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NhRP Commends Dissenting Opinion in Colombian Nonhuman Rights Case

By Nonhuman Rights

“We welcome and commend Judge Rivera’s dissenting opinion, for it illustrates the progress that is being made around the world on behalf of demands that at least some nonhuman animals should have certain legal rights. Her opinion also reinforces the global importance of Happy’s case, which we and many others in New York, the US, and worldwide hope the Court of Appeals will soon agree to hear.” — NhRP President Steven M. Wise

The Nonhuman Rights Project (NhRP) has sent a letter to the New York Court of Appeals to bring to its attention a decision recently published by the Constitutional Court of Colombia in Chucho the spectacled bear’s nonhuman rights case.

By a 7-2 vote, the decision denied legal personhood and habeas corpus relief to Chucho, whose release (to either the Río Blanco Nature Reserve or La Planada Nature Reserve) Chucho’s attorney, Luis Domingo Gómez Maldonado, has sought since Chucho was transferred from Rio Blanco to the Barranquilla City Zoo in 2017.

However, it includes a lengthy and powerful dissenting opinion, authored by Judge Diana Fajardo Rivera, that repeatedly and favorably cites to the NhRP’s US litigation, including Happy’s elephant rights case and a favorable 2018 opinion issued in our chimpanzee rights cases by New York Court of Appeals Judge Eugene M. Fahey.

The NhRP discusses Chucho’s case in our recently filed appeal on behalf of Happy, which argues that the legal issues raised by Happy’s case are novel and deeply important at the local, state, national, and international levels and thus require a hearing before the Court of Appeals, which is New York’s highest court.

Judge Rivera’s dissent also discusses at length the historic 1772 Somerset v. Stewart decision in which Lord Mansfield, Chief Justice of the Court of Kings Bench, granted the writ of habeas corpus to James Somerset, an enslaved human being, and transformed him from a legal thing with no rights into a legal person with fundamental rights. The NhRP was founded upon and has long based many of its legal arguments on the Somerset case—the most important and well-known habeas corpus case in history and the subject of Steve’s 2005 book, Though the Heavens May Fall: The Landmark Trial That Led to the End of Human Slavery, which Judge Rivera also cites.

In August of 2019, at the invitation of the Constitutional Court of Colombia, Steve addressed the panel of nine judges by video during its hearing to determine whether Chucho is a legal person with the fundamental right to liberty protected by the writ of habeas corpus.

In 2017, Chucho’s attorney filed a habeas corpus petition on Chucho’s behalf after learning that the Corporación Autónoma Regional de Caldas (Corpocaldas) had used its authority as the entity responsible for environmental management in the region to transfer him from the Río Blanco Nature Reserve to the Barranquilla City Zoo. In so doing, Luis argued, Corpocaldas had deprived Chucho of his right to liberty, severely compromising his physical and emotional well-being.

In a first for Colombian animal law jurisprudence, on July 26, 2017, Colombian Supreme Court Judge Luis Armando Tolosa Villabona granted the writ of habeas corpus to Chucho and stated that “(s)ince nonhuman animals are sentient beings capable of suffering, they must be holders of rights, and the law protects them. Therefore, nonhuman animals are entitled to freedom, to live a natural life, to prosper with the least possible pain and to lead a life with the standards that suit their status and condition, but essentially in a responsibly preserved habitat in the biotic chain.”

Upon further appeal the Colombian Constitutional Court ordered a hearing.

As Steve said in his video argument to that Court, the question before the Court is “whether even the most fundamental interests of a species, like Chucho’s, should ever, under any circumstances, count. If it is possible that under any circumstances their fundamental interests should count, then they should be designated as persons, for this then gives them the capacity for legal rights to protect their most fundamental interests.”

Despite seven of the nine judges having decided, for reasons with which the NhRP disagrees, to deny legal personhood and habeas corpus relief to Chucho, the fact that the Constitutional Court issued a 143-page decision—in contrast to the single paragraph issued by New York’s First Department appellate court in Happy’s case—is itself powerful evidence of the degree of thought each Court gave to these important and urgent legal issues.

Last week, a group of fifty animal law professors became the latest experts to urge the Court of Appeals to hear Happy’s case, which seeks Happy’s release from the Bronx Zoo to a sanctuary in recognition of her right to liberty. The NhRP awaits the Court’s decision.

The NhRP is arranging an English translation of the Chucho decision, including Judge Rivera’s dissent, which we’ll publish and share in the coming weeks.

To learn more about Happy and her court case, click here. For all the ways you can help #FreeHappy right now, click here.

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