22 May 2020 by Samuel March
On 21st May 2020, Chief Justice Athar Minallah sitting in the High Court in Islamabad, Pakistan, issued a landmark 67-page judgment which found, inter alia, that the animals in Marghazar Zoo had legal rights, and should be moved to appropriate sanctuaries.
The case concerned the Marghazar Zoo of the Federal Territory of Islamabad (“the Zoo”). The Zoo housed and exhibited 878 non-human living creatures, including 89 of different 15 species, 769 birds of 38 species and 20 of three species. Notably, the zoo was home to “Kaavan”, the solitary elephant.
The Zoo was under the control of the respondent corporation, which had “neither the resources nor the capacity and will to safeguard the wellbeing and welfare of the captive animals” . A report submitted by the amicus appointed by this Court as well as the Board highlighted
“extremely disturbing conditions in which the non-human living beings have been kept in captivity and in complete disregard to their respective natural habitats. The animals, because of these conditions, are definitely suffering pain, distress and agony. The animals have been kept in small cages and enclosures without basic and necessary facilities required for the needs of this non-human living species. There can be no denial that these non-human living beings have been kept in conditions which cause distress and pain and thus amounts to cruel treatment.”
The judgment at  deals with the specific conditions endured by the animals with a four to five-page emphasis on Kaavan’s three decades of “unnecessary pain and suffering” [4(a)].
At  the Judge set out what he perceived to be seven issues before the court. The most pressing being whether the animals had independent rights, whether there was a duty on the part of humans, through the state, to protect, preserve and conserve them, or whether the cruel treatment of animals could amount to a breach of the right to life of the public at large.
Finding “without any hesitation” for the claimants, the Judge considered at  that the animals had legal rights. He held,
“After surveying the jurisprudence developed in various jurisdictions it has become obvious that there is consensus that an 'animal' is not merely a 'thing' or 'property'.”
This conclusion came after a wide-ranging exploration at  of the jurisprudence, both domestically and internationally, pertaining to the rights of animals and the duties of humans and states towards them.
The cases cited will be familiar to animal advocates around the world. These detail the varying successes and failures of animal advocates to raise the legal status of animals. Notable successes cited include,
Sandra the Orangutan, who was declared a ‘non-human person’ by a Criminal Appeals Court in Argentina;
Cecilia the Chimpanzee, who was declared a “non-human legal person” by Judge Maria Alejandra Mauricio of Tercer Juzgado de Garantias in Mandoza;
Sonu the Elephant, whose right to live in its natural habitat was recognised by the High Court of Chhattisgarh;
A case from The Kerala High Court, which recognised a “fundamental duty” to show compassion and “recognise and protect” the rights of animals; and
A case from The Indian Supreme Court, which held that “every species has an inherent right to live and shall be protected by law, subject to the exception provided out of necessity.”
The court also cited concessions, allowances and sympathetic obiter from judges in cases where rights or personhood were not directly recognised; noting, for instance the “regretful” tone of Judge Alison Tuitt’s judgment concerning the Bronx Zoo’s Happy the Elephant.
Having reviewed the jurisprudence, the Judge went on to consider the treatment of animals under various religions. The Judge cited several Quranic verses and Ahadith, and concluded at [6(c)] that
“It is inconceivable that, in a society where the majority follow the religion of Islam, that an animal could be harmed or treated in a cruel manner.”
The Judge also considered the relationship between the treatment of animals and the right to life of humans, noting the context and roots of the present pandemic, and concluding at [6(f)] that it was an obligation of the State and its authorities to “jealously guard against cruel and illegal treatment of animals”.
The various declarations and directions are then set out at , including at [8(iii)] that the Board would forthwith make arrangements, preferably in consultation with and the consent of the High Commissioner of Sri Lanka, to relocate Kaavan to a suitable sanctuary within thirty days, and per [8(iv)] all the remaining animals are to be relocated their respective sanctuaries within 60 days.
The ruling has naturally been celebrated by those who have campaigned for the release of Kaavan and the other animals. One of the claimant advocates has called the Judge “an absolute legend and a symbol of hope”. American singer Cher, who had campaigned ardently for the animals, tweeted that the judgment was “one of the greatest moments” of her life.
For the time being, there has been no indication to the author’s knowledge that the ruling is to be appealed. Nevertheless, it is worth noting that The Supreme Court of Pakistan has the power to decide appeals arising out of cases decided by the High Courts of Pakistan, including the High Court in Islamabad which decided this case.