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.’ 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.

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.

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 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

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.

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.