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The Swiss Citizens’ Initiative for Primate Rights Goes to Court

By Raffael Fasel

The Swiss like to praise themselves for having one of the strictest animal welfare acts worldwide. This praise is not entirely without merit: Switzerland has indeed played a pioneering role in global animal law in a number of respects and ranks among the most progressive countries in the World Animal Protection Index. In 1992, for example, it became the first country to ban battery cages and the first to provide constitutional protection for the dignity of nonhuman animals. Just recently, Switzerland took the lead in banning the killing of lobsters without prior stunning, effectively leading to a ban on boiling lobsters alive.

Even the most advanced norms of Swiss animal welfare law, however, are indistinguishable from the welfare laws of other countries in one crucial regard: they leave untouched the assumption that nonhuman animals are here for us to use. This holds true even for those nonhuman animals who are autonomous agents with a sense of self and an ability to remember the past and to plan the future—which is increasingly becoming a matter of public debate. In a joint report from 2008, the Federal Ethics Committee on Non-Human Biotechnology and the Federal Ethics Committee on Animal Experimentation criticized this state of affairs in light of the requirements of the animal dignity provision in Article 120(2) of the Swiss Federal Constitution. In particular, the committees suggested that nonhuman primates might require protection of their interests that goes beyond that provided by the current Animal Welfare Act.

Responding to this need for the protection of primates’ most vital interests, the not-for-profit Sentience Politics launched a citizens’ initiative in the Canton of Basel-Stadt to amend the Cantonal Constitution (which is the equivalent of the constitution of a U.S. state). The initiative specifically demands that the existing rights catalogue in the Constitution be complemented by a fundamental right to life and to bodily and mental integrity for nonhuman primates—in other words, not to be killed, held in captivity, or experimented on. In this blog post, the drafters of this initiative—Raffael Fasel, Charlotte Blattner, Meret Schneider, and Sophie Kwass—provide an account of the initiative’s goals, where it stands right now, and what is going to happen next.

A citizens’ initiative for the rights of nonhuman primates

In June 2016, Sentience Politics officially launched its initiative for the rights of nonhuman primates in the city-Canton of Basel. Basel is home to numerous international pharmaceutical corporations as well as to Switzerland’s oldest and most populated zoo. At the time of the launch, these institutions counted roughly 300 nonhuman primates whom they used and, often, killed for human purposes. Basel-Stadt is a canton with relatively progressive political leanings, which is why launching our initiative there promised to have both a significant impact for nonhuman animals and a reasonable chance of adoption.

In focusing on nonhuman primates, we followed the lead of the Nonhuman Rights Project (NhRP) and the Great Ape Project (GAP) which had laid the essential theoretical and practical groundwork not only for the rights of great apes, but also for primates more generally. As with the NhRP and GAP, the initiative’s rationale for singling out nonhuman primates is not anthropocentric: our initiative focuses on these nonhuman animals because there is overwhelming evidence showing that nonhuman primates possess the necessary capacities and fundamental interests for holding the rights to life and to bodily and mental integrity; the initiative does not focus on them because they are similar to human beings. To be sure, there are many other nonhuman animals who share these interests and capacities, but practical considerations led us to concentrate our efforts on nonhuman primates. The primary goal of our initiative, then, was to get a foot in the door that could later be opened further for other sentient animals.

Because Switzerland is a civil law country, claiming rights for nonhuman animals before courts is more difficult than in common law jurisdictions such as the US. We have therefore decided to pursue the legislative path by making use of Switzerland’s system of direct democracy. On the cantonal level, this allows citizens to initiate a referendum which, if adopted by the majority of the citizenry, can lead to an amendment of the cantonal constitution. For the first time in history, citizens would get to vote on the introduction of fundamental rights for nonhuman animals.

Going to court

Within only four months, our supporters collected the 3,000 signatures required for sending the initiative to the Cantonal Parliament which would have to decide on its legal validity. In particular, it had to test our initiative on its conformity with federal law. The purpose of this test is to ensure that citizens are not wasting their votes on issues that are unconstitutional and impossible to implement. On 10 January 2018, the Parliament followed a report issued by the Cantonal Executive and declared the initiative invalid.

Judging from the Executive’s report, the reasons for this declaration were essentially two-fold. First, the initiative is claimed to contravene the (federal) Swiss Civil Code which, according to the report, determines conclusively who is and who is not a legal person under Swiss law. Accordingly, the Cantonal Constitution of Basel-Stadt could not grant rights to nonhuman animals without violating federal law. Second, the report argues that our initiative also conflicts with federal public law in that it would confer on the Canton the power to regulate matters of animal protection which, according to Article 80 of the Swiss Federal Constitution, is an exclusively federal competence. At the same time, the report claimed, the initiative would encroach on nonhuman animal dignity as regulated in Article 120(2).

Although it is rare for courts to reverse a parliament’s decision of invalidity of an initiative, we considered it crucial to refute these arguments, firstly, because we are of the opinion that some of the arguments raised in the report are flawed and seriously misrepresent achievements of animal law and the interplay of public and private law. Secondly, we believe that a country praised for its high standards of democracy must provide a forum to discuss rights for non-human animals and let the people directly vote on this fundamental matter of justice. In Febraruy 2018, we have accordingly filed an appeal against the declaration with the Cantonal Constitutional Court. Rather paradoxically, then, our legislative path has brought us to the courts.

In our appeal, we reject the first argument by showing that the definition of legal personhood contained in the Swiss Civil Code does not apply to public law matters such as that of our initiative. The question of who has legal personhood and, hence, who can have basic rights is a genuinely constitutional issue. While the Federal Constitution is silent on the issue of nonhuman legal personhood, it allows cantons to extend legal personhood to other nonhuman entities, such as hospitals. Given the freedom of cantons to create new forms of legal personhood that go beyond the Swiss Civil Code, we argue that the Canton of Basel-Stadt does not violate federal civil law by introducing basic rights for nonhuman primates.

With respect to the second claim that our initiative also encroaches on federal public law, we argue that the federal legislator’s exclusive competence in matters relating to the protection of nonhuman animals (known as animal welfare) is structurally different from the basic legal rights we seek to enshrine on the cantonal level. Basic rights for nonhuman animals protect them as individual bearers of inalienable and inviolable individual rights. As rights-holders, nonhuman animals are subjects with their own entitlements and with interests that cannot not be systematically subordinated to the interests of those seeking to profit from their exploitation. According to the animal welfare paradigm, by contrast, nonhuman animals are considered to be mere objects for human use. According to Swiss law, cantons have the power to go beyond the federal list of basic rights and add further basic rights to their own constitutions. Historically, they have therefore often been pioneers when it came to the protection of new basic rights. As we argue, there is no reason why the Canton of Basel-Stadt should not also be able to take on such a pioneering role when it comes to the introduction of basic rights for nonhuman primates. Nor does this introduction of fundamental rights undermine nonhuman animal dignity as enshrined in the Federal Constitution—if anything, our initiative reinforces animal dignity by safeguarding primates’ fundamental interests in life and bodily and mental integrity.

Our final argument of the appeal draws on the direct democratic nature of the citizens’ initiative. Under Swiss law, the people must be allowed to vote on an initiative whenever there is doubt about its legality (this is generally referred to as the principle of in dubio pro populo). The many conversations we held with concerned citizens when collecting signatures confirmed that the people of Basel-Stadt have a vital interest in deciding themselves on whether or not to grant nonhuman primates fundamental rights.

For these reasons, we have requested that the Constitutional Court overturn the Parliament’s decision of invalidity and to submit the initiative to the citizens of Basel-Stadt so that they can vote on this pressing issue. Upon receiving our appeal, the Court has ordered a second round of correspondence and its ruling is expected in the coming months. If it dismisses our appeal, we will have the possibility to take the case to the country’s highest court, the Swiss Federal Court.

Moving toward rights for nonhuman animals

Our efforts to provide citizens with the opportunity to vote on the introduction of fundamental rights for nonhuman primates constitutes an important step in what is still a long journey for interspecies justice. Like the NhRP, we believe that our initiative forms part of a broader effort to stimulate public discourse on the inclusion of nonhuman animals in the legal and moral community. Such efforts may begin with those nonhuman animals whose systematic oppression is most obvious to a majority of people, but must be gradually expanded to other nonhuman animals who are in need of basic rights. Our actions must be tailored to and firmly embedded in the socio-political framework in which we operate and must be sensitive to the prevailing cultural beliefs about our relations with nonhuman animals. Our movement is not one for nonhuman animals only; it is a common interspecies movement towards a more just society.

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