BEZUBAAN: A COMPARATIVE ANALYSIS OF ANIMAL CRUELTY LEGISLATION IN SCOTLAND AND PAKISTAN

In 1985, Kaavan, a male Asian elephant was gifted by the government of Sri Lanka to Pakistan and was housed at the Islamabad Zoo in the capital of Pakistan. Upon the death of his partner, 22-year-old Saheli in 2012, Kaavan started living in isolation in the zoo, bobbing his head against the walls of confinement in loneliness and a plea for freedom. In May 2020, in response to campaigns led by prominent rights activists for concerns regarding his living conditions, Kaavan – regarded as the world’s loneliest elephant – was transported to a sanctuary in Cambodia, which is now his home.

Such is the case for numerous animals around the world who live their lives in agony due to a lack of concern for their rights and status. Their pain and suffering is directly a result of those who are responsible for ensuring their safety and rights by embedding them into the law. Effectively, this paper discusses the legislation intended to address the issue of animal cruelty, with a pronounced focus on the respective legislative frameworks of Scotland and Pakistan.

How are offences regulated?

The main sources of law that regulate the issues surrounding animal cruelty are the Animal Health and Welfare (Scotland) Act 2006 (AHW(S)A 2006)^[1], a devolved piece of legislation for Scotland (particularly Part 2) and the Pakistan Penal Code 1860 (PPC 1860)^[2] and Prevention of Cruelty to Animals Act, 1890 (PCTAA 1890)^[3] for Pakistan. The AHW(S)A 2006 has faced historical development, where it repealed the Protection of Animals (Scotland) Act 1912^[4], which in its own right effectively repealed the Cruelty to Animals (Scotland) Act 1850^[5]. This periodical assessment of the laws and subsequent amendment is reflective of a commitment to evolving animal welfare standards in line with ethical standards and modern understanding of animal suffering.

Conversely, the colonial era inheritance of PPC 1860 and PCTAA 1890 by Pakistan remains largely unamended, save for amendments to penalties (discussed further). Provincial acts like the Sindh Wildlife Protection, Preservation, Conservation and Management Act, 2020^[6] and the Azad Jammu & Kashmir (AJK) Wildlife (Protection, Preservation, Conservation and Management) Act, 2014^[7] also only protect certain species of wild animals and do not displace PCTAA 1890, which continues to govern provinces in Pakistan. This reliance on archaic statutes with a colonial history^[8] is suggestive of a symbolic rather than material dedication to the rights of animals in Pakistan. When contrasted with Scotland’s continuously evolving animal welfare legislative regimes, the Islamic Republic of Pakistan raises concerns as to the effectiveness of the standards it has established (or rather has been relying on for almost a century) to protect its animals. Additionally, Scotland benefits from its modern legislation and unified application across the jurisdiction, whereas Pakistan’s system causes more uneven enforcement across provinces, especially with those like the Khyber Pakhtunkhwa (KPK) Animal Welfare Bill, 2024^[9] whose amendments (although generally welcomed by the public) result in a stark difference in application from other provinces.

Which animals are covered under the legislation?

Part 2 of AHW(S)A 2006 section 16 defines an animal as a vertebrate other than man^[10]. It also allows government ministers to extend the definition of animal to include invertebrates of any description,^[11] thereby permitting the evolution of law with developing knowledge of animal sentience (where a further act recognising animal sentience was also introduced, namely the Animal Welfare (Sentience) Act 2022^[12]). Further, section 17 of the same Act defines protected animals as those commonly domesticated in the British Islands, under temporary or permanent human control, or not living in a wild state.^[13] This description reflects a modern, welfare-based approach which links animal protection to human responsibility, securing the protection of animals who are exposed to any kind of human-induced suffering or torture. The exclusion of wild animals reflects a coherent system in Scotland, where instead of protecting all manner of species in one form of legislation, subsequent laws are introduced in separate forms to address protection of several different species, e.g. the Protection of Badgers Act 1992^[14] and Deer (Scotland) Act 1996^[15].

By contrast, Pakistan’s legislative provisions are considerably vague, with Section 2 (1) of PCTAA 1890 merely defining animals as domestic or captured animals without providing any distinction between vertebrates or invertebrates or clarifying the scope of what constitutes as domestic or captured animals. Additionally, the lack of legislative provisions recognising animal sentience creates a greater scope for harmful procedures on a range of animals^[16] without risks of prosecution as there is no standard for interpretation available^[17]. There is, however, progress as the landmark judgment of Islamabad Wildlife Management Board v. Metropolitan Corporation Islamabad^[18] recognised animal sentience with reference to zoo animals, hence ordering relocation of animals kept in unsatisfactory conditions. Still, there is no precise definition within the legislation itself. This failure to clarify definitions poses major uncertainty regarding the legal status of several types of animals, particularly stray animals. The consequences of this have been an increasing issue over the years, where reports suggest that over 50,000 stray dogs are “slaughtered or poisoned annually on official order”^[19] in Pakistan, demonstrating the effect Pakistan’s lack of legislative precision has on its animals, an issue that Scotland has effectively avoided through its precise statutory framework.

Who can be held legally accountable?

There is a significant difference in the allocation of legal responsibility between both jurisdictions as well. An assumption of responsibility for an animal’s day-to-day care, or its ownership results in an individual being responsible for the animal in Scotland as provided by Section 18 (1-3) of AHW(S)A 2006^[20] . However, shared responsibility is also possible, allowing for employer/employee relationships to be covered in how animals are treated^[21] and abandoning an animal does not result in a person relinquishing their responsibility over it. Scotland effectively covers other possibilities as well by ensuring that adults are responsible for an animal who is under the care or control of a younger person aged 16 or under.^[22] What this allows for is responsibility to be reassessed through a lens of control, rather than title, allowing liability to arise in modern contexts such as animal-related business, zoos and farming.

The duty of care is then effectively imposed on the responsible individuals by section 24^[23] to address an animal’s needs and provide it with a suitable environment and diet among other things. This effectively recognises the contention that neglect and mismanagement can also be a cause of animal suffering^[24]. However, there exists a shortcoming that has potential to be addressed. Section 24 only sets out liabilities for failure to provide animals with the needs necessary for their welfare. Consequently, there is no effort to prevent suffering but rather to hold the perpetrator of suffering liable if it occurs. While there is a duty of care by way of criminalising an omission, it is not entirely present as a preventative mechanism, as liability is only imposed if welfare needs are unmet. This demonstrates a lack of ex ante regulation in Scotland to pre-empt suffering in the first place instead of only acting when there is a breach.

PCTAA 1890, on the other hand, has no devised concept of a “responsible person” like section 18, nor does it impose any duty equivalent to the provisions of Scotland’s section 24. Responsibility is only demonstrated with reference to individual misconduct instead of imposing welfare obligations on individuals according to the nature of their relationships with the animals in question. Consistently across the legislation, the offences can be committed by “any person”, and no particular class of persons have specific responsibility. While this results in a broad class of persons being potentially prosecutable, it undermines an act-based structure and only limits liability to acts of cruelty. The legislation is excessively vague, preventing a responsibility-based model that considers individuals welfare obligations which results in a lack of accountability for neglect on individuals with specific responsibilities over animals. The lack of documented criticism on these provisions, coupled with the few calls for reform also falling on deaf ears^[25] has resulted in the legislation remaining unchanged and limited actions being taken to hold relevant parties responsible for breach of obligations.

All hope does not seem lost though, as the Khyber Pakhtunkhwa Animal Welfare Bill 2024^[26] greatly reforms certain provisions, with Section 2(q) of the Bill defining owners and expanding on their responsibilities under Section 16(l). These provisions significantly mirror the welfare obligations imposed on individuals responsible for animals in Scotland. And while the Bill as whole only has implementation in one province of Pakistan, i.e. Khyber Pakhtunkhwa, there is hope that other provinces may follow suit and proceed towards an overhaul of the archaic legislation that has been in use since the conception of the country.^[27]

How is cruelty defined, is there a mental element?

Section 19 of AHW(S)A 2006 and section 3 of PCTAA 1890 respectively criminalise cruelty, with section 19 setting the metric of criminalising “unnecessary suffering” to protecting animals and holding individuals responsible for an animal liable for either causing unnecessary suffering or permitting another person to cause (or prevent them to cause) unnecessary suffering by action or omission^[28]. AHW(S)A 2006 further provides a framework to determine whether suffering is unnecessary through section 19(4)^[29], suggesting the consideration of aspects like whether suffering could be avoided, whether the conduct was for a legitimate purpose and whether the suffering was proportionate to the conduct. The application of the Ford v Wiley^[30] test to conduct a proportionality analysis on whether the benefit to causing suffering to an animal justifies the suffering caused is an effective manifestation of the provisions in section 19(4) and has been widely used. The effect of these standards is to embed ethical judgement into the definition of cruelty, fully assessing whether certain actions are necessary or not. The supplementary offences of mutilation, cruel operations, poisoning and animal fighting further exemplify this standard by targeting welfare-compromising actions.^[31]^[32]^[33]^[34]

The assessment of the mental element here is of whether the person knew, or ought to have reasonably known that such an action would cause or would be likely to cause suffering to an animal. This results in liability for negligence as “the Hall^{^[35]} and Isaacs^{^[36]} cases make it plain that the reasonableness of the defendant’s conduct is to be judged by the standards of a reasonably humane and caring person”^[37]. These methods of assessment and available case law in the UK greatly assist Scotland with measuring the metrics on which persons are to be judged on, when instances of neglect and mismanagement arise instead of purely deliberate cruelty.

Section 3 of PCTAA 1890 on the other hand, prescribes an act-based definition of cruelty^[38], where the inclusion of “unnecessary pain or suffering” functions more as a qualifying descriptor to the list of prohibited acts. Examples of acts include overdriving, beating, binding and overloading among others, similar to section 1(1) of the now repealed Protection of Animals (Scotland) Act 1912^[39] . Here, the PPC 1860 also lays down a closed list of prohibitions by criminalising the “killing, poisoning, maiming, or rendering useless”^[40] of certain animals according to their economic value, with the offence being more serious if the economic value of the animal is high, considering protection of animals as a form of property right as compared to their separate moral status. Even when prohibiting killing animals in an “unnecessarily cruel manner”, there is no guidance available as to what could constitute as unnecessarily cruel^[41]. Accordingly, the identification of cruelty struggles to be done on the basis of a welfare impact or benchmark, but rather directly by the list of provided forms of mistreatment. The mental element remains largely implicit, with little articulation of concepts such as foreseeability, reasonableness, or negligence.

The approach both jurisdictions take while defining cruelty and the mental element is incredibly significant. Scotland’s provisions assess cruelty on grounds of assessment of reasonableness, responsibility and outcomes^[42], reinforcing accountability for negligence as well as deliberate mistreatment. Pakistan’s assessment for cases of cruelty, however, is through a list of individual actions, limiting liability to actions only within the bounds of legislation. This may result in stricter interpretation, hence excluding harm arising from negligence.

That being said, broader interpretation of the provisions of PCTAA 1890 was encouraged by J. Athar Minallah in Islamabad Wildlife Management Board v. Metropolitan Corporation Islamabad, where in construing the meaning of unnecessary pain and suffering, he opined that “it is settled law that beneficial statutes must not be

construed too restrictively and rather should be given the widest possible interpretation.”^[43] The scanty, but available precedent has attempted to mitigate the strictness of the provisions of PCTAA 1890, although, relying on consistent judicial creativity may prove to be a rather tedious process which could be resolved with a more coherent legislation addressing conditions of unnecessary suffering and intent in the manner adopted in Scotland.

Does the Law Cover Acts, Omissions, and Penalties?

An expansive approach to liability is taken in Scotland, where the AHW(S)A 2006 includes both positive acts as well as omissions. While section 19 extends cruelty offences to not just positive acts but omissions too, section 24, imposes omission-based liability on the responsible person to do “all that is reasonable in all the circumstances to ensure that needs of the animal are met to the extent required by good practice”^[44]. These provisions allow for a rise in liability for both actively inflicted suffering and that which results from a failure to act. This is representative of a development in cruelty law, to consider the effects of both directly incurred harm as well as that caused by neglect and mandate early intervention by animal protection agencies like RSPCA^[45] to prevent further breaches from occurring. This framework is capable of proving a stepping stone in reducing the number of section 19 and 24 offences, which currently represent “78% of all charges reported to the PF by the Scottish SPCA with offence dates from 2011 onwards.”^[46]

Pakistan’s cruelty framework, on the other hand, is largely act-based as PCTAA 1890 focuses primarily on positive acts such as mistreatment, beating, overdriving etc. and hence a duty of care comparable to AHW(S)A 2006 is currently not established. The result this provides in the long run is that indirect suffering or failure to provide animals with adequate living conditions falls outside criminal regulations and limits the bounds of prosecution.

Subsequent to reports from organisations urging Scotland to raise its sentencing terms^[47], the Animals and Wildlife (Penalties, Protections and Powers) Scotland Act 2020 was introduced to amend the provisions of section 46 of AWH(S)A 2006, raising imprisonment to a maximum of 5 years. Scotland’s penalties signal condemnation of cruelty while simultaneously reducing reoffending risks by imposing custodian sentences and fines^[48] as well imposing deprivation and disqualification orders, preventing offenders from being in possession of animals^[49].

In the same vein, Pakistan also demonstrated progression in raising penalties for offenders. The Bill passed by the National Assembly of Pakistan to amend the PCTAA 1890, amended the initial section 3 penalty of PKR 50 to PKR 100,000, with the minimum penalty of at least PKR 10,000. For the section 5 offence of killing animals in an unnecessarily cruel manner, the amendment replaced the initial penalty of PKR 200 with PKR 300,000 and a minimum of at least PKR 50,000. The imprisonment terms, those of a maximum of one month in section 3 offences and a maximum of 6 months for section 5 offences, however, were not amended.

While a numerical comparison of both jurisdictions penalties may undoubtedly exaggerate the difference between the two, notwithstanding the stark disparity in minimum wages, socio-economic conditions as well as exchange rates, this does not fully demonstrate how both jurisdictions treat penalties. The embedment of penalties in Scotland is in a larger enforcement framework, where provisions imposing positive duties work in tandem with the penalties for failure to comply with them. Pakistan, on the other hand, seems to have treated a particular symptom rather than address the weakness of the regime itself^[50]. This results in Pakistan’s penalties still struggling to deter instances of abuse and animal welfare organisations being unable to provide the necessary support due to lack of funding^[51], a position reflective of its low ranking on the Animal Protection Index.^[52]

Ultimately, Scotland and Pakistan’s divergences are a result of differences in legislative age and underlying legal philosophy. Scotland’s framework sees cruelty from a welfare-based lens, placing metrics of responsibility and intent at the forefront. Pakistan on the other hand, seems to follow an act-based model, where cruelty is assessed through definitions of misconduct and sanctions remain largely insufficient within the structure of the regulation. Regardless, the contention still exists as to whether these provisions are well founded in promoting animal welfare. This concern was voiced previously by leading Animal Welfare Law expert, Michael Radford OBE with reference to the now repealed Protection of Animals Act 1911: “The offence of cruelty merely defines the standard below which conduct towards animals becomes unlawful. It imposes no requirement to improve upon that basic benchmark.”^[53] While Scotland’s approach is more welfare-centred, both legislations essentially treat liability as a reactive model, relying on breach, rather than promotion of improved welfare standards. But that line of inquiry lies beyond the scope of this disquisition…

^[1] Animal Health and Welfare (Scotland) Act 2006

^[2]Pakistan Penal Code 1860 (Act XLV of 1860)

^[3] Prevention of Cruelty to Animals Act 1890 (Act XIV of 1890)

^[4] Protection of Animals (Scotland) Act 1912

^[5] Cruelty to Animals (Scotland) Act 1850

^[6] Sindh Wildlife Protection, Preservation, Conservation and Management Act, 2020

^[7] Azad Jammu & Kashmir (AJK) Wildlife (Protection, Preservation, Conservation and Management) Act, 2014

^[8] Lotta Teale and Owais Awan, ‘Recognising the Legal Rights of Animals in Pakistan: A Pathbreaking New Judgment’ (2020) 4(1) UK Journal of Animal Law

^[9] Khyber Pakhtunkhwa Animal Welfare Bill, 2024

^[10] Animal Health and Welfare (Scotland) Act 2006 s 16

^[11] Ibid s 16(3)(a)(i)

^[12] Animal Welfare (Sentience) Act 2022