ANIMALS’ CHARTER

Animals are alone within our society – they are living beings legally classified as ‘things’. Is it time we gave them their own rights?

Animals, both domestic and wild, touch all aspects of our daily lives, and we use our power to control them by law. Law is our language of natural justice, a language that speaks for the vulnerable and the weak. Yet our past is tainted by injustice towards those targets we have made victims of prejudice, including black people, children, Jews and women. Today, while we grant rights to all Homo sapiens, we still deny rights to all animals. Animals are denied rights because speciesism – the assumption of human superiority – prevents them from climbing our ladder of law. Our common law is the basis of the legal systems in many countries, including Canada and India. Our self-serving sense of superiority can be seen in R v Menard (1978), a case in the Quebec Court of Appeal involving a defendant who ran a business euthanising animals by motor exhaust, a practice that caused pain and burns. Judge Lamer confirmed: “The animal is inferior to man, and takes its place within a hierarchy which is the hierarchy of animals... It will often be in the interests of man to kill and mutilate wild or domestic animals, to subjugate them and, to this end, to tame them with all the painful consequence this may entail for them...”

Lamer’s judgment is speciesism in action. Though Menard is the defendant, it is almost as though the animal is on trial, at the mercy of a human judge, prosecutor and jury. However, the creature’s only ‘crime’ is the birthmark curse of being an animal.

The fight for animal rights is the last moral crusade of the 21st century. We can only counteract our animal abuse by granting a legal voice to those without one, by creating an ‘Animals’ Charter’.

Richard ‘Humanity Dick’ Martin, an Irish barrister and MP, introduced the first major animal welfare legislation in the world, namely the Act to Prevent the Cruel and Improper Treatment of Cattle 1822. Known as Martin’s Act, it deemed it an offence to abuse domestic animals.

It may sound morally correct, but Martin cleverly concentrated on the benefit to the animals’ owners, who now had a legal right against anyone who damaged their property. The welfare of the animals was secondary to this.

Consequently, the concept of animals as property was embedded as a cornerstone of our law. A modern typical example is the Theft Act 1968, which states that ‘...wild creatures, tamed or untamed, shall be regarded as property.’ An animal’s status is determined by the creature’s use to us.

The reasoning is the same as that used to practise and promote racism and sexism. Our conspiratorial belief that we have absolute rights over all animals is similar to our ancestors’ belief that black people were

born to be slaves and that women were natural chattels for men.

Therefore, humans and animals need an ‘Animals’ Charter’, based on the principles that animals are created as individuals endowed with inalienable rights, including life and liberty and the ability to live naturally and free from abuse by humans – and that they are living beings with innate dignity that must be respected by humans.

Within the proposed charter are 100 articles that cover the changes essential to grant animals a legal personality, which confers the associated rights. These include appointing an ‘animals’ advocate’ to promote and protect their rights.

Anyone within our society who faces discrimination on the grounds of age, disability, ethnicity, gender, sex or otherwise, has legal protection. Animals, in contrast, have no representation. Animals need an advocate for the same reasons as other victims of prejudice, but their need is greater because they are denied any legal means of dissent. To have a future in our society, animals need rights with a human face.

‘Rights’ as compared to ‘welfare’ is more than mere semantics. Welfare may allow a bigger cage or longer leash, yet our tether sets the limits of animal freedom. We decide who benefits and who bears the burden within our law, hence animals remain imprisoned by our ball and their chain. A direct comparison reveals the truth: would any free person want their status defined by a ‘human welfare act’ or by our Human Rights Act?

In 1215, King John was challenged by the barons who saw him as a dictator that believed he was above the law. Out of this came the rights established by the Magna Carta, which states: ‘to no one will we sell, to no one will we deny, or delay right or justice’. An animals’ advocate under the charter would ensure the ‘one’ is not limited to humans.

Two significant cases have recently brought the debate of animal rights to the forefront, while highlighting a foresight lacking in English law.

In the Animal Welfare Board Case (2014), action was taken against Jallikattu, a 300-year-old custom involving bull/bullock cart-races, in which the animals “are physically and mentally tortured for human enjoyment.” In the Supreme Court of India, Judge Radhakrishnan was not impressed: “We are, in these cases, concerned with an issue of seminal importance with regard to the rights of animals under our constitution, laws, culture, tradition, religion and ethology, which we have to examine, in connection with the conduct of Jallikattu.”

He delivered a bellwether judgment by interpreting their constitution as

‘the Magna Carta of animal rights.’ Radhakrishnan ruled the custom as sadistic and declared it illegal.

In the Noah Case (2003), the petitioner applied to the Supreme Court of Israel for a declaration that force-feeding geese for the production of foie gras was illegal. The court granted the declaration, as the practice was “cruel” and “constituted abuse of animals.” Judge Rivlin delivered a perceptive judgment: “There is no doubt in my heart that wild creatures, like pets, have emotions. They were endowed with a soul that experiences the emotions of joy and sorrow, happiness and grief, affection and fear.”

Rivlin ruled that force-feeding is abuse, leading to its abolition in 2005.

The force-feeding of geese echoes the practice used on suffragettes in prison. All women suffered, some died. Mary Clarke (Emmeline Pankhurst’s sister) was pinioned and force-fed in Holloway Prison. She suffered a brain haemorrhage and died on Christmas Day 1910.

At that time, women had no power to resist such legal abuse. The same position remains for animals held and confined for our purposes.

English law can be further called into question when comparing the progressive approach of the Islamabad High Court in the Kaavan Case (2020), which has set the bar higher for the future. Kaavan was an Asian elephant in his 30s, living alone in a Pakistani Zoo, and his case was brought to court by American activist and singer Cher. Chief Justice Minallah concluded with a scathing judgment: “Do the animals have legal rights? The answer to this question, without any hesitation, is in the affirmative.

“To separate an elephant from the herd and keep it in isolation is not what has been contemplated by nature... It is a right of each animal, a living being, to live in an environment that meets the latter’s behavioural, social and physiological needs… “Humans cannot arrogate to themselves a right or prerogative of enslaving or subjugating an animal because the latter has been born free for some specific purposes.” Minallah then ordered that Kaavan be relocated to an elephant sanctuary.

An appeal in the Alberta Court of Appeal, Edmonton (City), 2013, may yet prove to be vital for animals. It involved another Asian elephant, known as Lucy, who was similarly suffering from isolation. The appeal was dismissed, yet its importance lies in the

“While the law protects wildlife and endangered species from extinction, animals are denied rights.”

potent dissent by the presiding judge, Chief Justice Fraser, who was adamant Lucy was entitled to a day in court: “Some may consider this appeal and claims on behalf of Lucy inconsequential, perhaps even frivolous. They would be wrong. Lucy’s case raises serious issues not only about how society treats sentient animals, but also about the right of the people in a democracy to ensure that the government itself is not above the law.”

The importance of rights for animals is related to our prejudice towards them. Richard Ryder, who coined the word speciesism, explained his reasoning in Victims of Science (1975): “Speciesism and racism (and indeed sexism) overlook or underestimate the similarities between the discriminator and those discriminated against and both forms of prejudice show a selfish disregard for the interests of others, and for their sufferings.”

That is why we used to have slave and wife-selling auctions, and still have animal auctions. Racism, sexism and speciesism root and grow from the same stem of prejudice. Black and women’s lives matter, and so do those of animals. Any victim of discrimination that shares sentience is equally entitled to justice.

We are content to continue treating animals in the same way we once treated black people and women. An Animals’ Charter might seem utopian, but only because our law is an anachronism. English law, once progressive, is now retrogressive, out of harmony with the foresight demonstrated by other jurisdictions that recognise rights for animals. Our law is unfit for the purpose of protecting animals from those who could, and do, harm them: us.

The Nair Case (2000) involved the Government of India banning the training and exhibition of animals – bears, monkeys, tigers and panthers. Judge Kurup in the Kerala High Court upheld the ban, and his conclusion is a legal lodestone for legislators now and in the future:

“If humans are entitled to fundamental rights, why not animals? In our considered opinion, legal rights shall not be the exclusive preserve of the humans, [legal rights have] to be extended beyond people, thereby dismantling the thick legal wall with humans all on one side and all non-human animals on the other side. While the law currently protects wildlife and endangered species from extinction, animals are denied rights, an anachronism which must necessarily change.”

That wall is the equivalent of the Berlin Wall, which denied those behind it the twin limbs of freedom and justice. The legal wall we have conspiratorially constructed between animals and us is built with bricks of natural injustice.

Abraham Lincoln led the fight to abolish slavery, and his vision is a life lesson for English law: “I am in favour of animal rights as well as human rights. That is the way of a whole human being.” Lincoln, an attorney, saw the law as it was and as it should be.

English law introduced the first major animal welfare legislation in the world. Yet wild animals are now in peril as our power and retrogressive ethos is exercised by killing badgers and squirrels. In 2021 the Government intends to renege on an undertaking by making banned pesticides lawful (as covered in News, BBC Wildlife Magazine, April 2021), which could potentially decimate bees throughout our countryside.

Law, as our mirror of morality, should reflect and respect the fact that we are all ‘animals-in-law’. Animals exist as sentient entities in their own right and for their own interests and reasons. A legal system that sanctions tyranny over another species is immoral and unjust. Our failure to treat them within the true purpose of the level of law proves our prejudice. For animals to have a future that displaces their present and past, as the charter advocates, they need to be freed from our legal yoke. Animals will continue being victimised by our speciesism unless and until they are protected by the legal mantle of an ‘Animals’ Charter’.

NOËL SWEENEY is a barrister who specialises in human rights, criminal law and animal law. His latest book, An Animals’ Charter (Alibi, £12.99), is available now.

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