By Senaka Weeraratna

In 2006, the Law Commission of Sri Lanka prepared an Animal Welfare Bill, based on an exhaustive study of modern legislation governing animal welfare in foreign jurisdictions and the views of the public. It took the Law Commission under the Chairmanship of former Supreme Court Justice the late Dr. A.R.B. Amerasinghe and in the final stages under Professor Lakshman Marasinghe, over six years to finalize the draft Animal Welfare Act, after reviewing many drafts. Several eminent lawyers worked on the drafts in their capacity as members of the Law Commission.

The project to have the antiquated Prevention of Cruelty to Animals Ordinance, No. 13 of 1907, replaced by a new Animal Welfare Act was commenced in early 2000. The tedious and exhaustive work was finally completed in May 2006.  In the same month prior to Vesak 2006 the Animal Welfare Bill of the Law Commission was personally handed over to His Excellency the President Mr. Mahinda Rajapaksa by the then Minister of Justice, Hon. Amarasiri Dodangoda.

As there was no political will to have this Bill enacted, an Animal Welfare Bill based on the Law Commission draft Bill was introduced in Parliament by Ven. Athureliye Rathana Thero, MP in Feb. 2009 as a Private Member’s Bill. This Bill lapsed with the dissolution of Parliament. It was again gazetted as a Private Member’s Bill tabled by Ven. Athureliye Rathana Thero, MP, in October 2010. However there has not been any progress since then.

News has now been received that an Animal Welfare Bill prepared by the officials of the Livestock Ministry will be submitted to the Cabinet of Ministers shortly for approval. It has not been released to the public as yet.

This article on the proposed law reforms relating to animal welfare is based on the Animal Welfare Bill prepared by the Law Commission in May 2006.

Animal Welfare Bill

The Animal Welfare Bill is a comprehensive document.

 

      a) Objectives

It 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 incharge of animals and thereby encourage responsible handling of animals. This is a legal obligation.

iii)       provide an avenue to create minimum standards for treatment of animal

iv)        bring the law governing animal welfare inSri Lanka in line with modern legislation

v)         safeguard and enhanceSri 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 Animal Welfare 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.

 

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.

In Sri Lanka, the prevailing enforcement machinery to control abuse of animals is exceptionally weak. There is no proper lead agency to administer the existing Prevention of Cruelty to Animals Ordinance of 1907.

 

a)                              The key features of the proposed Animal Welfare Act

 

            i) Applies to all animals

This Act protects all animals. An ‘Animal’ has been defined to mean any living being other than a human being and includes a domestic animal, a farm animal, an animal in captivity, a wild animal, a companion animal, a stray animal, and food animal as defined.

ii) Duty of Care       

The Act places a Duty of Care on all persons who are in charge of animals. 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

 

           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, and transport of animals, and several other aspects of animal use such as livestock production i.e. poultry, will be dealt with via Regulations that will be promulgated later.

 

    iv) Inspectors

The appointment of Animal Welfare Inspectors is another novel feature in the draft Act. It 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 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 an 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 even before an act of cruelty is committed.

 

        v)  Animal Welfare Directions            

Animal welfare directions allow Inspectors to recommendacourse 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 theauthority 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.

 

vi) Offences

      All offences under this Act are deemed to be cognizable offences within the meaning of the Code of Criminal Procedure Act. This basically means that arrests can be made without a warrant.

 

a) The draft Act treats the breach by persons of the Duty of Care to an animal in their charge as an offence.

 

b) There is also a general offence of cruelty in the Act. This covers typesof activities that an overwhelming part of the populace of Sri Lanka would unreservedly agree are absolutely unacceptable. These acts of cruelty include beating, abusing, instilling fear, inhumane killing and transporting animals that are unfit for transport.

 

When transporting, it is quite common for animals to be jammed into a restricted area in the vehicle for many hours that may even run into days, usually without food, water, exercise and ventilation. They are exposed to extremes of heat and humidity. In order to weaken possible resistance animals are not generally fed for the last 24 to 48 hours prior to slaughter.

 

The key issue here is that the activity is unjust or unreasonable or unnecessary, and consequently the animal suffers pain or anguish as a result of the activity.

 

c)                        The draft Act also includes a category called ‘prohibited conduct’.

Certain other acts are prohibited as are certain sporting events that expose animals to cruelty and inhumane treatment.

Although killing an animal is not prohibited e.g. food animal, killing an animal in an unnecessary cruel manner is prohibited. There is a total prohibition on the killing of a pregnant animal except in circumstances of such an animal becoming a grave danger to the public. Note: The new amendment to the Butchers Ordinance prohibits totally the killing of a pregnant or lactating cow, irrespective of whether there is a permit or not.

Slaughter of Animals

i) The slaughter of Cows and Cow calves is prohibited, subject to certain qualifications as found in the Animals Act, No. 29 of 1958

 

ii) The slaughter of a quadruped in a private dwelling house in a residential area, in a place of business or a public place is prohibited.

 

Note: In the Indian draft Animal Welfare Act 2011, draft Section 20 is more specific and reads as follows:  

 

Slaughter in authorized slaughter houses: No animal shall be slaughtered except

in a slaughter house authorized in this behalf( Section 20)

iii) The slaughter of a quadruped meant for the purpose of sale or distribution of flesh, requires a certificate of competence from the Authority. This provision has been introduced to prevent abuse of the slaughtering process by incompetent people including women and children sometimes using even blunt knives as reported in England.

vii)     Penalties       

Penalties for people or organisations found guilty of offences have been greatly increased. The maximum penalty for cruelty in the current statute (Prevention of Cruelty to Animals Ordinance, No.13 of 1907) is Rs. 100or3 months imprisonment. The maximum penalty for cruelty in the draft Act is Rs.100, 000 or 3 years in prison.

 

The main reason why this Cruelty to Animals Ordinance is not effective is that the penalties, which stand at an incredibly low Rs.100 ($0.93) and/or three months imprisonment (rarely or never meted out by the courts), have no deterrence value. The law enforcement authorities have therefore tended to think it not worthwhile to pursue even cases involving extreme or heinous cruelty to animals.

 

viii)  Use of animals for research and scientific experiments

The draft Act introduces for the first time in a Sri Lankan statute a mechanism to regulate the use of animals for scientific research and thereby prevent the unnecessary abuse of the lives of other living beings in the name of science, whether by dissection, vivisection or other forms of handling of animals. The draft Act encourages the use of humane alternatives to dissection in the classroom.  These alternatives include computer stimulations and other audio – visual methods, synthetically produced models, ethically sourced cadavars and clinical experiences.

 

The Authority is empowered to institute prosecutions under the Act, where appropriate (Clause 15 (k)). This will include proceeding against researchers who misuse animals under cover of experiments.

 

ix) Right of intervention by the next friend of an animal

The draft Act provides for the right of intervention in any Court proceedings to any adult person or an Animal Welfare Inspector or a recognized Animal Welfare Society in the best interests of the animal as the next friend of the animal, where an animal becomes a subject of Court proceedings.

 

In providing for the right of intervention on behalf of animals, the draft Act allows for the most ennobling form of advocacy in Court: to plead the cause of those beings who cannot articulate their suffering.

 

x) Custody and Sequestration of Animals 

The Magistrate is empowered to issue Disposal and Prohibition Orders once a person has been found guilty of an offence against an Animal. The Magistrate in issuing a Disposal Order upon the forfeiture of an animal shall direct that the animal be given to an Animal Shelter, State Farm or an Animal Welfare Society. The Magistrate may also issue a Prohibition Order to prevent the convicted person from taking possession of any animal or a particular kind of animal.

 

xi) Prosecutions for Offences under this Act

The draft Act empowers the following categories of persons and Societies to launch prosecutions for Offences under this Act:

 

a)                                                            a Peace Officer (i.e. Police Officer), or

b)                                                            an Animal Welfare Inspector, or

c)                                                            a recognised Animal Welfare Society

 

The position concerning the right of Animal Welfare Societies to mount prosecutions is made unequivocally clear in this Act when compared to the ambivalent language used in the Prevention of Cruelty to Animals Ordinance, concerning the exercise of this power.

 

The right of an individual to commence proceedings in a Magistrate’s Court by way of a Private Plaint, under the provisions of Section 136 (1) (a) of the Code of Criminal Procedure Act, No 15 of 1979, is retained.

 

Perspectives

The Animal Welfare Bill awaits enactment in Parliament. Upon enactment it will set the standard for other countries particularly in Asia to incorporate into their legislation modern standards in the way humans treat and co-exist with other sentient beings. Its enactment is long overdue given the obsolescence of the existing legislation. Further, it will remove the shame and embarrassment that confront Sri Lanka today by keeping an obsolete statute enacted in 1907 as the main governing legislation on prevention of cruelty to animals. It is also a test of our national commitment and compassion to other sentient beings.

Sri Lanka has a proud heritage on animal welfare established originally in the pre-colonial Anuradhapura era under benevolent Buddhist Kings influenced by the ethic of Ahimsa (non-violence towards other sentient beings) a cardinal tenet in Buddhism and Hinduism, and a moving plea made by Arahant Mahinda to King Devanampiyatissa in their very first encounter at Mihintale about 2300 years ago, in the following words:

 

“Oh! Great King, the birds of the air and the beasts have an equal right to live and move about in any part of this land as thou.  The land belongs to the peoples and all other beings and thou art only the guardian of it.”

 

It is a historical record that would attract the envy of the rest of the world, given the march of the animal rights movement today in many parts of the globe. We must again re-connect ourselves to this unique heritage and move towards establishing ideally speaking a compassionate society in Sri Lanka which will also address wherever possible the claims of non – human sentient beings for protection, shelter and ward.

 

Senaka Weeraratna

LL.B. ( Sri Lanka ), LL.M. ( Monash)

Barrister & Solicitor (Victoria, Australia), and Attorney- at- Law

Former Legal Consultant on Animal Welfare Legislation to the Law Commission of Sri Lanka