Cultural Significance v Animal Rights: The Constitutional Challenge to the Ban on Bullfighting in Catalonia

Bullfighting was banned in the autonomous Spanish region of Catalonia on 28 July this year, with the ban coming into full effect in 2012.

Now, three months to the day later, the Spanish Constitutional Court (housed in a rather Beehive-esque building) has accepted an appeal lodged by the Partido Popular (People’s Party, PP) challenging Catalonia’s ban on cultural, economic and administrative grounds. The PP is a conservative, nationalist party known for such other legislative projects as restricting immigration to Catalonia and deporting immigrants who have not learnt the Catalan language to proposed minimum standards.

If the appeal is successful, the Court may overturn the regional ban (I have written in detail on this ban here). However, the Court can take months or years to deliver a judgment.

The central constitutional provision is article 149, which provides that the State has exclusive jurisdiction over conditions governing ‘the equality of all Spanish in exercising their constitutional rights.’ This is advanced as the basis for the following three grounds of appeal:

1. Cultural: In their claim, PP argue that ‘the cultural, historical and traditional bullfighting heritage is an essential part of the historical, artistic, cultural and ethnographic culture in Spain.’ They cite freedom of artistic ‘creation’ (article 20),  the right to education (article 27), and government obligations under article 44: ‘The public authorities shall promote and watch over access to culture, to which all have a right’ and article 46: ‘The public authorities shall guarantee the preservation, and promote the enrichment, of the historical, cultural, and artistic heritage of the peoples of Spain and the property that makes them up, regardless of their legal status and their ownership.
2. Economic: Citing violation of freedom of enterprise (article 38) and constitutional obligations upon the state to drive public economic and social progress (article 40(1)). In rather a twist of article 128(1), which appears to allow for nationalisation of property ‘regardless of ownership’, it is claimed that the country’s wealth is subject to the general interest.
3. Ultra vires: Possibly the strongest ground, the PP ultimately claim that the law goes beyond the powers of the Catalan state. The federal government has devolved to autonomous regions the capacity to regulate, organize and promote bullfighting but “in no case” has specific provision been made for a ban on bullfighting, which is protected by the national and European laws.

Grounds one and two are very similar to the grounds argued in legal challenges to the Hunting Act 2004 (UK) which banned fox hunting and hare coursing with hounds. In the 2007 House of Lords judgment, Countryside Alliance v A-G [2007] UKHL 52, the Lords heard an appeal by two groups of claimants. The first group contended that the Act infringed their human rights under articles 8 (‘Everyone has the right to respect for his private and   family life, his home and his correspondence …’), 11 (‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others … ‘) and 14 (prohibiting discrimination on the basis of ‘sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’) of the European Convention on Human Rights and article 1 (‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions …’) of the First Protocol to the European Convention, all of them provisions to which domestic courts are required to give effect by the Human Rights Act 1998. The second group argued that the Act is inconsistent with articles 28 (‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.’) and 49 (‘[R]estrictions on freedom to provide services within the Community shall be prohibited …’) of the European Community Treaty, and is accordingly invalid.

Both lines of argument were rejected by the Lords on the grounds that the rights were not infringed or, if they were, that the operation of the Act was an acceptable limitation on those rights.

If I were to highlight one distinction between the broader social significance of fox hunting and bullfighting bans, however, it is the element of cultural significance. In Spain, bullfighting is emblematic of the dominant Iberian ‘national’ culture. Indeed, Catalonia’s ban was in no small part a symbolic declaration of independence, affirming the cultural autonomy that many Catalans felt had been diminished by a Constitutional Court decision limiting the autonomy of the Catalan state, handed down shortly before the vote. Class also plays a part, unlike fox hunting – a rather patrician pursuit – bullfighting does not have the same class resonance and is considered a fitting pastime for aristocrats and workers alike.

Other bull spectacles like correbou, where people chase bulls through the streets and bouembolat, where bulls are forced to run around with flaming wax balls affixed to their horns, are still legal in Catalonia.

Meanwhile in France, the abandonment of bullfighting in Fréjus (which is situated in the Côte d’Azur, in the south-east of France) means that bullfighting is now almost entirely concentrated in the south-west of the country. The local ban was precipitated by a petition against bullfighting signed by 15 000 inhabitants of Fréjus.

As in Catalonia, it was the concerted effort of civil society animal rights/welfare groups that put the ban on the political agenda. A group called Prou! (Enough!) gathered an incredible 180 000 signatures to prompt the Catalonian legislature to draft a ban on bullfighting.

As just one other example of a ‘bloodsport’ seeking legal justification on cultural grounds, cockfighting is protected in many countries as a cultural patrimony. In the Philippines, where it is known as Sabong and is a televised sport with the World Slasher Cup a highly profitable franchise, cockfighting takes a particularly brutal form in which with razor sharp blades (called ‘gaffs’) are fitted  to the backs of the cocks’ legs. This is the model for illegal fights in the US and elsewhere.

All US states have outlawed cockfighting. It is a misdemeanor offence with maximum sentences of a fine of $2,000 and 1 year of prison. But Hawaii’s House Tourism, Culture and International Affairs Committee passed a resolution to protect cockfighting in May this year on a 4-2 vote, sending it to the House Judiciary Committee. The resolution doesn’t have the force of law and wouldn’t legalise cockfighting but if it were approved and made law could become a decriminalisation measure recognising cockfighting’s long history in Hawaii and particularly among Hawaiian Filipino for whom it has cultural significance.

Provisos against gambling or the use of gaffs were included by the committee. It was argued in support of the proposition that cockfighting is widespread on the islands and legitimising the sport could boost the local economy. It is unclear how this claim balances with the proviso against gambling. Are we to believe that such operations would subsist on ticket sales alone when wagering on the fights is as old and entrenched a tradition as the cultural ‘right’ they purport to defend?

UPDATE: In a truly bizarre incident, a Californian man was killed after being stabbed by a rooster’s gaff while attending a cockfight on 30 January 2011.