New York judge draws parallel between New York’s caged ‘Happy’ and Islamabad’s free Kaavan

Islamabad: A judge of New York’s highest court has quoted the Islamabad High Court (IHC) Chief Justice Athar Minallah’s judgment in her dissenting note saying, Happy had the legal right of living in the wild and was protected under the law.

The judge was hearing a petition filed by the animal rights group Nonhuman Rights Project.

The petitioners were seeking liberty and legal rights of a female Asian elephant Happy in The Bronx Zoo but they lost their plea by 5-2 majority.

Justice Athar Minallah in his landmark judgment had held that Kaavan, a male Asian elephant who was chained in Islamabad’s Marghazar Zoo for decades, could no longer be kept in captivity and directed the Pakistan government (Ministry of Climate Change) to send the animal to a safe place, a sanctuary for the Asian animals in Cambodia.

The New York court’s decision was written by Chief Judge Janet DiFiore and held that while animals – particularly those as intelligent as elephants – deserve “proper care and compassion,” they were not human beings and therefore are completely outside the jurisdiction of human rights law.

Judges Michael Garcia, Madeline Singas, Anthony Cannataro and Shirley Troutman also concurred with DiFiore while Judge Rowan Wilson wrote a dissenting opinion, to which Judge Jenny Rivera partially concurred in a separate dissenting opinion.

Important questions raised in dissenting note

In the case of Happy, though the petitioners lost their case, Judge Jenny Rivera has raised some important questions such as the animal’s right to live in their particular environment, right to live in a herd and security of their habitat, etc.

Referring to Justice Athar Minallah’s judgment dated May 21, 2019, Jenny Rivera held “When the majority answers “No, animals cannot have rights,” I worry for that animal, but I worry even more greatly about how that answer denies and denigrates the human capacity for understanding, empathy and compassion.”

In her note of dissent, she quoted the following lines of Justice Minallah’s historic judgment, “An animal is undoubtedly a sentient being. It has emotions and can feel pain or joy. By nature, each species has its own natural habitat. They require distinct facilities and environments for their behavioral, social and physiological needs. This is how they have been created. To separate an elephant from the herd and keep it in isolation is not what has been contemplated by nature. Like humans, animals also have natural rights which ought to be recognized. It is a right of each animal, a living being, to live in an environment that meets the latter’s behavioral and physiological needs.”

Extremely sociable animals

Asian elephants as “extremely sociable, forming groups of six to seven related females that are led by the oldest female, the matriarch,” who “spend up to 19 hours a day feeding . . . while wandering around an area that can cover up to 125 square miles”

Happy, an Asian elephant has been held in captivity at the Bronx Zoo for decades. She is on display for the zoo visitors, who observe her from above while riding the zoo’s monorail. When they spot her, Happy likely, stands nearly still staring, swaying, slightly, lifting and lowering one foot.

The Zoo has called the ride ‘The Wild Asia Monorail’ and promises it will take the patrons “into the heart of the Asian wilderness.” Judge Rivera however calls this simply a fantasy.

Visitors will not observe Happy in anything remotely resembling her natural environment. She does not, as she would in the wild, roam free with other members of her herd—consisting of her mother, sisters, cousins, and potentially grandmothers—in Thailand where she was born. She cannot, as is the common practice for the herd from which she was taken when she was a baby calf—spend the vast majority of her waking hours traversing significant distances to exercise, forage, and socialize, wrote the judge in her dissenting note.