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) 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.

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.

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