans cause vast amounts of sufferings to animals each day. We confine them in cages; we separate them from their families; we leave them outside without access to water, shelter, food and medication; we kill them for fur and food; we cause other emotional and physical sufferings for fun and financial gains.

Historically, sufferings caused to animals, in particular for the fulfillment of human needs, were viewed by many as justifiable on the ground of necessity. However, at present, the way animals are treated has become a matter of public morality with legal implications.

In addition to the harms that animals incur as a result of animal cruelty, animals also suffer from unfair treatment in the criminal justice process due to the anthropocentric focus of victimology. As a result of them not being included in the definition of “victims of crime”, animals are not afforded protections similar to those granted to other categories of crime victims.

Therefore, this article brings into light the importance of extending crime victim status to animals and its implications for the success of movements in Sri Lanka fighting against animal cruelty.

RATIONALE BEHIND ANIMAL ANTI-CRUELTY LAWS

‘Standing’ in a legal proceeding (locusstandi)is a desirable instrument to protect the dignity of living things from criminal violence. However, in the past, humans, like animals, were labelled as ‘property’ and considered not worthy of standing or protection of the law. Though, for centuries, animal rights movements and human rights movements had been fighting tooth and nail towards legitimizing their dignity, in this struggle, human rights movements surpassed animal rights movement by replacing with a system, which enabled human victims of crime to play a very active and meaningful role in criminal prosecutions.56 “The concept that animals can be counted as victims of crime is still revolutionary within the legal systems.”57

Due to acts and omissions of humans, animals experience sufferings of diverse nature in different degrees; this includes physical injury, emotional suffering, stress, fear, inability to exhibit natural behaviour or a foreshortening of natural life span etc. Nevertheless, animal anti-cruelty legislations, which purport to

55 Assistant Lecturer, Faculty of Law, General Sir John Kotelawala Defence University, LL.M. in Criminal Justice Administration (reading) (Open University), LL.B. (Hons) Peradeniya.

56 Melanie Flynn, ‘The Case for A Victimology of Nonhuman Animal Harms’ (2017) < https://eprints.lincoln.ac.uk/id/eprint/15917/1/15917%20Nonhuman%20victimology%20MH%20and%20MF%20 edits.pdf > accessed 20 March 2023.

57 Justin Marceau, ANIMAL RIGHTS AND THE VICTIMHOOD TRAP (2021) 63 Arizona Law Review, 731.

ensure welfare of animals by penalizing those who abuse and neglect animals, do not aptly cater for this plight of animals;58 these laws focus on criminalizing cruelty towards animals as a matter of public morality, protection of property or human safety and thereby rendering sufferings of animals invisible and legally irrelevant.59 Animal anti-cruelty legislations are not a means of recuperation for victims of animal crimes.

Animals, who have the capacity to suffer from a crime, deserve special consideration in the criminal justice process and thus should be included in the definition of “victims of crime”. When animals are not considered victims of crime, they are robbed of the full protection in the criminal justice system that they deserve.

A close scrutiny of the animal welfare legal regime of Sri Lanka, which encompasses Prevention of Cruelty to Animals Ordinance No. 13 of 1907, Registration of Dogs Ordinance No 25 of 1901, Animals Act No. 29 of 1958 and Fauna and Flora Protection Ordinance No.2 of 1937, also reveal that these legislations were not implemented out of the genuine concern to alleviate sufferings of victims of animal abuse but to protect interests of the human kind.

However, there is a growing call among the states for the legal recognition of animals as victims of crime; legal systems are shifting from the model where animal anti-cruelty laws focused on furthering human interests to one that materially serving the best interest of animals.

SIGNIFICANCE OF RECOGNIZING ANIMALS AS VICTIMS OF CRIME

Being the victim of a crime is not the same as being classed as “victims of crime” under the law.60 The former applies to anyone who has been harmed by someone else’s criminal act while the latter is a legally meaningful category; once someone qualifies for the status of victims of crime, they enjoy certain legal rights and protections within the criminal justice system.61 “While details vary by jurisdiction, these rights of victims of crime focus on ensuring victims are acknowledged, respected, kept safe and able to have a voice in the

58 ibid.

59 Marina Lostal, ‘De-objectifying Animals: Could they Qualify as Victims before the International Criminal Court?’ (2021) 19 (3) Journal of International Criminal Justice < https://academic.oup.com/jicj/article/19/3/583/6356124#315829433> accessed 23 February 2023.

60 Andrew Ireland Moore, Defining Animals as Crime Victims, 98-99.

61 ibid, 102.

criminal justice process.”62 Though not all rights of victims of crime are relevant to animals, there are certain rights which would immensely aid in addressing chronic issues that tend to arise in animal cruelty cases. Moreover, it facilitates the apt representation of harms caused to the animal in legal proceedings and proper recovery from physical or mental trauma that it may have suffered as a result of abuse.

Our criminal justice system is not solely concerned on preserving public interests and penalizing perpetrators through imprisonment and fines; it concerns on reparation of harm caused to victims; it focuses on replenishment of losses caused to victims or their families as well as affected communities by providing material and symbolic benefits. 63 “At its heart, our criminal justice system recognizes that crimes against victims are attempts on the part of the perpetrator to treat victims as nothing more than means to gratify their anger or greed.”64 Therefore, through conferment of victimhood to animals, our criminal justice system conveys an essential message to perpetrators, victims, and the public that the victim has intrinsic value; it stresses that the victim of animal cruelty is a someone who matters and not a piece of evidence; the victim of animal cruelty cannot be reduced to a mere means to an end.65 Accordingly, victimized animals would be entitled to receive reparations in the form of restitution, compensation, rehabilitation and satisfaction.66

Listing as “victims of crime” would be extremely helpful for animals in the criminal proceedings; victimhood provides a safe environment for victims going through the daunting experience of criminal trial, especially given the power relationships between the perpetrator and the victim, the privacy in which the offence of animal abuse and neglect are committed and the cyclic nature of the offence.67 Although animals are often kept in protective custody during the criminal proceedings, if they are not, animals face terrible situations, if their owner is charged with animal abuse. Mandatory arrest and reporting schemes are helpful for victims of animal abuse in this regard and defining animals as victims of crime would give more credibility for the usage of these tools.68

62 ‘Animals as Crime Victims: Development of a New Legal Status’ (Animal Legal Defense Fund) < https://aldf.org/article/animals-as-crime-victims-development-of-a-new-legal-status/> accessed 24 February 2023.

63 Geoffrey Sayre-McCord, ‘Criminal Justice and Legal Reparations as an Alternative to Punishment’ (2001) Philosophical Issues < https://www.jstor.org/stable/3050612 > accessed 24 February 2023.

64 ‘Animals as Crime Victims: Development of a New Legal Status’ (Animal Legal Defense Fund).

65 Douglas Beloof, Crime Victims’ Rights: Critical Concepts for Animal Rights (2001) 7 (19) Animal Law Review, 25.

66 Marina Lostal, ‘De-objectifying Animals: Could they Qualify as Victims before the International Criminal Court?’; Geoffrey Sayre-McCord, ‘Criminal Justice and Legal Reparations as an Alternative to Punishment’.

67 Andrew Ireland Moore, Defining Animals as Crime Victims, 103. 68 ibid.

In Sri Lanka, the current regulation is a two-tier process whereby a complaint will first have to be made to the police before an action for cruelty against animals can be filed.69 Accordingly, an action for cruelty

against animals is contingent upon two factors: someone voicing out the animal abuse or neglect that he/she witnessed and positive attitude of law enforcement officers towards animal abuse. Mandatory arrest and reporting schemes take a lot of discretion from police and bystanders or neighbors. In particular, when police are called out to the scene at the behest of witnesses of animal abuse, they often leave without taking any action; this

tolerant approach of law enforcement officers is a result of their belief that consequences of animal abuse are not as far-reaching as consequences of human violence. Therefore, conferment of status of “victims of crime” for animals may help to quell these misconceptions and encourage to act in a responsible manner in safeguarding interests of animals.

Moreover, recognition of animals as a group of victims having a legally enforceable interest would help to resolve their cases without any undue delay. The right to a speedy trial may be extremely important to animals, especially, if they are still living with the abuser in order to protect them from further and extended abuse.70 Further, it is equally important if the animals are being held in protective custody by a law enforcement or humane agency so as to reduce the amount of time that they must spend there, which will both reduce the stress to the animal and the drain on the shelter’s resources.71

Status of “victims of crime” offers opportunities to the victim to influence the criminal proceedings and the truth-telling function of the trial by narrating ins and outs of their sufferings.72 Victims are entitled to participate in proceedings through their legal representatives, who are allowed to question witnesses, experts and the accused, challenge and lead evidence. In Sri Lanka, only police can file court actions for animal cruelty and is prosecuted through the public prosecutor.73 Private prosecution by individuals and organizations, who are devoted for welfare of animals, are not allowed, though they are way more capable than public prosecutors in providing valuable insights to the court on any specialized physical or mental trauma that the animal may have suffered as a result of abuse and to any additional care requirements that the animal needs as a result of animal cruelty.74 Such detailed and expanded account of the pain that the animal suffered is extremely helpful, at the stage of sentencing, for the judge to correctly determine the scope of lability of the wrongdoer and the requisite punishment. Furthermore, “it may give the wrongdoer more insight into the pain that the animal suffered to give a deterring effect on them in their future dealings with animals.”75 Victim impact statements by private attorneys would not only provide the victim a meaningful opportunity to present and be heard by

69 Samangie Weetamunie, ‘A Voice for the Voiceless’ ( Sunday Observer, 30 January 2022) https://www.sundayobserver.lk/2022/01/30/spectrum/voice-voiceless, accessed 23 February 2023.

70 Melanie Flynn, ‘The Case for A Victimology of Nonhuman Animal Harms’.

71 Andrew Ireland Moore, Defining Animals as Crime Victims, 98.

72 Justin Marceau, ANIMAL RIGHTS AND THE VICTIMHOOD TRAP, 735-736.

73 Samangie Weetamunie, ‘A Voice for the Voiceless’.

74 Andrew Ireland Moore, Defining Animals as Crime Victims, 107.

75 Justin Marceau, ANIMAL RIGHTS AND THE VICTIMHOOD TRAP, 739.

the court but also provide the victim some sense of empowerment of using the legal system. Therefore, defining animals legally as victims of crime legitimizes requests by animal attorneys to participate in prosecutions; “by providing an individual identity at law for animals, the legal basis on which human victims have been allowed to have private prosecution can readily be extended to animal victims.”76

The conferment of the legal status of victimhood for animals pave the way for quantification of the impact of harms on individual animals (victims) at sentencing, which is an important step forward for animals and justice.77 Due to the inclusion of animals to the realm of victims in criminal law, those who commit cruelty against animals no longer receives an ‘abuse one, get the rest free’ sentence, where all their victims are consolidated.78 Instead of this improper translation of harm into criminal sanctions followed in cases of cruelty against animals, sufferings of each individual animal victim of animal abuse or neglect are counted to determine the duration of imprisonment, amount of fine or compensation. For example, in State of Oregon v. Arnold Nix79, a man was arrested for starving and neglecting 20 horses and goats. The jury convicted the man of 20 counts of second-degree animal abuse. The district court, at the sentencing hearing, by merging the 20 counts, only issued a single conviction towards the defendant. The defendant, thus, was given a mere 90 days in jail and three years of probation for his “one” offence. Upon the appeal made by the state, the Oregon Supreme Court remanded the case for the entry of separate convictions on each guilty verdict and for resentencing. This marks a moral awakening with regard to animal wellbeing, because stiff punishment for animal cruelty sends the clear message that such conducts are not acceptable and discourage people from committing similar offences.

CONCLUSION

It is not a novel idea that entities other than humans can be considered as victims of crimes. However, as much for human victims years ago, animal victims receive significantly less attention in the existing victimological sphere. Consequently, animal victims have lost their ability to meaningfully participate in a system, which is supposed to protect their interests, and to gain significantly more protection from current anti-cruelty laws through increased and proper enforcement. This article has sought to put on the spotlight how animals can greatly benefit from stretching the legal boundaries of the notion “victims of crime”; when animals are admitted as victims of crime, they would be entitled to have a safe environment during the trial, right to a speedy trial, right to obtain proper representation at the trial and right to reparation. Therefore, it is evident that inclusion of animals as crime victims to the criminal justice system is an extremely valuable accommodation for their plight in incidences of animal abuse and neglect.

76 Justin Marceau, ANIMAL RIGHTS AND THE VICTIMHOOD TRAP, 736.

77 Andrew Ireland Moore, Defining Animals as Crime Victims, 96.

78 ‘Animals as Crime Victims: Development of a New Legal Status’.

79 2012 WL 3105223 (Or.App., 2012); 251 Or.App. 449 (2012)

AN ANALYSIS OF THE CASES ON ANIMAL RIGHTS

Dulki Seethawaka80

Even though animal rights are not expressly recognised in the Constitution of Sri Lanka, the Court of Appeal recently recognised the rights of elephants in the country.81 In 2015, a policy was implemented that only persons who have obtained valid licences can keep elephants.82 As a result, 38 elephants were given to the four national zoological gardens.83

However, on 6 September 2021, a court order was issued to return 14 elephants to the previous owners, which was subject to heavy criticism by conservationists and animal welfare activists.84 The Centre for Environmental Justice challenged this order and filed a case against the release of the elephants and the regulations of tamed elephants' registration.85 Accordingly, the Court of Appeal recognised the rights and sentience of the elephants for the first time in Sri Lanka and suspended the release of elephants to the previous owners.86 Therefore, this can be considered as one of the landmark cases emphasising the necessity of recognising animal rights in Sri Lanka.

There are several judgements in India which recognise animal rights. In the case of N.R.Nair&Others v. Unionof India &Others87, the Kerala High Court upheld a notification issued by the Ministry of Environment and Forests, prohibiting the training of bears, monkeys, tigers, panthers, and lions as performing animals. When the case reached the Supreme Court, an exhaustive judgement was pronounced, which referred to the

behavioural patterns of wild animals, thereby recognising the mental distress of an animal if it is captivated and kept in zoos and circuses.

80 M.Phil. (Reading) (Colombo), LL.M. (Colombo), BA in Interior Design (Hons) (Northumbria), LL.B. (Hons) (London), Postgraduate Diploma in Animal Welfare (Reading) (India) Senior Executive Researcher, Centre for Environmental Law and Policy (CELP), Faculty of Law, University of Colombo. Attorney-at-Law of the Supreme Court of Sri Lanka.

81 Lakmal Sooriyagoda, ‘Releasing of elephants to claimants suspended: CA says court is mindful of cruelty to elephants’ (Daily Mirror, 27 November 2022) <https://www.dailymirror.lk/breaking_news/Releasing-ofelephants-to-claimants-suspended-CA-says-court-is-mindful-of-cruelty-to-elephants/108249410?fbclid=IwAR1W1ouqxFgGVWND44ldpneRzB-aw7yorzjImRgdT_F2roGlcdVrnciF_L4> accessed 09 February 2023; see also ‘CA WRT 423/21 – The case against the releasing of elephants and the regulations of tamed elephants registration’ (Ejustice, 03 October 2021) <https://ejustice.lk/ca-wrt-423-21-the-case-againstthe-releasing-of-elephants-and-the-regulations-of-tamed-elephants-registration/> accessed 09 February 2023.

82 Dulki Seethawaka, ‘Tamed Giants in Chains’ (The Morning, 07 April 2021) <https://www.themorning.lk/tamed-giants-in-chains/> accessed 12 May 2022.

83 ibid.

84 Malaka Rodrigo, ‘Outcry in Sri Lanka as suspected elephant kidnappers get to keep the animals’ (Mongabay, 18 November 2021) <https://news.mongabay.com/2021/11/outcry-in-sri-lanka-as-suspected-elephantkidnappers-get-to-keep-the-animals/> accessed 12 May 2022.

85 ‘CA WRT 423/21 – The case against the releasing of elephants and the regulations of tamed elephants’ registration – EJustice’ (n 1).

86 Sooriyagoda (n 1).

87 N.R. Nair & Others v. Union of India & Others AIR (2000) Ker 340.

The court stated, “…weholdthatcircusanimalsarebeingforcedtoperformunnaturaltricks,arehoused incrampedcagessubjectedtofear,hunger,pain,nottomentiontheundignifiedwayoflifetheyhaveto livewithnorespiteandtheimpugnednotificationhasbeenissuedinconformitywiththechanging scenario,valuesofhumanlife,philosophyoftheConstitution,prevailingconditionsandthesurrounding circumstancestopreventtheinflictionofunnecessarypainorsufferingonanimals.Thoughnothomo sapiens,theyarealsobeingsentitledtodignifiedexistencesandhumanetreatmentsanscrueltyand torture…”

The Court expressed that humans have a fundamental duty to show compassion to animals and recognise and protect their rights. Furthermore, the Court suggested the educational institutions to offer an “Animal Rights Law” programme, emphasising fundamental rights similar to the Harvard Law School.

Yet another landmark judgement relating to the protection of animals is AnimalWelfareBoardofIndia v.A.Nagaraja&Others88 (also known as the Jallikattu Case). The issue was whether an ancient practice called Jallikattu in the State of Tamil Nadu must be prohibited on the grounds of animal cruelty. The Supreme Court held that the practice should be permitted subject to certain conditions, which were prescribed by the Court and thereby, ordered the AWBI to closely monitor the event and ensure that the bulls are not mistreated by the participants of the sport. Several important declarations made by the Court, in this case, are summarised as follows:

“

1. The rights guaranteed to the Bulls under Sections 3 and 11 of the PCA Act, read with Articles 51A(g) & (h), cannot be taken away or curtailed, except under Sections 11(3) and 28 of the PCA Act.

2. The five freedoms referred to earlier must be read into Sections 3 and 11 of the PCA Act, be protected and safeguarded by the States, Central Government, Union Territories (in short “Governments”), MoEF and AWBI.

3. The AWBI and Governments must take appropriate steps to see that the person-in-charge or care of animals takes reasonable measures to ensure the well-being of animals.

4. The AWBI and Governments must take steps to prevent the infliction of unnecessary pain or suffering on the animals since their rights have been statutorily protected under Sections 3 and 11 of the PCA Act.

5. The AWBI must ensure that the provisions of Section 11(1) (m) (ii) are scrupulously followed, meaning that the person-in-charge or care of the animal shall not incite any animal to fight against a human being or another animal.

6. The AWBI and the Governments would also see that even in cases where Section 11(3) is involved, the animals should not be put through unnecessary pain and suffering, and adequate and scientific methods be adopted to achieve the same.

7. The AWBI and the Governments should take steps to impart education about the humane treatment of animals in accordance with Section 9(k), inculcating the spirit of Articles 51A(g) & (h) of the Constitution.

8. The Parliament is expected to make a proper amendment to the PCA Act to provide an effective deterrent to achieve the object and purpose of the Act, and adequate penalties and punishments should be imposed for the violation of Section 11.

9. The Parliament, it is expected, would elevate animal rights to constitutional rights, as done by many countries around the world, to protect their dignity and honour.

10. The Government would see that if the provisions of the PCA Act and the declarations and the directions issued by this Court are not properly and effectively complied with, disciplinary action be taken against the erring officials so that the purpose and object of PCA Act could be achieved.

11. The Tamil Nadu Regulation of Jallikattu Act is found repugnant to PCA Act, which is welfare legislation, hence held constitutionally void, being violative of Article 254(1) of the Constitution of India.

12. The AWBI must take effective and speedy steps to implement the provisions of the PCA Act in consultation with the Society for Prevention of Cruelty to Animals and make periodical reports to the Governments and if any violation is noticed, the Governments should take steps to remedy the same, including appropriate follow-up action.”89

Therefore, it is evident how the Court intervenes to strike a balance between human rights and animal rights and direct the authorities to take essential steps to avoid cruelty to animals and ensure their protection. The case also provides several significant interpretations of constitutional provisions which validate the safety of animals in India. The Court interpreted the term “compassion for all living creatures” mentioned in the Article 51A of the Constitution as ‘concern for the suffering and wellbeing of animals.’ It also held that the fundamental right, the ‘right to life’ as stated in Article 21, consists of the right to life for animals. Thereby, constitutional protection is guaranteed for any animal in India against any type of cruelty, neglect, and mistreatment caused by any person under any situation, provided that it affects the honour and dignity of the animal.

In the recent case of Dr.MayaD.Chablaniv.RadhaMittalandOthers90, the New Delhi High Court held, “stray dogs have the right to food and the citizens have the right to feed while ensuring that such feeding does not cause nuisance or harassment to the general public.” This historic judgement permitted individuals and animal welfare organisations to feed stray dogs amidst lockdown restrictions during the COVID-19 pandemic and, thereby, helped many homeless animals. The Court went so far as to emphasise that the right to life provided in Article 21 of the Indian Constitution includes the protection of the life of animals.

On 27January 2022, in delivering the final judgement of the ‘Estrellita Monkey’ case, the Ecuador High Court granted legal rights to wild animals, including the ‘right to exist, develop their innate instincts, and be free from disproportionate cruelty, fear and distress.’91 In this case, a chorongo monkey named ‘Estrellita ’ had lived in a human home for 18 years, and the authorities had filed a habeas corpus action to grant the custody of Estrellita to a Management Centre authorised by the National Environment Authority as a wildlife specimen.

89 Upasana Borah, Monika Bharati, ‘Role of Judiciary in Protection of Animal’s Rights’ (SSRN, 2021)

<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3814646> accessed 15 May 2022.

90 Dr. Maya D. Chablani v. Radha Mittal and Others (2021) I.A. No. 4164/2021, In CS (OS) 277/2020.

91 Estrellita Monkey Case (2022) Case No.253-20-JH

Elizabeth Gamillo, ‘Ecuador’s High Court rules wild animals have legal rights’ (Smithsonian Magazine, 08 April 2022) <https://www.smithsonianmag.com/smart-news/ecuadors-high-court-recognizes-that-wild-animalshave-legal-rights-180979862/> accessed 15 May 2022.

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