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THE REGULATION AND PROTECTION OF ANIMALS KEPT FOR COMPANIONSHIP : A CRITICAL ANALYSIS AND COMPARATIVE PERSPECTIVE (Conclusion)

Lorraine Poole


Faculty of Laws, University of Malta
Publish Date:
May, 2007
Place of Publication: University of Malta
Printable Version

THE REGULATION AND PROTECTION OF ANIMALS KEPT FOR COMPANIONSHIP : A CRITICAL ANALYSIS AND COMPARATIVE PERSPECTIVE (Conclusion)

CONCLUSION 

 

There are few laws that can be said to be completely satisfactory in every respect. Quite the contrary, it is often the case that a law is found wanting, be it with regards to substance, application or enforcement. Hence insufficiencies were bound to come to light in the course of an examination of our legislation relating to companion animals.

The first problem encountered amongst the applicable norms was the licence requirement under the Dogs Act. This particular law is not observed and the fact that no attempt at enforcement is made only serves to sustain the status quo. But even if it were to be enforced it would still present some problems in terms of substance. The badge that is given to be worn by the dog upon the issue of a licence can easily be removed or lost, meaning that it may not be possible to link a lost or abandoned animal to its owner for the purpose of returning the animal to him or prosecuting him. An electronic transponder would be a much more suitable alternative, ensuring identification and allowing the State to monitor the health status of dogs within its jurisdiction. These two advantages cannot effectively be achieved with a badge and furthermore it does not appear that the legislator was concerned with accomplishing the same when the licencing provisions were drafted. A proposition could be to replace the badge with an obligation to implant the dog with an electronic transponder which would provide a permanent record of identity and health status. The transponder number would be registered and the corresponding details available to the government. In any case the provisions concerning the dog licence ought to be repealed for they have no discernible purpose. 

 The Dogs Act also provides for stray dogs and not necessarily in the best manner. Upon being found, a stray dog ought to be returned to its owner or if this person is unknown it must be taken to the nearest police station. If the dog remains unclaimed for seven days it will be destroyed or otherwise disposed of. The same applies if the dog licence is not presented or the expenses incurred for the animal’s detention are not paid. The fact that this procedure is not ordinarily followed is good but it is still unacceptable in this day and age for us to have legislation that condones the killing of a healthy companion animal. This reinforces the impression that animals are viewed as nothing other than property by the law. Ordinarily the power to destroy property belongs to the owner. But even if one were to hypothesise that destruction is provided for because the State assumes ownership of a stray animal, the act itself is not justified because an owner cannot kill a dog needlessly, regardless of how it is classified, especially now that this would constitute a crime under the Animal Welfare Act.

 Cats and dogs are domestic animals and thus it is evident that stray cats and dogs are animals that have been abandoned by their owners or are the offspring of abandoned animals. Given this observation and the great number of animals on our streets the fact that abandonment was introduced as a crime which is punishable under the Animal Welfare Act is a very positive and long-awaited development.

 In 2004 the Minister for Rural Affairs and the Environment announced the intention to begin working on a project with the assistance of the Council for Animal Welfare that would culminate in the establishment of a facility for the care of abandoned and injured animals. This decision was received with great enthusiam but now this sentiment has been replaced with disappointment because three years later there is still no such facility.

 Seeing as the Ministry has seemingly lost interest in taking on the project itself perhaps it could play a less active but nonetheless contributing role. Voluntary organisations could be considered for government funding according to criteria to be determined by the Minister and the Council for Animal Welfare. The Ministry might wish to license or register such organisations in some manner in order to have more control over them in view of the funds they would be receiving. If neither the setting up of a facility nor the granting of funding are deemed to be feasible options the Ministry should of course proceed to explore other options. The fact that some veterinarians are so dedicated to animal welfare that they provide services for stray and abandoned animals without charging the organisations makes me think that should the government accord benefits (tax or otherwise) to the veterinarians who do so then other veterinarians may be encouraged to do the same.

 The discussion on the basis for the liability incurred for damage caused by animals under the law of tort reveals two different ways of categorising animals. The presumption of culpa doctrine attributes fault to the owner or person using the animal because he has seemingly failed to watch over the animal adequately and this is evocative of the indirect responsibility that the parents of minor children are saddled with. On the other hand the quem sequitur commodum eum teneat incommodum doctrine explains this liability in terms of property so that a person who has the ‘commodum’ of a thing must suffer the ‘incommodum’. With reagards to this liability for the injurious acts of animals however this is of no particular consequence because the outcome of the civil suit will be identical regardless of how the animal is viewed.

 It is in the Animal Welfare Act that a completely different approach to animals is encountered. Admittedly it is a law on animal welfare so the legislator could hardly have fallen back into the customary habit of treating animals solely as property without this raising a few eyebrows. It is true that animals are owned and thus strictly speaking they have to be considered to be property but this should not be extended beyond being a factual situation to regulating them in the same manner as other property. Unlike the latter animals are sentient beings and this ought to be recognised.

 The Animal Welfare Act is a success in some respects and a disappointment in others.

 The Act provides a satisfactorily wide definition of ill-treatment in an effort to include as many forms of animal abuse as possible, thereby casting the net of liability that much further. And because animal welfare is a notion that goes beyond not inflicting harm on an animal, in the Act it is established that any person who keeps an animal or agrees to look after it is responsible for its health and welfare. This is an improvement upon the basic obligation to provide an animal with adequate food, shelter and water that was imposed under the repealed sections of the Code of Police Laws.

 A most significant accomplishment relates to the quality and the quantum of punishment that is awarded to a person convicted of an offence under the Act. The ill-treatment of an animal is now a criminal offence of a higher category, a crime. This in turn has increased the quantum of punishment so that if convicted an offender can now be sentenced to the payment of a fine (multa) of up to twenty thousand liri and be awarded a term of imprisonment of up to one year.

 Of course while this looks good on paper and has the potential to discourage prospective offenders, the effectiveness of the Act will be compromised if the provisions of the Act are not adequaltely enforced and the Courts do not award punishment that corresponds to the severity of the crime in question. To illustrate, in November 2006 one man was sentenced to a four hundred liri fine and another to a one hundred liri fine for organizing a dog fight in a quarry in Siggiewi[1] and while it is excellent that the two men were convicted the Court missed the opportunity to impose a higher fine or award a period of imprisonment which would have sent out a clear message that the commission of crimes against animals will not be tolerated. Incidentally it is inconvenient that judgment documents of the few cases concerning the ill-treatment of animals are not easily available.

 A person convicted of acts of cruelty can walk out of Court and immediately acquire another animal. This is unacceptable. The Act should have given the Court the power to impose a ban from keeping another animal for a temporary period of time or for good. Perhaps such prohibition was not catered for because the legislator realised that without a system of registration of ownership of animals in place it would be ineffective. A solution must be found. One could be to entrust the Administrative Law Enforcement Unit with the task of monitoring offenders who have been so barred from keeping an animal, or assign this task to a small team of Animal Welfare Officers.

 As with everything else in life one must accept the bad with the good and in the case of the Animal Welfare Act perhaps it is worth temporarily putting up with the bad because at the end of the day this law has introduced some good provisions and has also refined some others. In practice it is always quite some time after the enactment and application of legislation that cracks begin to show. And one cannot deny that the Act does require some fine-tuning but any insufficiencies will hopefully be seen to in due time.

 The legislation applicable to the movement of companion animals taken as a whole reveals a different view of animals than discovered thus far. The laws on movement and importation, at national and Community level, focus on the need for health requirements to be satisfied. This is necessary to protect public health. The vaccinations and treatments are required on the basis of the consequences that not doing so could have for the receiving state, and not because of the welfare of the animal. The Live Animals Regulations which apply to the actual transport of the animal being moved or imported however do give considerable weight to animal welfare and the regulations aim to transport the animal safely and efficiently with the least amount of stress being caused to the animal. Taken as a whole therefore the laws on movement have accomplished the delicate task of striking a balance between health and safety requirements and animal welfare requirements.

 The norms of a society are inevitably indicative of the principles considered important to the people making up that society. Our Animal Welfare Act is superior to the norms it repealed in many aspects and as such ought to be a reflection of the progress made in this area but then again it co-exists with other laws which not only place animals in the category of property but effectively treat them as disposable objects without making allowances for the fact that they are living beings. One would hope to live in a society where animal welfare is a priority, until then it is good to remember that while evolution is a slow process it is inevitable.

  


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