Why is judicial activism so dangerous? Because it aggrandizes judges at the expense of the laws they should protect. In the end, however, citizens will simply stop taking laws and judges seriously.
The newest case of spectacular misuse of judicial powers comes from Argentina, where following an application filed by an “animal rights” group, a panel of three judges has decided that Sandra, a female orang-utan, must be released from captivity. The application was based on a “habeas corpus” act, which normally is used by human prisoners to ask the judiciary whether the grounds for their imprisonment are still existent, and – more generally – whether their incarceration is not in contradiction with human rights. That act is thus a human rights law.
The Court court unanimously agreed, “starting from a dynamic and non-static legal interpretation, to acknowledge that the animal is an individual with rights, and therefore non-human individuals (animals) are possessors of rights, such that they are protected according to the appropriate measures”.
Dynamic and non-static legal interpretation? This somehow reminds of the European Human Rights Court’s notorious “living instrument” doctrine”. Apparently, this is the first case world-wide (at least since the days of Roman emperor Caligula, who elevated his favourite horse to the rank of a Senator) in which the Court has legally recognized an animal as a “rights bearer” and, indeed, as bearer of (limited) “human rights”.
One is tempted to wonder what the further consequences of this judgment might be. If “habeas corpus” applies to animals, then probably no animal should be held in captivity unless proven guilty of a crime. (Not to mention the practice of lawless killing, otherwise known as hunt…) But maybe the “limit” in the limited human rights” concept is that animals can be held captives for twenty years instead one day before they must be given due process?
In any case, the immediate consequence is that the three judges get world-wide media attention (including from this blog) for one day or two – and that is probably all they wanted. Turning human rights law into a laughing stock is in their view apparently not too high a price for this short-lived publicity.