Problems on the Enforcement Judicature and Legal Supervision of Animal Welfare Laws

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REDVET. Revista electrónica de Veterinaria 1695-7504
2007 Volumen VIII Número 12B

REDVET Rev. electrón. vet. http://www.veterinaria.org/revistas/redvet
Vol. VIII, Nº 12B, Diciembre/2007– http://www.veterinaria.org/revistas/redvet/n121207B.html

Problems on the Enforcement Judicature and Legal
Supervision of Animal Welfare Laws

Song Wei : Professor and Lawyer Law Institute Univ. of Science and
Technology of China No96 Jinzhai Road, Hefei, 230026 CHINATel:
86-551-3953570 Fax:86-551-3606266 Email: songwei@ustc.edu.cn

REDVET: 2007, Vol. VIII Nº 12B
Recibido: 17.04.06 Referencia: BA019 Aceptado: 02.05.06 Publicado: 01.12.07
Este artículo está disponible en http://www.veterinaria.org/revistas/redvet/n121207B.html
concretamente en http://www.veterinaria.org/revistas/redvet/n121207B/BA019
REDVET® Revista Electrónica de Veterinaria está editada por Veterinaria Organización®. Se autoriza
la difusión y reenvío siempre que enlace con Veterinaria.org® http://www.veterinaria.org y con
REDVET® - http://www.veterinaria.org/revistas/redvet
Along with the economic development and social progress, the idea of animal
protection has gone deep into people’s hearts all over the world. Animal protection
includes not only reserving species resources and nursing the diversification of
creatures, but also animal health care and welfare. Compared with some other
countries, there exists severe imperfection on legislation for animal protection,
and the related legal system is nearly left blank. In view of such unfavorable state
and the rising appeal for animal protection, it is an inevitable trend to enact China
Animal Welfare Laws. Since the final purpose of legislation has to be reached
through the enforcement and realization of the law, there involve the problems on
the enforcement, judicature and legal supervision of China Animal Welfare Laws.

The enforcement means carrying out laws. It has two meanings: one in a broad
and the other in a narrow sense. The enforcement mentioned in this article is in its
narrow sense---the activity of carrying out laws performed by national executive
office and its public employees according to legal powers and procedure (executive
enforcement). The judicature is also called the application of laws. It refers to the
special activity of national judicatory offices applying laws to specific cases
according to legal powers and procedure. It can be judged from their meanings
Problems on the Enforcement Judicature and Lega1l Supervision of Animal Welfare Laws
http://www.veterinaria.org/revistas/redvet/n121207B/BA019 REDVET. Revista electrónica de Veterinaria 1695-7504
2007 Volumen VIII Número 12B

that the enforcement of Animal Welfare Laws is mainly carried out by executive
offices, while the judicature is by the court.

The clarification on the concept of enforcement is the premise and prerequisite for
the lawman to carry out laws. Compared with other laws, Animal Welfare Laws is
characterized by its close connection to science and technology, noticeable feature
of bi-disciplinary science and obvious moral nature, so it contains many
conceptions difficult to grasp. As far as the concept of “welfare” is concerned, it
involves several words like health, happiness and coziness. The difficulty in
understanding welfare lies in the definition of the three adjectives, for they are all
about subjective feelings of which each person has different criteria. Different
classification of the concerned objects may bring about great distinction on the
understanding of the concept. Another example, although it can be given a
definition in the law to which behavior belongs to “cruelty” or “animal
maltreatment” (behavior that causes unnecessary pain), the enforcement in
reality is often subjective. There are lots of such examples. If the executor cannot
make clear of those concepts, it will definitely influence the efficiency and effect of
enforcement.

The person executes a law should also clearly know the procedure of enforcement,
on the basis of clarification on concerned concepts. The enforcement of Animal
Welfare Laws belongs to executive enforcement that has two major links: one is to
ascertain the existence of an illegal fact, i.e. clear facts and accurate adjudication;
the other is the legal procedure. To my mind, the key point of the former is to
strengthen the propaganda of the law to make every citizen be aware of the
existence of Animal Welfare Laws, because animals cannot think as man does, nor
can they express the pain through language. If the whole society lacks the idea of
Animal Welfare Laws, the illegal commitment will not be investigated and dealt
with in time, which thereby brings great difficulty in adjudicating. On the contrary,
if the idea of Animal Welfare Laws goes deep into people’s hearts, then the illegal
commitment can hardly escape the denouncement of the others. It will also be
investigated and handled in time, and be adjudicated accurately. Besides these,
there leaves problems on the procedure. Article 31 in chapter Ⅴin Executive Penalty
Laws of People’s Republic of China, stipulates that the executive office should
inform the person concerned the fact, reason and basis of the decision of executive
penalty, and also notify his legal rights before the penalty is put into effect. If the
executor emphasizes only to inform the person concerned the fact, reason and
Problems on the Enforcement Judicature and Lega2l Supervision of Animal Welfare Laws
http://www.veterinaria.org/revistas/redvet/n121207B/BA019 REDVET. Revista electrónica de Veterinaria 1695-7504
2007 Volumen VIII Número 12B

basis of the decision, but neglects to notify his legal rights, it is an incorrect
procedure. Once the lawsuit enters the stage of reconsideration or litigation, it is
very likely to lose.

Although Animal Welfare Laws is aimed to “serve the animals”, the most work of its
enforcement is to make contact with people, so it is the prerequisite for smooth
enforcement to gain the respect of the public first. On account of that, strict
attitude is needed in the course of implementation. In my opinion, it should include
following aspects: 1. Civil enforcement---the executor should be polite, and should
not show arrogance or rebuke the person concerned. 2. Clear understanding of the
status of executing staff---it should be made clear that only the commitment of
professional executing staff or the unit and individual authorized by the
government according to the rules in Animal Welfare Laws can be called enforcing
public affair. Unauthorized zoologists or law workers have no right to enforce a law.
3. Neat appearance---the executing staff should normally keep strict requirement
to the appearance. For example, female staff should not be wearing long hair hung
over the shoulder, or heavily made up; the male staff should not wear long hair and
mustache, and have to be neatly dressed. Any staff cannot execute a law after
drinking.

There still exist many problems on the enforcement of Animal Welfare Laws.
What’s more, the executive offices have some deficiency unfavorable to protect
animal welfare, such as, the slow reflect, the underestimate on the severity of
some trivial animal abusing events, and so on. To my mind, the most effective way
to solve the above problems is to set up special sections of animal welfare in the
government on each level, and select professionally trained executive staff to form
the enforcing team. Furthermore, the section should be closely connected to the
public, positively listen to public opinions and warmly deal with the complaining.
Thus the enforcement of China Animal Welfare Laws will have a fine beginning.
The specific problem on the judicature of Animal Welfare Laws involves the
collection of evidence which includes material evidence, witness, documental
evidence and legal clauses. There is normally no difficulty in collecting the last two
kinds. The problem mainly exists in the collecting of material evidence and witness.
Material evidence includes abused animals, animal product against Animal Welfare
Laws, and other attached material, such as, poisonous and harmful medicine,
hunting equipment and some tools used to transport or kill animals. Some material
is hard to reserve intact, such as, meat products, dead animals and so on, so it
would be better to record first with auxiliary facilities like a camera. The time and
Problems on the Enforcement Judicature and Lega3l Supervision of Animal Welfare Laws
http://www.veterinaria.org/revistas/redvet/n121207B/BA019 REDVET. Revista electrónica de Veterinaria 1695-7504
2007 Volumen VIII Número 12B

location should be accurately recorded, with the collateral evidence and markers,
and also the signature of witness and the person concerned. In a word, all proof
connected to the material evidence should be collected. Witness includes the
behavior of the person involved in the case---the person, his testimony (written
record), and so on. The written record will take no legal effect, unless at least two
persons are present, and the records of all witness should be concurrent without
any contradiction. Finally the signature of the witness and the date are both
needed. In addition, the close connection of Animal Welfare Laws and to science
and technology, and the conspicuous feature of bi-disciplinary science require the
positive application of technological means in the course of collecting evidence.
Besides conventional skills, it includes also some biological means, such as, DNA
test. For example, in a case in the United Kingdom, the defendant was accused to
have dug into the badgers’ nest to disturb, catch and kill them. RSPCA carried DNA
test on the blood of the animal, and got sufficient evidence to prove the accused
has tortured and killed the badgers. The defendant was then sentenced to be in jail
for five months. From this, it can be seen that the judicature of Animal Welfare
Laws needs the support of science and technology.

The judicature in practice needs not only sufficient evidence, but also specific and
applicable clauses. However, a single Animal Welfare Laws cannot cover all the
aspects, and respectively make detailed provisions. Therefore, besides the
collection of evidence, the judicature of Laws depends more on the
perfection and completeness of the legal system on animal welfare. Animal
Welfare Laws mainly contains the principled articles. Specific and applicable
clauses are provided by related branch laws and legal files which keep being
perfected in practice. In addition, Animal Welfare Laws should closely cooperate
with Criminal Laws on criminal matters concerned with animal welfare. Other laws
connected to animals, such as, Grassland Laws, Forestry Laws, Fishery Laws and
so on, should supplement rules that is not involved in Animal Welfare Laws. What’s
more, judging from current situation, the major problem on the judicature of
Animal Welfare Laws is that some trivial cases can hardly find any solutions from
the court. On one hand, they are not severe enough to draw the court’s attention;
on the other hand, the trial of such cases requires high professional knowledge, so
common courts have difficulty in handling them. In view of that, it may worth
trying to absorb advanced experience from the United Kingdom: establish a
special court for animals under the Environmental court, appoint professional
judges to try animal welfare cases, and set up animal police special to investigate
the state of animal welfare.
Problems on the Enforcement Judicature and Lega4l Supervision of Animal Welfare Laws
http://www.veterinaria.org/revistas/redvet/n121207B/BA019 REDVET. Revista electrónica de Veterinaria 1695-7504
2007 Volumen VIII Número 12B


Besides the essential elements of enforcement, judicature and obedience to the
law, the legal supervision is indispensable to realize the law, which means to turn
the established legal regulations into reality in the society. The legal supervision is,
in its broad sense, the supervision over the lawfulness of all kinds of legal activities,
by all state offices, social organizations and citizens. The supervisal system of
China Animal Welfare Laws includes the supervision of executive offices, social
organizations, media and the masses, among which the supervision of executive
offices plays a leading role, and is the most crucial link.

The legal supervision of executive offices on Animal Welfare Laws should
emphasize on following aspects:

1. To study and spread Animal Welfare Laws. It includes:
(1) To actively report to the higher level so that the leaders may realize the
importance and necessity of Animal Welfare Laws and its supervision.
(2) To make the public accept and support the course of animal welfare by the
popularization through different channels in different forms; and to make the
enforcing staff understand and abide by the law, furthermore enforce the law
strictly by the education on laws and discipline.
(3) To publicize the law patiently and carefully among the regulated (such as,
the owner of the chicken farm, slaughterhouse, pets and so on), to move them
on emotion and teach them by reason so that most of them will be ready to
abide by the law and accept the administration of executive offices; and to
show them the laws and regulations on animal welfare, and accept their
supervision.
(4) To strengthen the horizontal propaganda to concerning departments in
order to gain their understanding and support, and also necessary supervision
on the enforcement of Animal Welfare Laws.

2. To build up the enforcement team and strengthen the inner management by
specialized training.

3. To clarify the focus of work, and intensify the strength of supervision. It will
definitely be accomplished, so long as we keep exploring and perfecting in
practice.

In addition, because of the wide influence, quick response, and shaking effect of
Problems on the Enforcement Judicature and Lega5l Supervision of Animal Welfare Laws
http://www.veterinaria.org/revistas/redvet/n121207B/BA019 REDVET. Revista electrónica de Veterinaria 1695-7504
2007 Volumen VIII Número 12B

media supervision, and the fact that supervision of the masses is the fundamental
strength of legal supervision in China, both of them have important meanings in
the supervision on Animal Welfare Laws. The supervision of social organizations is
also indispensable. I want to particularly talk about this matter as concluding
remarks. In fact, it is difficult to protect animal welfare completely, if only depends
on executive offices and the courts. China may also set up a national organization
like RSPCA in the United Kingdom. It may be named as China Animal Welfare
Association (CAWA). It is beneficial to both of the enforcement and judicature, as
well as the legal supervision of Animal Welfare Laws. It is a charity devoted to
animal welfare, and will definitely to fight with illegal behavior, when any ill
treatment to animals is discovered. The establishment of the association will do
good to the enforcement of Animal Welfare Laws: it can be authorized to deal with
small case that is not so severe (e.g. to play the role of animal police); as to some
severe cases, the association will propose litigation on behalf of the animal to
protect its legal rights. The object under the supervision of CAWA includes both
government and enterprises. It will supervise the executive work of the
government. Once the decision of government impairs the animal welfare (e.g. to
develop economy at the cost of animal welfare), the association will condemn and
urge the government to change its decision. The supervision of CAWA is conducted
by two means: the sign of animal welfare and litigation. Once an enterprise is
believed to have impaired animal welfare, it will not be awarded, or revoked the
sign of animal welfare, even or be prosecuted. In a word, although there exist
many difficulties and problems, we still have every reason to believe that the
course of animal welfare in China will definitely have a bright future.
Problems on the Enforcement Judicature and Lega6l Supervision of Animal Welfare Laws
http://www.veterinaria.org/revistas/redvet/n121207B/BA019