This article sets our the argument for adding to the Constitution of Portugal a provision for the Protection of Animals.
A sentient being is a being that, by virtue of his characteristics, has the capability of experiencing suffering, both at physical and psychological levels, regardless of the species to which he belongs. Only the members of the animal kingdom can be sentient, although not every animal species assemble the characteristics that would make their members be considered as sentient beings. It is to the animals that are in fact sentient – and that, consequently, fall in the definition initially advanced – that the present document refers to.
Sentient animals are beings that have a physical and psychological sensibility, which allows them – in the same way as humans – to experience pain and pleasure. And it is certain that they naturally seek, by all means available to them, to avoid painful experiences. Animals also have a life and a liberty of their own, which they naturally seek to preserve, once again in the same way as humans do. And, exactly in the way humans look at the experience of suffering and to the deprivation of life and liberty as harms that should be avoided to themselves, they should also look at the experience of suffering and to the deprivation of life and liberty as evils that should be avoided to animals, since animals, just as humans, even considering the differences, do not have any interest in being subjected to these harms.
In fact, humans look at suffering as having a moral relevance in the sense that every act that consists in deliberately inflicting suffering to another person is considered a morally condemnable act. In the same way, every deliberate act of life and liberty deprivation of another person is considered a morally unacceptable act. Laws in all human societies that prize life, liberty and happiness as fundamental values reinforce these fundamental principles. Still, these legal principles rarely are extended to animals, although they too have no interest in being subjected to any kind of suffering, deprivation of life or of liberty.
Presently, the respect for animals is a moral and social value that assembles a very solid consensus in human societies, imposing itself with more or less strength depending on the historical, social and cultural circumstances of each society. There is a fast growing group of states where the moral and social value that the respect for animals represents is also recognized as a legal value, which makes animals benefit from specific legal protection. However, Portugal has unfortunately been a sad exception in this matter. Despite the fact that exists some animal protection legislation, all these legal precepts are far too permissive and have severe omissions, being clearly insufficient, namely because usually there is no serious penal sanctions supporting them. This makes this legislation so ineffective that its existence and validity is practically indifferent. In this context, it is not difficult to imagine to which sort of common violences and cruel acts are subjected thousands of animals every year, without the intervention of the Portuguese State to stop or change this situation.
The truth is that the Constitution of the Portuguese Republic itself – the Fundamental Law of the State, from, and in accordance to, which all other legislation is established – does not refer at any time to the protection of animals, not even when it refers to the protection of the environment and nature. It is important to state that the Portuguese constitutional order is characterized by its humanist outlook, defending such fundamental values as liberty and human dignity, from which follow the protection of the most important rights, liberties and guaranties. However, the Portuguese constitutional text fails when it restricts the recognition of these values and its legal establishment to humans, totally forgetting animals, without determining any guidance that offers a constitutional foundation for the protection of the latter.
These values in which the Constitution of the Portuguese Republic is based and the principles it establishes are, undoubtedly, of an extreme importance. Still, taking into account the already exposed reasons, it is a mistake, when we are already in a new century and a new millennium, to keep on despising animals from a legal point of view, namely at a constitutional level.
The lack of a constitutional ordinance of this kind has in fact permitted that all legislation that is proposed and submitted to protect animals fail in having, on its own, direct and unquestionable constitutional groundwork, which severely weakens this legislative proposals, among other adversities that these face. Obviously, if the Constitution contemplated animals, recognizing that these have fundamental interests that need to be satisfied and, as such, determining that animals are worthy of respect, being entitled to the support and protection from humans, any legislative proposal would have a much more solid foundation, since it would be based in what the constitutional text would already had established, which would change the situation completely.
Therefore, it follows that there is not only a moral imperative of respecting and protecting animals, but also a moral and political imperative of adopting the necessary measures in order for this respect and protection to have legal reflections. Evidently, it is not pretended to declare that the interests of animals should not be sacrificed; what matters to achieve in the present moment is to assure that animals have a minimum protection that preserves them as much as possible from any deliberate act of infliction of suffering, of imprisonment or of life deprivation, especially when such an act is not really necessary. From this standpoint, the protection of the interests of animals, and especially the rejection of the unnecessary suffering are also ethical dimensions of a culture of citizenship, based on shared values of a common civilization. Therefore, in order to correct this serious failure in the Fundamental Law of the Portuguese Republic, as the fulfillment of such a moral and political imperative, it should be introduced a new precept in the Constitution of the Portuguese Republic that establishes the protection of animals as a duty of the State.
Following other countries´ examples, such as Brazil – or, closest to Portugal and as an even more important reference, the great example of Germany, that has recently introduced the protection of animals in its Constitution, becoming the first European Union member-state to do it –, and following not only these examples, but assuming itself as an example for many other countries, Portugal should, starting from now, declare itself as a country which moral and civilizational's evolution stays far from being distant to other countries´. Portugal should consequently prove that it could even innovate and show advances in relation to other states, attributing an even greater, and fairer, importance to the dignity of animals than is usual.
This measure also is intended to answer to an effort of harmonization of the Portuguese legislation and the Portuguese constitutional order with the several treaties, conventions and other legal acts of international dimension that have been established by supra-national organizations and institutions as important as the United Nations and the European Union, among others. The reference to the importance of the protection of animals and their welfare that the Protocol on Animal Welfare annexed to the Amsterdam Treaty recognizes and determines is also one of the most consistent legal foundations for the necessity of including in the Constitution of the Portuguese Republic a specific ordinance about the protection of animals.
Considering the present Constitution of the Portuguese Republic, in accordance with the last Constitutional Revision of 2001, it is hereby proposed the introduction of the following article in the Constitution, in the Title III – Economic, social and cultural rights and duties , in Chapter II – Social Rights and Duties , figuring from now on as the Article 73 rd of the Constitutional text, with the following formulation:
PART I – Fundamental rights and duties
TITLE III – Economic , social and cultural rights and duties
CHAPTER II – Social rights and duties
Article 73 rd
(Protection of Animals)
1. The animals that have a physical and psychological sensibility that allows them to experience suffering are beings intrinsically worthy of respect and protection by all the people and the by the State itself.
2. It is duty of the Portuguese State to promote and insure the respect from the animals that have characteristics pointed in the previous number, taking the necessary measures to protect and preserve them from all suffering, imprisonment and death that are not justifiable.
3. The animals that have the characteristics pointed in the number 1 of this article will only be subjected to the infliction, to imprisonment or to the induction of death in the cases in which that really is necessary and happens according to specific legislation that will command such situations.