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By Sakshi Pawar (Co-founder and Managing Editor at KhelAdhikar)
“The time will come when men such as I, will look upon the murder of animals as they now look upon the murder of men.” – Leonardo Da Vinci
Last week, KhelAdhikar explained why despite several state enactments, bull racing events were unconstitutional and illegal in India. This article (Part II of the series discussing a ban on all animal sports) touches upon bull racing/bullfighting events that occur all around the world, especially in Spain and Brazil.
The reasons for choosing Spain and Brazil as comparative case studies is that both situations involve a conflict between culture and prevention of animal cruelty as well as the question of state autonomy clashing with the central legislature. These aspects are similar to the questions of legality raised regarding bull racing in India (AWBI v. A Nagaraja case).
“Until we have the courage to recognize cruelty for what it is — whether its victim is human or animal — we cannot expect things to be much better in this world. We cannot have peace among men whose hearts delight in killing any living creature. By every act that glorifies or even tolerates such moronic delight in killing, we set back the progress of humanity.” – Rachel Carson
History: Bullfighting began as a method to sacrifice the bull to the gods and can be traced back to the 8th century A.D. where the first official bullfight, or “corrida de toros,” was held in honor of the coronation of King Alfonso VIII. Additionally, Spain was once part of the Roman empire and therefore there is a strong gladiator like influence in the game. Later, Felipe V had attempted to end this trend because he believed it was in poor taste for nobles to practice such a bloody sport. This was when bullfighting was performed on horseback. Commoners, however, continued to indulge in the game on foot with smaller weapons. This art of being quick-footed and stabbing and dodging the bull became prominent in the early 18th century and is now followed by a rigid ritualistic code of conduct. The oldest bullring in Spain is in the southern town of Ronda. Cities such as Madrid, Seville and Pamplona also have a rich bullfighting legacy with some of the largest rings in the world.
Gameplay and cruelty to animals: Bullfighting takes place in three stages. The first is called the Tercio de Varas where two picadors on horses (padded and blindfolded horses) enter the arena and poke the bull with lances (varas) to cause blood loss in the neck. The protection to the horses (although they still get hurt) was only offered recently. Till the 1930s they were killed in the game. Nowadays, there have been reports of intentionally blinding the horses to prevent them from panicking and cutting their vocal chords to not distract the audience with their noises. The second stage Tercio de Banderillas involves the matador placing two banderillas (small swords) into the bull’s shoulders, weakening it. In the third and final stage (Tercio de Muerte) there is an ‘estocada’, a final stab with the sword which kills the bull. The whole process is a confusing and a painful session of 30 minutes or so for the animal who dies in pain. Although it is claimed that the estocada is meant to be swift, otherwise the matador is not praised, it does not make the game any less painful for the animal. Additionally, like in bull racing events in India, there are several reports of the animal being mistreated prior to the event itself.
Summary of the legal position: Catalonia had banned “bullfights and bull-shows” specifically in 28th July 2010 (came into full force in 2012) through Article 1 of Law 28/2010. This Article 1 amended Article 6 of the Animal Protection Act, Law 3/1988.
Initially, it read as:
“a) Bullfighting in places where, on the effective date of Law 3/1988, of March 4th, regarding animal welfare, there are bullrings built to perform it, to which access must be prohibited to persons under fourteen years of age.”
After 2010 it changed to:
“f. Bullfights and bull shows that include the death of the animal and the application of the lance, the banderillas and the sword, as well as any bull shows of any type that are performed in bullrings or out of them, with the exception of celebrations with bulls that are referred to in section b) of the second paragraph of article 6.”
Following this, two laws were passed, one on November 12, 2013, by the Spanish Congress of Deputies which declared bullfighting as cultural heritage (Article 2 of State Law 18/2013). This stated that bullfighting was to be protected as a cultural heritage “throughout the national territory” in accordance with applicable legislation and international treaties. The other law was passed on 26 May 2015, State Law 10/2015 which stipulated the safeguarding of intangible cultural heritage. This law was opposed by scholars as they believed the system of the 2013 and 2015 law violated a fundamental tenet of the UNESCO Convention on Safeguarding of the Intangible Cultural Property. This tenet states that the State cannot oblige someone to preserve a cultural expression they do not want to preserve. This violation had occurred because the State had created a list of cultural heritage without consulting the Autonomous Communities, thereby forcing them to accept bullfighting as a culture even though they do not connect with it.
Moreover, in October 2015, the European Union realised that agricultural subsidies were being used to rear the Spanish bullfighting bulls and voted to prevent the same.
As soon as the 2010 ban was implemented the right-wing People’s Party in Madrid went to the Spanish Constitutional Court on 28th October 2010 to declare this ban as unconstitutional. The then Prime Minister of Spain, Mariano Rajoy supported bullfighting as part of the Spanish “intangible cultural heritage” and is a member of the same People’s Party. Strangely, it took 6 years for this ban to be overturned by the Constitutional Court who finally struck down Article 1 of the Catalan Law as unconstitutional on 20th October 2016. Following this ban, the State of Spain (distinct from the Autonomous Community of Catalonia) has enacted a legislature which upholds bullfighting as a national cultural heritage and even ensures that these events are provided certain tax breaks. Regardless of the central law and the Constitutional Court’s decision, Catalonia has upheld the ban and declared that since the people themselves don’t want the sport (the legislature of 2010 was actually initiated with a petition signed by 1,80,000 people) the ban will de facto continue to exist in the state.
In February 2018, the Members of the UN Committee for the Rights of the Child raised concerns about the “level of violence” at Spain’s 55 bullfighting schools, recommending that the government set a minimum age of 18 for such training and also for the spectators of such events. This has not yet been followed in Spain, even though the Spanish delegation stated that it would consider the proposal.
Political factors: Catalonia is undergoing a secessionist revolution (was present in 2010 when the ban was enacted). It is believed that this separation from Spanish cultural heritage is an attempt by Catalonia to separate itself from the rest of Spain, and the Constitutional Court judgement seeks to prevent that. Moreover, the Balearic Islands and the Canary Islands had previously declared bullfighting as illegal within their territory and the matter was not debated before the Constitutional Court. However, the argument has also been made that the Catalan law of 28/2010 had not struck down all bullfighting or all bull racing events and had restricted the Act to banning “bull shows”. It had exempted corrobeus, an equally harmful sport to the bull from being banned. Corrobeus is a very popular and cultural sport in Catalonia where the horns of the bull are set ablaze and it is made to run through the streets. Recently, in a similar situation, a bull caught on fire and it crashed into a nearby pole, dying instantly. This shows how dangerous and painful this sport can also be to the animals. On the other hand, the Balaeric and Canary Islands had banned such events much before and there seemed to be no arbitrary differentiation or underlying motive to the same. That is why there was no motion made by the central government to revoke their legislation. However, as per the present judgement, the bans on all of these States would stand revoked.
Analysis of the 2016 judgment: The 2016 judgment relies on three facets of constitutionality. First, that the autonomous community of Barcelona had exceeded its mandate in banning bullfighting. Second, that it violated the fundamental rights of the people to their artistic creation, culture and profession. Third, that the ban was arbitrary and not enacted for the love of animals but to only ban the cultural heritage of bullfighting. In the first situation, the court had to decide on the Autonomous communities’ powers to regulate animal protection (Art. 116.1.d of Statute of Autonomy of Catalonia) and public spectacles (Art. 141.3) could completely prohibit bullfighting. The Court decided that the powers of the Autonomous Community should be in line with the powers of the State to protect cultural heritage (Art. 149.1.28 and 149.1.29 of the Constitution). According to the Court, the power had been provided to the State to ensure uniformity in the implementation of laws regarding the protection of the cultural heritage throughout the territory of Spain. (This is following the 2013 and 2015 legislations which did not factor in the decision of the Autonomous Communities while compiling this list.)
The constitutional freedoms cited were the freedom of artistic ‘creation’ (Art. 20), the right to education (Art. 27), and government obligations under Art.44: ‘The public authorities shall promote and watch over access to culture, to which all have a right’ and Art.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.’ Freedom of enterprise (Art. 38) and constitutional obligations upon the state to drive public economic and social progress (Art. 40(1)) were also cited under the more economic rather than culturally based arguments.
Lastly, the Court also noticed that the ban only exempted “bull shows” implying that the other bull events would be legalised. Since this was arbitrary the ban was unconstitutional.
The judgement also ensured that Catalonia would not follow a “false path” by enacting legislation which would seemingly allow bullfighting but actually attempt to prevent it.
Developments: Interestingly, the Balearic islands had to modify their ban by enacting a legislation which only seemingly allows bullfighting, but in actuality continues to prohibit it. This includes preventing the killing of the bull entirely and banning the harming of the animal in any way, even by using the traditional harpoons (banderillas) and lances (pica). It also reduces the time in the arena from 20-30 minutes to 10 minutes. It would be difficult to kill the bull and engage the audience at the same time. Therefore, bullfighting would become profitless. Moreover, the law has also included that children below the age of 18 cannot be allowed to attend the events and has effectively pre-empted a consideration by the United Nations. The Balearic islands law is akin to the ‘false path’ that Catalonia was prevented from treading by the Constitutional Court. The legality of this law is now under question before the same Court.
“He who is cruel to animals becomes hard also in his dealings with men. We can judge the heart of a man by his treatment of animals.” ― Immanuel Kant
Vaquejada is the most popular bullfighting sport in Brazil which is centred in the Nordeste region. It involves two riders on horseback who pin the bull between them by holding its tail. They are then supposed to ride till the finish line and topple over the bull by the tail itself. The concept had originated since the 17th century when people were employed to ride on horseback to round up the cattle and they had to deal with especially difficult bulls by toppling them by the tail or directing them by the tail. Eventually, it became a sport and the first ever competition with its rules was conducted in 1870. The city with the largest Vaquejada in the world can now be found in Serrinha in the Bahia State.
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Luckily, this sport doesn’t involve the killing of the bull and is safer, however, it is still quite painful for the bull. This is because the bull is made to go through three-four rounds of the same race. Additionally, the bull is mistreated before the event and displacement of tailbones can be extremely painful for the animal.
In 2016, the Government of Cearra enacted a law which declared Vaquejada as the cultural heritage of that region. The General Attorney contested this law in front of the Brazilian Supreme Court. According to the Attorney, the law was against Article 225 of the Brazilian Constitution which prevents cruelty to fauna. The counsel of behalf of Cearra argued that the Constitution also stipulated the duty to protect cultural heritage (Art. 215 (1)) and to protect the economy generated from tourism. The Vaquejada was an essential part of the rural economy and employed 200 thousand people in a year. Much like the Indian Supreme Court, the Brazilian Supreme Court on October 6, 2016 (6:5 ratio) held that culture could not lead to the denigration of animal rights and therefore banned Vaquejada. Brazil has been more progressive in protecting animal rights and had also criminalised cockfights in 1988. Additionally, it had also prohibited Farras de Boi in 1997, another cultural event which involved the mob slaughter of bulls.
The reaction of the government was to approach the Federal Congress and the Federal Senate which were the only institutions that could override the SC’s decision. They passed the Projeto de La Camara Bill which made Vaquejada a cultural heritage of the country. Additionally, they are now seeking to pass a proposed amendment to the Constitution “PEC of Vaquejada” which would rewrite Art. 225 and exempt animal sports from the scope of this article.
While this brings us to the end of the segment on bullfighting, it leaves us with two definitive questions: First, whether culture should be allowed to subvert animal rights? Second, whether any country can impose its idea of culture upon its separate constituencies. The answer to both questions is in the negative. India’s culture and tradition have included practices such as Sati which deny human rights. Therefore, in the name of culture, torture and suffering cannot be allowed. With respect to the second question, culture is linked to the emotional connection that people have with their own history. This emotional connection exists by self and no constitution can deny them of it nor can it force it on them.
In Spain, the question was not one of animal rights, but that of a clash between the State of Spain and the Autonomous communities, where the Centre believes that autonomous state laws banning bullfighting conflict with the Centre’s ability to protect cultural heritage. This is regardless of the fact that the Autonomous communities were not consulted while deciding what would constitute cultural heritage for the country. Bullfighting is dwindling as a sport in Spain, however, the government and constitutional court still wish to keep it alive, essentially -forcing the culture on a considerable portion of the population. On the other hand, the situation in Brazil is akin to that of India, where the population and the government insist on keeping the sport alive, even though it violates the constitution of the country. Like India, the Brazil Supreme Court acknowledged that culture cannot be a harmful one and if it is, it would be banned as unconstitutional.
One such method by which bullfighting may be continued in a more ethical fashion is to have it as a bloodless sport. This would imply that in the end the bull would not be killed. However, it is important to note that all of these events feature pitting man against a much stronger animal. The only possibility of having the man win the game, which is its essence of enjoyment, is to let him use painful weapons to weaken the bull. Therefore, the violation of animal rights still persists. Portugal, France, Texas and California are examples of places where such bloodless bullfighting takes place.
There is a definitive method to prevent such animal sports being continued under the garb of cultural heritage. This is to pass a resolution under the aegis of the 2003 UNESCO Convention on the Safeguarding of Intangible Cultural Property which would condemn bloodsports or sports which allow animal cruelty from being listed as cultural heritage. This would also prevent other forms of animal sports such as cockfighting which has been legalised in Canary Islands and Andalusia as part of their cultural heritage. The inability of these countries to grant such events a protected status may not deter them from actually taking place, but it would at least lead to a society where the interest they garner would hopefully fade out.
While Part I and Part II have only discussed animal sports tied to the concept of cultural heritage, Part III will discuss sports such as the US greyhound races, dog fighting and cock-fighting events which have no ties to culture but are legalised for entertainment or gambling. So stay tuned for next weeks article!