by Senaka Weeraratna

The moral stature of Sri Lanka’s Constitution would be greatly 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. This standpoint is consistent with the philosophy underlying the Dasa Rajadhamma which was a basis of governance in the pre-colonial era.

The next logical step in the continuum following the anticipated enactment of new animal welfare legislation ( Animal Welfare Bill initially drafted by the Law Commission has now been approved by the Cabinet of Ministers for introduction into Parliament ) 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 i.e. the Constitution. The inclusion of these ideas would enable the Constitution to serve also as a basis for advocacy on behalf of the suffering and unrepresented interests namely non – human sentient beings.

The Committee engaged in reforming the Constitution must take into serious consideration the following trends in modern jurisprudence:

1)  The law’s fundamental approach to animals is historically outmoded and ethically unacceptable.

2) This fundamental approach views most animals as ‘chattel’ like other inanimate property of human beings, and in turn claims to protect animals through what are called “prevention of cruelty-to-animals” laws.

3) The classification of animals as chattel but protected to some extent by cruelty laws

(a) does not afford due regard to the basic interests of animals;

(b) does not confer on them legal “rights;” and

(c) in fact and in a true sense are not even intended to protect animals and their interests, but to serve only human interests.

4) Therefore given the rapid awakening in civilized societies following vigourous lobbying by pro-active animal rights campaigners revolutionary changes in the law’s conception of and approach to animals are required

World Animal Net (WAN), a well known animal protection organization in the world with over 1,500 affiliated societies, has launched a project to start an international movement to acknowledge the legal status of animals and recognize them in constitutions. Animals are sentient creatures with an intrinsic value. Therefore measures to take full and proper account of animal protection in international, national and regional constitutions are long overdue.

India 

There exists an international precedent closer to home. India, our neighbour being conscious of its unique role in conceiving the concept of ‘Ahimsa’ over two and a half millennia ago, has enshrined a high moral and ethical principle 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 wild life, and to have compassion for living creatures’  Article 51A (g).

Switzerland

Animal protection has been included in the Swiss Constitution (Article 80), providing the mandate for federal legislation on animal welfare. This specifically covers animal keeping and care; animal experimentation; the use of animals; the import of animals/animal products, animal trade and transport; and slaughter.

Germany

In 2002, Germany introduced a provision to its Constitution that is widely read as upholding the protection of animals as a major state objective, binding on all state actors. It reads: “Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation…”

Brazil

Chapter VI, Article 225(1)(VII) of Brazil’s Constitution (1988) provides that the government must protect flora and fauna from all practices that subject animals to cruelty prohibited by law.

Serbia

Part 4 of the Serbian Constitution (2006) refers to the “protection and improvement of flora and fauna” as an area for government protection, although the term “fauna” here is generally considered as meant to applying only to wildlife, not animals used in food production.

Sri Lanka’s pre-colonial attitudes towards animals

Rock inscriptions and ancient chronicles e.g. Mahawamsa, reveal that extensive state protection was granted to animals and the slaughter of cows was strictly prohibited.

The ethic of Ahimsa (non-violence towards other sentient beings) a cardinal tenet in Buddhism and Hinduism, was a paradigm of public administration and justice in pre-colonial Sri Lanka.

The trusteeship power of the State was extended to protect animals, birds and other living creatures of the land pursuant to 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.”

The inspiration for this noble pronouncement concerning the fundamental duties of a ruler in Sri Lanka can be attributed to two sources:

1. a) The Buddha’s discourse in the Cakkavatti Sihanada Sutta (Digha Nikaya of the Sutta Pitaka) where the Buddha in spelling out the duties of an ideal ruler declared:

” The Cakkavatti King (Righteous King) will give protection, shelter and ward both to the different classes of human beings, and also to birds and beasts”,

1. b) The policy of ‘Rule of Righteousness’ adopted by Arahant Mahinda’s father the Emperor Asoka of India (3rd Century BC) who accepted state responsibility for animals and granted them protection via edicts inscribed on rocks all over India (the Asokan Edicts). These edicts were legal pronouncements based on ethical teachings.

Arahant Mahinda’s declaration set the tone for the creation of an Asokan model of an animal friendly benevolent state in Sri Lanka.

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’.

Senaka Weeraratna