an overview and assessment of the laws relating to the protection of animals in Singapore and Malaysia. The focus is on identifying the interpretations of the statutory offences of cruelty that will best promote their objectives and effectiveness.See concludes
There is a clear need for legal reform of existing cruelty laws in Singapore and Malaysia. For this purpose, the Animal Welfare Act 2006 (U.K.), which is drafted in a clear, simple and yet effective manner, serves as a good reference.
A. Clarity, Simplicity and Coherence
The offences under the AWA (U.K.) apply to “protected animals”, i.e. animals that are “commonly domesticated”, “under the control of man whether on a permanent or temporary basis”, or “not living in a wild state”. Wild animals will continue to be protected under the Wild Mammals (Protection) Act 1996. The penalties for cruelty are harsher under the AWA (U.K.). The likely reasoning is that once an animal comes within close proximity to humans, or is under the control of a human, there is a greater duty not to cause it unnecessary suffering.
The main cruelty offences are set out in s. 4. Under s. 4(1), it is an offence for any person to cause, through any act or omission, unnecessary suffering to a protected animal while knowing, or ought reasonably to have known, that his act or omission has or is likely to have such effect. It is also an offence, under s. 4(2), for a person responsible for an animal to permit, or to fail to take reason- able steps to prevent, the causing of unnecessary suffering to the animal by another person. It is therefore made plain that criminal liability could be found on negligence alone. This is important because, as demonstrated by cases such as Peterssen and Hussey, we cannot be certain that judges will adopt an objective test in the absence of clear statutory language. Section 4(3) also sets out a non-exhaustive list of factors to be considered when determining whether the animal’s suffering is unnecessary: (a) whether the suffering could reasonably have been avoided or reduced; (b) whether the conduct which caused the suffering was in compliance with any relevant enactment or any relevant provisions of a licence or code of practice issued under an enactment; (c) whether the conduct which caused the suffering was for a legitimate purpose, such as— (i) the purpose of benefiting the animal, or (ii) the purpose of protecting a person, property or another animal; (d) whether the suffering was proportionate to the purpose of the conduct concerned; whether the conduct concerned was in all the circumstances that of a reasonably competent and humane person. T(e)he influence of past case law is clearly noticeable. Paragraph (a) captures the meaning of unnecessary suffering explained in Hall and Isaacs. Paragraph (e) adopts the test of objective reasonableness expounded in the same cases, while paragraphs (c) and (d) codify the Ford v. Wiley test.
B. Improving Animal Welfare
Professor Broom defines the welfare of an animal as “its state as regards its attempts to cope with its environment”. The success (or failure) of the animal in so coping is to be measured in terms of degree. As Professor Radford expresses, “at any given time, the state of its welfare will be located on a point somewhere along a spectrum between very good at one end, indicating an excellent quality of life, and, at the other, so poor that it ultimately proves to be fatal”. Numerous studies have been conducted to identify the measures of welfare, focusing on the animal’s physiological and behavioural responses to the environment. In practical terms, one may say that the extent of an animal’s success in coping with the environment depends largely on the fulfillment of its
Where an animal is brought into human possession or control, it is not unreasonable to require the person responsible for its care to maintain its welfare at an appropriate level by ensuring that its needs are fulfilled. As Professor Whitfort said, imposing a duty to this effect is “not unnecessarily burdensome” since “[t]he choice to keep animals is voluntarily assumed”. The real breakthrough of the AWA (U.K.) lies in its imposition of such a duty. Section 9(1) of the AWA (U.K.) imposes a positive duty on a person responsible for an animal to “take such steps as are reasonable in all the circumstances to ensure that the needs of [the] animal... are met to the extent required by good practice”. Such “needs” would, according to s. 9(2), include: “(a) its need for a suitable environment, (b) its need for a suitable diet, (c) its need to be able to exhibit normal behaviour patterns, (d) any need it has to be housed with, or apart from, other animals, and (e) its need to be protected from pain, suffering, injury and disease”. Experts may be called to give evidence on other needs, especially of a particular animal or type of animal, and whether or not they have been met in accordance to good practice. As Professor Broom said, “[w]e need to know what animals prefer if we are to treat them in a humane way”. In many cases, however, the courts would be well qualified to determine the matter based on common knowledge. Good air, water, shelter, food and exercise (in the case of mammals) are obvious basic requirements. If a person who wishes to acquire an animal is unsure of what amounts to good practice, the onus is on him to seek professional advice before the acquisition.
The most important difference between ss. 9 and 4 is that the former does not require proof of (unnecessary) suffering. Traditional cruelty laws only apply when an animal has (unnecessarily) suffered, i.e. the welfare of the animal has become very poor. Animal welfare laws, on the other hand, seek to improve the lives of animals by ordering persons responsible for them on how they ought to be properly cared for. This will have a considerable impact on the lives of many animals, particularly those that spend substantial portion of their lives confined. In practical terms, s. 9 would allow enforcement action to be taken to assist an animal without having to wait until it has actually suffered. While suffering is the clearest indicator of poor welfare, an animal need not have suffered for its welfare to be poor. The animal may have yet to experience the effects of its poor welfare. For instance, the welfare of an animal may be poor, leading to increased risk of harm, although the harm has yet to occur. Professor Broom provides an example:
If the housing conditions or management procedures result in impaired immune system function and consequently increase susceptibility to disease, then the state of the animal is clearly affected and welfare is poor. This poor welfare occurs before any suffering, although it may well become worse as disease and associated suffering develop.
Likewise, the welfare of an abandoned animal may be poor because of the increased risk of it experiencing starvation, falling ill, being run down by vehicles, etc., even if none of these has yet to occur when the animal is found. Thus, cases of abandonment are now mostly dealt with under s. 9. Other examples of poor welfare without suffering include reduced fitness (physical or biological) and frustration.
In Singapore and Malaysia, there are presently piecemeal efforts (mainly through the requirement of licensing) to improve the welfare of animals in specific contexts: zoos, laboratories, farms, slaughterhouses, pet shops and exhibitions.
It is illogical not to extend the same to all animals under human care and control. A general welfare law will go some way towards addressing the AVA’s tendency to classify alleged cruelty cases as concerned with welfare issues. Like the cruelty laws, however, the welfare standards are susceptible to restrictive interpretations, often influenced by factors such as human benefits and established industry practices. Ensuring a minimum standard of welfare, while undeniably a step for- ward, is unlikely to do very much. It is therefore important that the courts and law enforcement personnel align their definition of good welfare with expert and public opinions, uninfluenced by industry biases.
It is essential that animal protection laws be drafted in a way that is clear and intel- ligible to all persons having a role to play in their interpretation and enforcement. At the same time, such laws must remain flexible enough to reflect changes in public opinion. As society progresses and moral values change, what was previously regarded as lawful infliction of suffering may now be regarded as cruelty. One way to achieve such balance is through the concept of unnecessary suffering, which has the obvious merit of flexibility. It is important, however, to not leave such a wide concept undefined. It is suggested in this paper that unnecessary suffering is best interpreted as imposing a test of objective reasonableness, relying on the hypothetical reasonable person to supply the acceptable standard of conduct. The attributes of this person will to some extent depend upon society’s attitude towards animal suffering and exploitation. Of course, such attitudes are not always collectively held. Industries that exploit animals for profit may not have the same attitude towards animal suffering as others, and may resist regulations which increase the costs of animal care. It is important that we give careful consideration to what best represents the moral values of our society and determine whether certain activities, although prof- itable and advantageous to humans, should nonetheless be outlawed. The extent to which we extend legal protection to animals may be seen as an indicator of our society’s moral progress towards a world of more kindness and respect, and less suffering.