Global Journal of Animal Law

Current Issue (2015-02)

Foreword

GJAL 2/2015

EDITOR'S FOREWORD:

Presently Animal Law as a new branch of law is in an intense progress. The focus on animals and the endeavor to withdraw from the anthropocentric view makes the subject to something unique and unparalleled. The GJAL is participating in the development by publishing analyses both from a theoretical and practical point of view.

Our fundamental understanding of animals as legal entities is changing. Inter alia, it is no longer given that animals are, or should be, recognized in legal terms as 'objects' or 'things'. This change is also noticeable in the articles in the current issue of the Global Journal of Animal Law (GJAL). Aleksandra Lis and Tomasz Pietrzykowski analyzes in the peer reviewed article Animals as Objects of Ritual Slaughter: Polish Law after the Battle over Exceptionalness Mandatory Stunning the statutory rules and demands in the Polish Constitution, the Polish Animal Protection Act and the EU Regulation 1099/2009, with the interpretation made by the Constitutional Tribunal in Poland concerning stunning before slaughter in relation to the freedom to exercise religious beliefs. The effects of the ruling, as explained by the Constitutional Tribunal, include the legality of ritual slaughter irrespective of the purpose and the final destination of the meat produced by this method. The authors underline that this does not only mean that ritual slaughter is an exemption from the mandatory stunning in Polish law, but it actually means slaughter performed by commercial companies to deliver kosher and halal meat abroad, which consequence goes far beyond the scope of the constitutional complaint advanced by the claimants. The authors argue that the judgment is based on a conception of sentient animals as objects (of religious rituals) without consideration of their subjective interests.

In the peer reviewed article Puppy Farming and the Constitutionality of Breeder Regulation in Hong Kong, Eric KH Wong presents and analyzes comprehensively the legislation of puppy farming in Hong Kong. The author underlines that the law does not distinguish between the rightist position and the welfarist position, because they both aim to promote the rights and interests of animals. The problem, claimed by the author, is that animal welfare (the rights and interests of animals) is currently subsumed under a public health regulation. The topic highlight the tension between animal welfare and constitutional rights, touched on the property status of animals. The author argues that a number cap imposed through a properly drafted regulation should be constitutional. Additionally, animal welfare can validly justify restriction on property rights. The main question is the weighing of animal welfare against private ownership, when the former is neither regulated nor hindered by the Constitution. The author argues that both regulation and abolition of commercial breeding can be constitutional.

The current issue contains also a short book review by Tara C. Zuardo, a Wildlife Attorney at the Animal Welfare Institute in Washington D.C.: What Can Animal Law Learn From Environmental Law. The book is edited by Professor Randall S. Abate and published in September 2015 by the Environmental Law Institute.

The next issue of GJAL will be published in June 2016 and the dead-line for submissions is 31 March 2016.

On behalf of the Advisory Board of GJAL:

Season's Greetings with all good wishes for the New Year!

Anna Birgitta Wahlberg
Editor-In-Chief

Articles

Aleksandra Lis and Tomasz Pietrzykowski : Animals as Objects of Ritual Slaughter: Polish Law after the Battle over Exceptionless Mandatory Stunning

Abstract

The paper discusses the problem of ritual slaughter of farm animals in the context of the judgment of the Polish Constitutional Tribunal issued in 2014 according to which exceptionless prohibition of killing animals without prior stunning violates constitutional right of free exercise of religious beliefs. The ruling reopened the way to legally slaughter non-stunned animals in Poland if justified by the religious grounds. Moreover, it made it possible not only to slaughter animals according to the prescriptions of ritual to satisfy the needs of small, local religious minorities living in Poland (mainly Jewish and Muslim) but also to produce religiously certified meat for the purpose of the commercial, massive-scale export. As a consequence, Poland has ceased to be one of few countries whose legal systems did not exempt killing by methods required by religious rites from the general obligation to stun animals before slaughter. The authors describe the legal background of the ruling in the Polish as well as EU law as well as the arguments furnished by the Constitutional Tribunal to support its verdict. Furthermore, the opinions of dissenting judges as well as some jurisprudential criticism that followed the decision of the court are summarized. Finally, the authors argue that the judgment is based on a fallacious idea that the law may continue to regard sentient animals as an object of religious rituals without any consideration of their subjective interests. Alternatively, the authors advocate the view that suffering of a sentient being is a legitimate limitation of the constitutional freedom of religious practices.
Eric KH Wong : Puppy Farming and the Constitutionality of Breeder Regulation in Hong Kong

Abstract

Conditions at the kennels were alarming in Hong Kong. The Government seeks to amend the Public Health (Animals and Birds) (Animal Traders) Regulations (Cap 139B) to introduce a dog breeder licensing regime. The regime has implications on private property rights which are constitutionally guaranteed and could face judicial challenges from commercial breeders. It is also problematic in addressing animal welfare concerns through powers under a public health ordinance. Using the number limit on breeding dogs as an illustration, this essay intends to develop a framework for assessing the constitutionality of welfare regulations in Hong Kong. Whilst the protection of public health and rights of others are strong and objective justifications, public morality, animal welfare and the prevention of cruelty are all legitimate aims that can be recognized in our constitutional order to justify the breeder regime. A discretionary limit on the number of breeding dogs imposed with regard to licensee's manpower, floor area and other factors will link the regime with substantive concerns and establish proportionality. Indeed there are little difficulties in enacting a welfare regulatory regime that is constitutional. The problem with the proposal is that the rights and interests of animals cannot and should not be subsumed under a public health regulation. The proposed breeder regulations are constitutional only to the extent of preserving hygiene and what we need in Hong Kong is an Animal Welfare Ordinance.
Tara C. Zuardo : Book Review: What Can Animal Law Learn From Environmental Law