Swiss Court Rules Citizens Allowed to Vote on Primate Rights
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FROM Raffael Fasel and Charlotte E. Blattner, NHRP
March 2019

The judgment is a major success for nonhuman rights advocates because it declared valid a popular initiative that aims to extend the existing bill of rights of the Canton’s constitution by adding fundamental rights to life and bodily and mental integrity for nonhuman primates.

In June 2016, Sentience Politics launched a citizens’ initiative in the Swiss canton of Basel-Stadt with the aim of granting nonhuman primates constitutional rights to life and bodily and mental integrity, which we wrote about in an earlier post for the NhRP blog.

Switzerland is a federal state like the US and has a total of 26 “cantons”—the Swiss equivalent of a US state. As is common in some US states, the Swiss cantons provide their citizens with direct democratic tools to participate in the legislative process, giving them, for example, the possibility to propose amendments to the cantonal constitution by way of a citizens’ initiative.

In our last post, we wrote about how, after supporters of the primate initiative were able to collect the necessary signatures, the Cantonal Parliament, based on a report by the Cantonal Executive, declared the initiative invalid in January of 2018 mainly on two grounds. First, the initiative would contravene the Swiss Federal Civil Code, which, according to the Executive, determines conclusively that nonhuman animals do not qualify as legal persons [with rights] under Swiss law. Second, the initiative would require the Canton to enact new laws on animal welfare, an area where the federal government enjoys exclusive jurisdiction.

Supporters of the initiative appealed the Parliament’s decision at the Cantonal Constitutional Court, asking it to validate the initiative. On January 15, 2019, in a detailed and highly anticipated decision, the Cantonal Constitutional Court ruled that the primate rights initiative is valid and must be submitted to the people of Basel-Stadt for a vote, paving the way for the first ever direct-democratic vote on whether some nonhuman animals should be granted the fundamental rights to life and bodily and mental integrity.

What the Court said

At the heart of the Court’s January ruling are its considerations on whether the cantonal primate initiative was in conflict with federal law—and would therefore be invalid.

The Court first considered if, as the Executive alleged and the appellants contested, the Swiss Federal Civil Code that regulates legal personhood precludes animals from having fundamental rights. The Court found that it is possible for the initiative to establish rights for primates without granting them distinct legal personhood, i.e. legal personhood for animals that is separate from the legal personhood of natural and legal persons, as this would require a change of the Civil Code. It held that the Civil Code focuses on relations between private citizens, rather than on the structurally different relationship between private entities and the state, which is governed by public law. The capacity to hold basic rights forms part of public law because it goes to the heart of the exclusive relationship between an individual and the state. Accordingly, federal powers in civil law do not preclude cantonal public law from granting basic rights to nonhuman primates. In the words of the Court, within the realm of public law, cantons are free to “expand the circle of rights holders beyond the anthropological barrier.”

The Court next considered if the initiative deals with animal protection, which is generally considered to be subject to the jurisdiction of the federal government, as stipulated in the Swiss Federal Constitution. Against the argument of the appellants that the primate rights initiative wants to achieve fundamental rights for animals instead of improved welfare protection, the Court argued that the initiative aims to better protect primates and secure their welfare and that it uses the instrument of fundamental rights to achieve this aim. In other words, rights are not categorically different from welfare protections in the Court’s view; they are simply a means to achieve better welfare for animals. The Court reasoned that the primate initiative would conflict with federal law (in particular the Swiss Animal Welfare Act (AWA, 2005)) if it were to force private individuals to observe stricter standards than the ones contained in federal animal welfare legislation. So if the appellants wanted primate rights to apply to private parties in addition to state bodies, this would violate federal law.

Rather than declaring the initiative invalid, however, the Court held that there is nothing in the Constitution or the AWA that restricts cantons from imposing on their own organs stricter protections by creating fundamental rights for primates. As the Court clarified, cantons have the right to set up more demanding standards for their own institutions as part of their organizational autonomy. Hence, it noted that Basel Zoo, which kept in captivity around 130 nonhuman primates in 2015 and is run by a private stock company, would not be affected by the initiative. Cantonal public organizations, however, such as public hospitals and the cantonal university (the University of Basel), would still be required to respect primates’ rights (with the caveat that these rights would have to be weighed against the University’s right to scientific freedom). Because the Canton of Basel-Stadt thus has the legal authority to establish rights for primates that bind its own organs, the initiative must be put to the vote of the people. As the Court held, it is an entirely political (as opposed to legal) question whether the Canton of Basel-Stadt should establish rights for primates—a question the people of Basel-Stadt have to answer democratically.

In its final considerations, the Court turned to how the primate rights initiative could be implemented practically—a clear sign that it took seriously the applicants’ demands. It found that primates would need legal proxies, for which the Canton would have to establish a legal basis (laws, regulations, etc.). According to the Court, the task of representing primates’ interests could be carried out by special officers at the cantonal department for veterinary services, by the agency mandated with protecting children and adults, by an ombudsperson, or by an independent legal advocate for primates. As the Court added, primates’ rights could also be exercised collectively, such as by vesting protection organizations with the right to file suit and appeal decisions, in line with the Federal Code of Criminal Procedure.

What this means for nonhuman rights in Switzerland

The judgment is a major success for nonhuman rights advocates because it declared valid a popular initiative that aims to extend the existing bill of rights of the Canton’s constitution by adding fundamental rights to life and bodily and mental integrity for nonhuman primates. To be sure, the judgment came with notable limitations because it binds only public organs and because of its finding that rights are not categorically different from welfare protections. Further, because the appellants effectively won in court, they cannot appeal these findings under Swiss procedural law. But despite these downsides, the judgment has many victories hidden beneath the surface. Among these are the fact that the Court did not see an obstacle for primate rights in the fact that the continental European legal tradition has so far resisted conferring basic rights on beings who are not human (or are corporations). It therefore did not to take issue with the idea of extending the concept of fundamental rights-holdership beyond existing categories of rights-holders. What is more, the Court accepted that nonhuman primates, in particular, can be holders of fundamental legal rights. It did not grapple, for example, with the question of whether nonhuman primates possess certain capacities, such as self-awareness, autonomy, or the capacity to bear duties. Finally, the Court endorsed the view that cantons or states are free to recognize animals as rights-holders even when the federal system does not.

What’s next

A few weeks after the judgment was published, six members of the Parliament of Basel-Stadt appealed the Cantonal Constitutional Court’s decision before the Swiss Federal Supreme Court. Supporters of the initiative are now in the course of formulating their response and expect the Supreme Court to deliver its judgment in the coming year. Should they win this case, the people of Basel-Stadt will be able to vote on the primate initiative. The earliest possible date for the vote will be November of 2019, but a vote in October of 2020 seems more likely. Before it comes to a vote, the Parliament will have the opportunity to decide whether it wants to present a counter-proposal to the people, who could then decide for the primate initiative; the (likely weaker) counter-proposal; or the status quo. If the vote will be held, it will be the first time in history a people gets to decide democratically on whether nonhuman animals should have basic rights.

Regardless of how the Supreme Court will decide the matter or whether the people will ultimately reject the initiative, the judgment of the Cantonal Constitutional Court can be considered a milestone in the development of nonhuman rights in Switzerland and beyond. The judgment contains important insights not only as to how nonhuman rights can be implemented in federally organized states but also how direct-democratic means can be used to overcome some of the hurdles (such as standing) which animals face in many jurisdictions across the world. The court went to great lengths to make sure the people of Basel-Stadt get to cast their vote. It is now in the hands of the people to decide whether nonhuman primates, too, should have the rights most dear, fundamental, and non-negotiable to all of us.

How people can help in Switzerland, and the world at large

The people of Basel-Stadt can help support the primate initiative by contacting their representatives in parliament and urging them to take a stand for the initiative. More importantly, they can try to raise public awareness of the need for nonhuman rights so as to increase the likelihood of the initiative being adopted if and when it will be put to a vote by the people of Basel-Stadt. For the people of Switzerland and, indeed, the world more generally, it is equally important to win over the hearts and minds of those who will likely soon be able to vote on similar proposals to extend rights to nonhumans or elect representatives who could vote on such proposals.

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