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 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.

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.

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 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.

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.