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Owais Awan on the Legal Fight for Kaavan’s Freedom

By Nonhuman Rights

In May, we commended a decision by the Islamabad High Court in Pakistan that “without any hesitation” affirmed the rights of nonhuman animals and ordered the release to sanctuary of an Asian elephant named Kaavan, held in solitary confinement at the Islamabad Zoo.

Chief Justice Athar Minhallah’s decision, which relied in part on key decisions in the NhRP’s nonhuman rights cases, came about as a result of litigation brought by Owais Awan, a young attorney Free the Wild hired last year to fight in court for Kaavan.

The same day the decision was issued, we were able to connect with Owais to offer our congratulations; we were honored to learn his efforts were in part inspired by our work, since a big part of what we seek to do is further a worldwide movement for nonhuman rights.

Recently Kaavan’s advocates, who in 2018 “rumbled for rights” for elephants with the NhRP after we filed the world’s first elephant rights lawsuit on behalf of Beulah, Karen, and Minnie, announced that Justice Minhallah had approved the Islamabad Wildlife Management Board’s carefully considered recommendation to release Kaavan to Lek Chailert’s 25,000-acre Cambodia Wildlife Sanctuary (read more about the court order, including its citation to Harvard Law Professor Laurence Tribe’s amicus brief in support of Happy’s case, here).

To celebrate Kaavan’s release to a sanctuary and this historic decision, we invited Owais to write a guest blog post about the litigation. We were delighted he said yes. See below for his account of the legal fight for Kaavan’s freedom:

By Owais Awan

In a first, the Islamabad High Court in Pakistan through its decision in Islamabad Wildlife Management Board (IWMB) v. Metropolitan Corporation Islamabad (MCI) through its Mayor & Others and connected petitions ­­­­­­­has recognized the personhood and rights of nonhuman animals within the constitutional framework despite the Constitution of Pakistan not expressly recognizing “animal sentience.”

The decision, issued by the Chief Justice of the Islamabad High Court, J. Athar Minallah, was based on eco-centric precedents regarding the interpretation of the constitutional “Right to Life” and the interdependency of nature and humankind along with reliance on Islamic jurisprudence and case law from other jurisdictions. Several declarations and directions were made to the government, such as the fact that the captive nonhuman animals in the Islamabad Zoo are being subjected to “unnecessary pain and suffering” and a direction to relocate Kaavan the elephant and other captive animals to sanctuaries. The Court also issued directions to devise a humane practice for stray dog population control and to release a “dancing bear” to a local sanctuary and recommended the inclusion of animal rights in the primary school curriculum of Islamic Studies.

The decision begins with an analogy between human lockdown during the Covid-19 pandemic and its effects on human mental health and the captivity of nonhuman animals in zoos and their psychological suffering.

The Margallah Hills, which overlook the Federal Capital of Pakistan, Islamabad, have been designated as a national park and sanctuary and are home to ancient Buddhist relics and sites, therapeutic hiking trails, and diverse fauna and wildlife, such as leopards, deer, monkeys, wild boars and grey goral. Situated on the foothills of the Margallah Hills is the main zoo of the city, which was initially established as a wildlife shelter in 1978 and was later converted into a zoo, or as criticized by the Court, “a mere menagerie.” The zoo suffers from chronic underfunding and is a damning place for its resident animals, whose physiological and psychological needs are nowhere close to being met there.

A tour of the zoo goes something like this: the first things one notices is the ticket voucher priced at a very low cost (less than half a dollar). The proceeds from the ticketing booth, numerous food stalls, and play areas do not go back to the zoo as these have been sub-contracted to third parties. The first enclosures upon entering are of the monkeys (despite the fact that monkeys are native species of Margallah Hills where they can frequently be sighted in public spots). The duck ponds are more than often filthy and polluted. There are two bears in concrete pits who have been separated from one another and the female bear was recently diagnosed with a tumor. Last year in 2019, after her deteriorating health came to the attention of social media, the Court ordered medical treatment for her. The pair of lions in the zoo are also separated within the same enclosure and the lioness has given stillbirths to cubs on more than one occasion.

The wolves are skinny and can often be seen running around in circles. The carnivores are fed only once during the daytime because there is no staff present in the zoo in the evenings. There are rat holes in the birds’ aviary and cages, and the one ill-fated steppe eagle who broke her wing during migration ended up in the cage at the zoo with her wing neglected, as a result of which she is still unable to fly, and there are common mynas in the same cage. Ostriches on display show stereotypical behavior like feather plucking, and there is no one to educate the visitors when the male ostrich is doing a mating dance. There is one baby marsh crocodile all by himself.

Finally comes Kaavan, the largest, most intelligent and sentient inmate, who is at the heart of the controversy over the plight of the animals imprisoned in the zoo. He was gifted by the Sri Lankan Government to Pakistan in 1985 when he was only a year old orphan. Kaavan had a partner named Saheli who was only 24 years old and whose passing in 2012 caused a protest against the zoo by the residents of Islamabad for the first time. Kaavan was found frequently swaying and head bobbing, was not well kept, and suffers from broken nails. Unsurprisingly, he has a negative relationship with his Mahout and has been only conditioned to eat food from the hands of zoo visitors by reaching his trunk to the fence while standing on the edge of the moat in his enclosure.

For all of the captive nonhuman animals, there is only one veterinary doctor and the zoo staff does not have relevant qualifications or experience. The worker unions are disgruntled with the transitions from one authority to another and there are dues pending to the feed contractor. There are no development funds for the zoo and the zoo’s design has remained the same since its inception. The High Court’s decision also mentions how “visitors tease the caged animals by throwing articles, pelting stones, poking at them or disturbing them with loud noise,” which “further exacerbates their pain and agony.” On the other hand, the sanitation directorate of the metropolitan corporation consists of a “dog shooting squad” for stray dog population control in Islamabad, which shoots healthy stray dogs in broad daylight in front of the public.

In 1979, the Islamabad Wildlife Management Ordinance was promulgated, which created a Wildlife Board as the custodian for the Hills and its management as well as policy decisions including the city zoos. However, it wasn’t until 2015 that the Board became functional for the first time and only through an order of the Islamabad High Court headed by J. Athar Minallah. As a result, the “Authority” for the Hills has been the former development authority and later, after the enactment of a local act in 2016, the Metropolitan Corporation. The environmental wings of previous authorities have mostly consist of horticulturalists and foresters; one of the main points of contention in this case was which authority is empowered under the law to run the management and affairs of the zoo.

Animal law jurisprudence in Pakistan has historically been scarce. Local jurisprudence stems from the case of Muhammad Arif v. S.H.O City Police, Depalpur and others [PLD 1994 Lahore 521] in which the Lahore High Court allowed the release of two persons in a habeas corpus petition along with their cattle who were treated as property. The most prominent and landmark case in this sphere is Ms. Shehla Zia and others v. WAPDA [PLD 1994 Supreme Court 693] which held that the word “life” in the Right to Life does not mean a vegetative state of being and that all facets of human existence, including the right to a healthy and clean environment, constitute a fundamental right under the Constitution. The Supreme Court of Pakistan also applied the ‘Precautionary Principle’ from the Rio Declaration which calls for “caution in advance” in innovations and development in order to protect the environment.

The Shehla Zia Case has been used to expand jurisprudence over the years but mostly in the realm of environmental law and climate change with a human-centric approach. In the case of Province of Sindh and others v. Lal Chandio Khan and others [PLD 2016 Supreme Court 48] the Supreme Court of Pakistan declared that the hunting of endangered Houbara Bustards is illegal, deriving the ethical tenants from the Shehla Zia Case and Islam, interpreting the Holy Book, Quran as an environmental treaty. Principles from Islamic jurisprudence were read according to secular principles as an extension to the meaning of Right to Life. However, this decision was later overruled by a larger bench of the Supreme Court on the sole ground that complete prohibition on hunting is not intended in the law.

Recently, in Ghulam Asghar Gadehi v. Senior Superintendent of Police Dadu & Others [PLD 2018 Karachi 169], it was held that festivals like bull-cart racing have an adverse effect on cultural and moral values, promoting violence and crime, especially among youngsters. It mentions how people convicted of violent crimes often have a childhood history of inflicting pain on animals. However, the Sindh High Court does not dwell on the rights of animals and neither expanded the notion of Right to Life.

The Islamabad High Court applied a holistic approach to the legal challenges and constitutional questions—in part as a result of complex administrative issues and in part because a Kaavan-specific decision would have been unfair to the rest of animals in captivity in the zoo. Interestingly, the Court, by recognizing nonhuman rights and citing the cases of the NhRP on behalf of Happy, Tommy, Kiko, Leo, and Hercules, has shown its openness to entertain habeas corpus for nonhuman animals in future petitions.

On the question of whether nonhuman animals have rights and their personhood, the Court cited several cases of different jurisdictions. Most prominent among these were Sandra the orangutan, Cecilia the chimpanzee, and Arturo, the world’s loneliest bear from Argentina, and the expansion of the expression “Right to Life” under the Indian Constitution in cases such as N. R Nair and others etc. v. Union of India and others [AIR 2000 Kerala 340] and Animal Welfare Board of India v. A. Nagaraja and others [(2014) 7 Supreme Court Cases 547] and regarding Sundar and Sonu, the elephants. The decision also placed reliance from Constitutional Court of South Africa in the case of National Society for the Prevention of Cruelty to Animals v. Minister of Justice and Constitutional Development and another [(2016) ZACC 46]. In many ways, the Court expressed solidarity with Happy, Arturo, and so many other captive nonhuman animals whose stories have created a ripple effect for the freedom of nonhuman animals throughout the world.

While it may appear to some to be judicial activism, the Court in fact has shown restraint in making policy decisions regarding the zoo. The government has been directed to redesign the zoo and to not add any new captive animals until the ethical treatment for captive animals can be ensured. Regarding Kaavan, the Court has ordered him to be released to a sanctuary within or outside the country. Even though elephants are symbolically part of the heritage and ethos of subcontinent and South Asia since Indus Valley Civilization (3300 BCE to 1300 BCE), Pakistan is the only country in the region where Asian elephants have become extinct and consequently, as a result, Asian elephants are not native animals under the law. An expert committee was formed after the decision, which has recommended to retire Kaavan to Cambodia Wildlife Sanctuary (CWS). Justice Minhallah has accepted this recommendation.

There is no doubt that the decision of Islamabad High Court is groundbreaking—changing the lives of animals like Kaavan, potentially setting a positive new precedent for future litigation, and creating a new wave of awareness of the needs and rights of nonhuman animals. However, legally speaking, the decision applies only to the city of Islamabad, and there is still a long way to go in the policy arena given how animal-related laws in Pakistan are decentralized and almost non-existent, with the current laws dating back to the colonial era being in a dire need of revision and amendments. To date, there is no regulatory body for animal welfare in the country. But, with the decision being a stepping stone, perhaps one can be cautiously optimistic with respect to the development of animal law in Pakistan.

Owais Awan is an Advocate of the High Court based in Islamabad, Pakistan. He tweets at @0waisawan.

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