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| Monday, 23 February 2004 |
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Animal Welfare Legislation: Proposals for law reform by Senaka Weeraratna (Extracted from a paper published in The Law Commission of Sri Lanka Commemorative Journal-2003). The ethical concern for the welfare of animals and the notion of reverence for all forms of life are deeply rooted in the long-standing traditional culture of Sri Lanka. It is these factors more than anything else, including modern legislation and sanctions spelt out in anti-cruelty statutes, that have contributed largely to the protection and preservation of life of non-human sentient beings in the country. Nevertheless laws are important and good legislation constitutes a vital component of the animal welfare framework of any country or state. It sets standards for the treatment of animals within a domestic environment as well as by breeders, exhibitors, transporters and research workers using animals in scientific experiments.
The Law Commission of Sri Lanka, responding to growing public concern, invited representations from the public, conducted hearings and thereafter had a comprehensive draft Animal Welfare legislation prepared. Altogether there were over 70 submissions, both oral and written from individuals and Associations. The Law Commission is currently engaged in closely examining this draft legislation, which seeks to replace the antiquated Prevention of Cruelty to Animals Ordinance No. 13 of 1907, and also remedy several deficiencies in other pieces of legislation bearing on Animals and Animal Welfare. The current focus of the Law Commission on revamping Animal Welfare legislation has been welcomed by Animal Welfare Societies among others, particularly in the absence of any serious attempt in the last fifty years to review and enact an Animal Welfare law that sets minimum standards for acceptable animal care. Proposals for Law Reform 1) Compassionate Constitution The moral stature of Sri Lanka's Constitution would be enhanced if it recognizes the claims of other living beings for compassion and appropriate consideration from human beings, and the protection of their legal rights. The philosophy underlying the constitution must encompass the view that legal rights are not the exclusive preserve of human beings. The next logical step in the continuum following the enactment of new animal welfare legislation would be to enshrine the values of compassion and the moral concern for the welfare of other living beings, in the country's most important document. The inclusion of these ideas would enable the constitution to serve also as a basis for advocacy on behalf of these suffering and unrepresented interests. There exists an international precedent. India, being conscious of its unique role in conceiving the concept of Ahimsa over two-and-a-half millennia ago, has enshrined it in its constitution. The constitution of India in its section on 'Fundamental Duties' states that every Indian citizen has a fundamental duty 'to protect and improve the environment including forests, lakes, rivers and wildlife and to have compassion for living creatures': Article 51A(g). Proposals: 1) A provision similar to Article 51A(g) in the Indian Constitution requires to be introduced into the Constitution of Sri Lanka, thereby imposing a Fundamental Duty on every Sri Lankan citizen to have 'compassion for living creatures,' and 2) The Chapter dealing with the Directives of State Policy in the Constitution of Sri Lanka should include among its objectives 'the acceptance of State Responsibility for the protection, and the promotion of the welfare of other living creatures'. 2) New draft Animal Welfare legislation The draft Animal Welfare legislation currently being examined by the Law Commission is a comprehensive document. a) Objectives of the draft legislation The draft legislation seeks to: i) replace the Prevention of Cruelty to Animals Ordinance, No. 13 of 1907; ii) confer a Duty of Care on those persons who are in charge of animals and thereby encourage responsible handling of animals. This is a legal obligation; iii) provide an avenue to create minimum standards for animal welfare by adopting particular codes of practice; iv) bring the law governing animal welfare in Sri Lanka in line with modern legislation by providing for natural justice and basic freedoms to be extended to animals; v) safeguard and enhance Sri Lanka's historical reputation for Animal Welfare. b) Establishment of a separate Authority to administer the Act One of the main purposes of the draft Act is the establishment of a new institution, i.e. the National Animal Welfare Authority, that will administer the Act, develop policies, and strengthen and expand the existing enforcement machinery. The establishment of a new Authority is a 'sine qua non' for any meaningful law reform on any animal welfare in Sri Lanka. It is meant to be the lynchpin in ensuring the proper implementation of the proposed Act. There are a number of administrative institutions based overseas and locally, which can serve as models for the proposed Authority. The Animal Welfare Board of India is one such model. It was the first of its kind to be established by any Government in the world. The Board was established in 1962 pursuant to the terms of Section 4 of the Prevention of Cruelty to Animals Act, 1960 of India. In the U.K. there is a separate Ministry for Animal Welfare. In Sri Lanka, the Department of Wild Life Conservation and the Forest Conservation Department are responsible for the administration of the Fauna and Flora Protection Ordinance of 1937, and these Departments constitute sound models for the establishment of the National Animal Welfare Authority. The prevailing enforcement machinery in Sri Lanka is exceptionally weak. There is no proper lead agency to administer the existing Prevention of Cruelty to Animals Ordinance of 1907. The Authority will be required to provide advice to the Minister on animal welfare issues of interest to the community. The key features of the draft Act i) Applies to all animals This Act protects all animals. The term 'animal' has been defined to include all living creatures except human beings. ii) Proactive approach to animal welfare The Act promotes the responsible care and use of animals through the introduction of the legal principle of Duty of Care and a focus on humane treatment of animals. iii) Types of animal use The Act covers most types of animal use, including recreation, sports, entertainment, the control of pest animals, the use of animals in scientific experiments, working animals, pets, transport of animals and some aspects of livestock production, i.e., poultry. iv) Duty of care The Act places a Duty of Care on all persons who are in charge of animals. It will be an offence to breach the Duty of Care. It is a legal obligation. The Duty of Care is meant to ensure the welfare needs of animals. Its scope is more than not being cruel to animals. In fulfilling the Duty of Care persons in charge of animals must take reasonable steps to meet the basic needs of animals, such as: * provision of food and water * proper accommodation or living conditions for the animal * freedom to display natural ways of behaviour * ensure the proper treatment of disease or injury * ensure that any handling of the animal by the person, or caused by the person, is appropriate and reasonable v) Codes of practice The draft Act has made provision for the issue of Codes of Practice on animal welfare for a wide range of animal uses. The Act empowers the Authority to make rules and issue Codes of Practice relating to animal welfare. The Codes then serve as a benchmark for acceptable animal welfare standards, thus providing the necessary guidelines in respect to discharging the Duty of Care. The Animal Welfare Inspectors can also use the Codes as ready references to determine whether people are discharging their Duty of care and also as a guideline for issuing written directions to rectify animal welfare problems. vi) Inspectors The appointment of Animal Welfare Inspectors is another novel feature in the draft Act. Inspectors will perform functions similar to the work of the Inspectors of the Royal Society for the Prevention of Cruelty to Animals (RSPCA) in UK and Australia, and Inspectors of the Department of the Wild Life Conservation in Sri Lanka. The Authority, will appoint the Animal Welfare Inspectors either on a permanent or temporary basis. They will be recruited from other Government departments, Animal Welfare societies, and members of the public. The Inspectors will have powers to investigate offences of cruelty, seize animals, direct persons to undertake measures to alleviate suffering and recommend the forfeiture of animals. Unlike the Prevention of Cruelty to Animals Ordinance of 1907, which allows for Police intervention only after the offence has been committed, this draft Act provides avenues for preventative measures to be taken by Animal Welfare Inspectors in the best interests of an animal before an act of cruelty is committed. vii) Accountability of Inspectors All Inspectors will be accountable for their conduct to the Director - General of the Authority. viii) Animal welfare directions Animal welfare directions allow Inspectors to recommend a course of action to improve a situation where animals are not being adequately cared for. These directions aim to: * prevent a potential animal-cruelty-situation from occurring, or * resolve an existing problem. Inspectors have the authority to issue written directions, specifying in detail what the person in charge of the animal must do to ensure the animal is properly cared for. This direction could include providing food. water, rest or shelter, or
consulting a Veterinary surgeon. In the case of livestock, the Codes of
Practice would be used as a key standard for determining whether or not
the animals were being cared for adequately. |
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Sri Lanka's track record in the field of animal welfare legislation and
the effective enforcement of such legislation since the country's
independence in 1948, is unfortunately poor. It is a national
embarrassment to have one of the world's most antiquated pieces of animal
welfare legislation on the statute books as the governing legislation. The
legislative indifference towards bringing the law governing animal welfare
in Sri Lanka in line with modern legislation now prevalent in several
other countries, by providing for natural justice and basic freedoms to be
extended to animals, has led to calls for law reform of the area by an
increasing number of organisations and concerned individuals.
