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

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 (Introduction)

INTRODUCTION

It is impossible to ignore the fact that animals are often treated poorly in our society. The regularity with which one hears of instances of cruelty is alarming, as is the apparent lack of punishment for the perpetrators. One is inclined to wonder what role the law plays in the effective protection of animals, what status these ‘subjects’ are deemed to have in relation to the law and whether their categorization has any bearing on the law and its enforcement. These thoughts are what provided the impetus for this thesis to be written on animal legislation.

The principal objective is to explore the way in which the law provides for the regulation and the protection of animals kept for companionship. A comprehensive analysis of the legislation in force affecting both companion animals and their owners will allow for a conclusion to be reached on whether such regulation is satisfactory and the protection afforded to them adequate.

It would be best to begin with a synopsis of such legislation to provide an overview of the same and in so doing draw attention to those domestic instruments, at both primary and subsidiary level, which are of most significance and highlight any relevant Community measures. Moreover, such an exercise also ought to provide an indication of the areas that are to be covered in finer detail in the upcoming chapters of this work.

The Civil Code contains just a few provisions concerning animals and of these only one is of particular importance for it lays down civil liability for damage caused by an animal. The Criminal Code contains even less with regard to animals, with only two references found therein, one in a contravention affecting public order and another in a contravention against the person. Criminal liability for the ill-treatment of an animal is not contemplated in the Criminal Code. Ill-treatment was previously dealt with in Part VII of the Code of Police Laws but this long standing law was repealed by and replaced with the Animal Welfare Act in 2001.

The Code of Police Laws has other provisions on animals which are still in force, including bathing restrictions for animals as supplemented by Legal Notice 31 of 1960. The Code also attends to the subject of stray animals while stray dogs in particular are covered by the Dogs Act. The Dogs Act contains provisions relating to dangerous dogs and also establishes a licencing requirement for dogs in general. The Animal Welfare Act meanwhile tackles aggressive animals and a multitude of issues, most of which are connected with the well-being of animals.

The Importation of Dogs and Cats Regulations and Pet Travel Scheme Regulations contain requirements which have to be satisfied for animals to be brought into the country. As for Community measures Regulation (EC) No 998/2003 has harmonised the health requirements for the non-commercial movement of pet animals within and into the European Union and Commission decision 2003/803/EC provides a model of the pet passport that has to  accompany certain animals.

It would be appropriate to define the word animal for the purposes of this work.

Unless one has a comprehensive knowledge of taxonomy, that is the branch of biology which is concerned with the classification of living organisms, one will most probably use the word animal to describe an organism only when it conforms to one’s pre-conceived notions of what an animal ought to look like. Although the conclusion reached may prove to be a correct one most of the time, this is not necessarily so. Thus it is essential for relevant legislation to define the subject matter so as to ensure that an animal to which it would otherwise apply is not inadvertently excluded.

A definition of the term animal is given in the Animal Welfare Act so that an animal should be understood to mean ‘all living members of the animal kingdom, other than human beings, and includes free-living larval and, or, reproducing larval forms, but does not include foetal or embryonic forms’[1]. This is a definition which encompasses a broad diversity of organisms for the animal kingdom contains thirty-seven phyla, with each phylum being further subdivided into class, order, family, genus and species.

In terms of choosing the appropriate category of animals to form the focus of this thesis, the category of animals kept for companionship or companion animals was favoured over that of domestic animals. This was a deliberate preference aimed at avoiding the impression that this work only refers to those animals which have been domesticated and are ordinarily kept as pets, that is dogs and cats. These of course are simultaneously domestic animals and companion animals and as such are included, in fact they probably comprise the bulk of companion animals. Even so, companion animals is a term which also includes other animals which though not domestic by any stretch of the imagination could be, have been and are nonetheless kept for the companionship and affection they provide.

A distinction is thus drawn not with regards to the species of the animal but on the basis of the relationship existing between it and the owner, a relationship of mutual company and friendship.  Hence, what is encompassed is broadened.

On the other hand, the term animals without any qualification was avoided in order to limit the scope so that animals exclusively kept and employed for other purposes, such as chickens for eggs, cows for milk or pigs for bacon would be excluded if that is the only purpose served. Certainly this does not exclude the possibility of one such animal being kept for companionship, in which case it would fall within the ambit of this work.

When a companion animal injures another animal or person or damages property there may well be an action for damages before the Civil Court because liability is incurred by the owner or holder of the animal under the law of tort. There have been two doctrines put forth to explain this liability and these reflect different approaches to animals. One places animals in a category analogous to that of minor children who are considered incapable of acting with intent so that the owner or holder of an animal is vicariously liable in exactly the same way as a parent would be for the actions of one’s child. The other treats animals as property in that a person who derives a benefit from an animal is expected to bear the consequence of any inconvenience it gives rise to, as would be having to make restitution for any damage caused by it.

Moreover it is possible for criminal liability to arise in particular circumstances. To illustrate, where a trained dog attacks a person upon being ordered to do so by its owner the animal is merely the lunga manus of the offender who may therefore be brought before the criminal courts for causing bodily harm to the person.

Aside from the liability incurred for actions committed by animals there is also the reverse side of the coin - actions committed on animals.

A significant part of this thesis is devoted to the ill-treatment of animals and the liability arising therefrom. The aim is to see what forms of animal cruelty are contemplated by the law and what punishment is meted out to the person responsible for the same. The tendency of the law to view animals as property and not as sentient beings is reflected in the measure of punishment. The efficacy of the law in practical terms must be established and possible improvements identified in order to achieve the goal of effective protection, reference being made to comparative legislation which may offer workable models to enhance our legislation. Abandonment as a form of cruelty will lead to a discussion on whether state responsibility should arise for the care of such animals and the general role played by government entities in animal welfare.

The movement of companion animals within the European Union is also an important aspect. The introduction of the pet passport is an interesting and positive development which allows particular animals to cross borders much more easily and does away with certain procedures, such as that of the animal being held in quarantine for a period of time upon arrival. The pet passport does however only apply to a limited group of animals so that the movement of those companion animals not featuring on the list may face further restrictions. Related to the movement of animals is the importation of companion animals to include exotic species which are subject to special rules on account of their particular characteristics. The actual transport of animals by air is regulated by the IATA Live Animals Regulations which are extensively accepted and applied to movement within but not limited to the European Union.

Other regulatory measures affecting companion animals, dogs in particular, will also be dealt with. Most people are completely oblivious to the existence of norms concerning matters such as licencing, from which it transpires that we ought to have a licence for every one of those fluff-balls curled up on our sofas at home. These norms will be looked into, as will be others, in the chapter that is to follow this introduction and may be referred to in subsequent chapters wherever appropriate.   

Though by no means limited to animal protection, animal welfare is the backbone of this thesis.



[1] Animal Welfare Act, section 2

 

[Chapter 1]

 

 

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