Update at the end of this article.
A bear named Chucho has been granted a writ of habeas corpus in Colombia in a landmark case that is encouraging lawyers who are fighting for animal rights elsewhere.
“Personhood for nonhuman animals is an inevitability. It’s not just coming. It’s here,” said the president of the US-based Nonhuman Rights Project (NhRP), Steven Wise, who has been battling for the rights of nonhuman animals for decades.
The judgement in favour of Chucho, which was issued in Bogotá on July 26, follows a similar ruling in Argentina in the case of a chimpanzee, Cecilia, who spent years living in seclusion in a cage in Mendoza Zoo.
Judge María Alejandra Mauricio ruled in November last year that Cecilia was a nonhuman legal person who possessed the right to be free. The judge ordered Cecilia’s transfer to a sanctuary in Brazil, “where her fundamental legal rights can be respected”.
On April 5 this year, Cecilia arrived at the Sorocaba sanctuary run by the Great Ape Project Brazil (GAP Brazil).
“Soon Chucho will join Cecilia as one of the first two nonhuman animals to be freed from captivity using writs of habeas corpus,” Wise said. “They will not be the last.”
In Chucho’s case, Judge Luis Armando Tolosa Villabona, sitting in the Supreme Court, accepted the arguments put forward by Luis Domingo Maldonado, a law professor at Manuela Beltrán University, that Chucho, who is a spectacled bear¹, should have personhood rights and should be released from captivity.
Chucho lived for about 18 years at the Rio Blanco Nature Reserve in Manizales, Caldas. He was taken there from the La Planada de Nariño reserve in Ricaurte when he was still a cub, along with a female bear cub, Clarita.
According to media reports, when Clarita died of cervical cancer, Chucho became depressed and his health deteriorated. He also escaped from the reserve several times.
In July this year, Chucho was transferred to the Barranquilla Zoo, a move that Maldonado said worsened his condition.
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Maldonado’s first application for a writ of habeas corpus for Chucho was denied by judges in the civil chamber of the Superior Tribunal of Manizales. The judges said habeas corpus could only apply to human beings.
Maldonado challenged the ruling, saying that there was no proper mechanism that enabled the protection of nonhuman sentient beings in Colombia, and citing the precedent of the judgement in favour of Cecilia.
Judge Villabona overturned the decision taken in Manizales and ordered Chucho’s transfer, within a month, from the zoo to a more appropriate place where he could live in “dignified conditions” in semi-captivity. The judge said the Rio Blanco Nature Reserve should be the first-choice location. Maldonado had proposed a return to the La Planada de Nariño reserve. A final decision is yet to be announced.
The Supreme Court heard that the spectacled bear’s natural habitat is in the Andean mountains, where the temperature is about 18 degrees Celsius or less, and not on the Caribbean coast, where Barranquilla is located, and temperatures can rise above 30 degrees Celsius.
Steven Wise said: “We at the Nonhuman Rights Project congratulate Professor Maldonado on this well-deserved victory and commend Judge Luis Armando Tolosa Villabona for his decision, which will be life-changing for Chucho.”
Wise pointed to the rulings that have been made by judges in the habeas corpus cases he has brought on behalf of four captive chimpanzees: Tommy, Kiko, Hercules, and Leo.
He says the New York courts “have yet to engage in the mature weighing of public policy, moral principle, and justice needed to ascertain the rights of nonhuman animals, as the Cecilia court and now the Chucho court have done”.
However, Wise added, “in part because of victories like Cecilia’s and Chucho’s, we remain entirely confident this will eventually occur …”.
Spokeswoman for AnimaNaturalis International² Andrea Padilla Villarraga says that the granting of a writ of habeas corpus to Chucho adds to recent Colombian jurisprudence protecting animals’ interests and their well-being.
In a column written for El Espectador, she wrote: “Including this one, there are ten rulings by the Colombian Constitutional Court, the State Council and, now, the Supreme Court, regarding the constitutional protection due to non-human animals.
“These rulings deal with one of the most interesting debates in contemporary legal theory: the extent to which some nonhuman animals are subjects or holders of rights, and the basis for such a hypothetical entitlement.”
She added: “The main novelty of this verdict lies in the inclusion of habeas corpus as a valid legal mechanism to safeguard the rights of a nonhuman animal unlawfully held captive in Colombia.
“Until now, these mechanisms extended to class actions, petitions for compliance and, of course, criminal complaints in cases of animal abuse.”
Villarraga described legal decisions such as the one in Chucho’s case as “enthralling and promising” because, she says, “they reveal the beginnings of a process of legal change and doctrinal innovation in Latin America in favour of nonhuman animals”.
In Cecilia’s case, the judge’s ruling was made in response to a habeas corpus application filed by the Argentine Association of Officials and Lawyers for Animal Rights (AFADA) with the Third Court of Guarantees in Mendoza.
The AFADA’s litigation was modelled on the NhRP’s habeas corpus petitions in the United States.
The president of the AFADA, Pablo Buompadre, said Cecilia had been living in “deplorable conditions” in a small and often dirty cage, which became extremely hot in summer and very cold in winter. The chimpanzee received very little sunlight.
The court heard that Cecilia had no blankets or hay on which to lie and had no
shelter from inclement weather or even from the wind, “or from the noise and screams of the constant school visits and the general public”.
The AFADA lawyers argued that Cecilia’s confinement without companionship was unlawful and had a detrimental impact on her health.
Buompadre said that Cecilia had been “illegally and arbitrarily deprived from her freedom of movement and a decent life” by the zoo authorities.
In response to Judge Mauricio’s judgement, he said: “The habeas corpus recognition means that animals are not things anymore, and their rights are recognised. We think that legal recognition is a very important step to assist in the release of other animals, beginning with Cecilia, whose species is the most similar to humans.”
Judge Mauricio said: “Cecilia’s present situation moves us. If we take care of her well-being, it is not Cecilia who will owe us; it is us who will have to thank her for giving us the opportunity to grow as a group and to feel a little more human.”
The judge said it was undeniable that great apes were sentient beings and therefore had nonhuman rights.
“A chimpanzee is not a thing; he is not an object that can disposed of like a car or a building.”
Chimpanzees, the court heard, reach the intellectual capacity of a four-year-old child.
“They organise in social groups, are gregarious animals that live in big family groups with a determined hierarchy, and they also possess self-consciousness,” Judge Mauricio noted in her ruling. “They have specific abilities like being able to recognise themselves … and they even have a ‘culture’ concept with education that is passed from parents to children.”
The judge said Cecilia was being transferred to a sanctuary in another country because it had been proven that the community in Argentina could not provide the chimpanzee with the well-being that the plaintiffs and the government of the province of Mendoza intended to protect.
GAP Brazil reported that Cecilia was doing very well, but told the NhRP that the sanctuary team had to be very attentive and patient because the primate had lived all her life in a concrete cage, “and the reality she experienced was very limited”.
The sanctuary team was having to teach Cecilia everything, even how to eat bananas, GAP Brazil said. At the zoo, she was given cold-area fruits from Mendoza, such as grapes and citrus fruits.
“She is also afraid of the noise of motors of tractors and of being taken back to her old enclosure.
“She is enjoying stepping on the grass, the larger area to walk and run in, and the companionship of her chimpanzee neighbours.”
GAP Brazil also stated: “As long as we treat nonhuman animals as merely things in terms of law, little will be possible to be done to change their status and the many exploitative situations to which humans subject them.
“That’s why the Cecilia case is so important: the only way to make her free of the suffering caused by captivity in the zoo was using the writ of habeas corpus.”
Steven Wise said that Judge Mauricio’s thorough examination of the bases for recognition of great apes’ personhood and rights in Argentina was “a continuation of an ongoing paradigm shift in how other species are viewed and treated under the law”.
New York appeal
The NhRP recently released an annotated version of the most recent judgement in the case of Tommy and Kiko, which Wise says is legally wrong.
In an appeal hearing in March this year, the NhRP argued that chimpanzees should be recognised as legal persons who have the right to habeas corpus.
Wise and his team appealed against a lower court’s denial of petitions for writs of habeas corpus for the two chimps.
They made their case before a panel of five judges in the New York County Supreme Court (Appellate Division, First Judicial Department), who denied habeas corpus for the chimps.
Caged and ill-treated
Wise discovered Tommy in Gloversville, New York State, in 2013. The chimpanzee was in a cage in a warehouse on a used trailer lot.
Tommy was in a dark room that had a bank of cages, all of which were empty except his, Wise says.
“There was a small portable television set about ten feet away from him that was tuned to Sesame Street.”
Tommy was raised from infancy by Dave Sabo, the former proprietor of “Sabo’s Chimps”. He appeared as “Goliath” in the 1987 film Project X.
Animal activist and TV icon Bob Barker and others alleged that trainers beat the chimpanzees used in the film with clubs. After Sabo died in 2008, “ownership” of at least some of the chimpanzees passed to Patrick and Diane Lavery in Gloversville.
The NhRP says that Kiko, who is thought to be in his early thirties, was originally “owned” by an exotic animal collector and trainer named Roger Figg. He is now believed to be in captivity in a cage in a cement storefront attached to the home of Carmen and Christie Presti in a residential area in Niagara Falls, New York.
Kiko suffers partial deafness as a result of physical abuse he suffered on the set of a made-for-TV Tarzan movie. He has an inner ear condition that requires him to take anti-motion sickness medication, especially during changes in barometric pressure.
Legal battles continue
In the case of Hercules and Leo, the New York County Supreme Court Justice Barbara Jaffe made a ruling in July last year in which she rejected the NhRP’s petition for a writ of habeas corpus.
The NhRP is still working to free the two chimpanzees from the New Iberia Research Center, where they have been held in captivity since Stony Brook University decided to no longer use them in research.
In the case of Tommy and Kiko, the NhRP lawyers will be seeking leave to appeal to New York’s highest court, the Court of Appeals.
In their ruling about Tommy and Kiko in June, the First Judicial Department judges wrote: “The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions.”
They said that nonhumans “lack sufficient responsibility to have any legal standing”.
Wise says the lawyers for Tommy and Kiko found dozens of legal errors in the decision, including the court’s claim that the NhRP “does not challenge the legality of the chimpanzees’ detention”.
The NhRP’s entire case was a challenge to the legality of the chimpanzees’ detention, he says.
The First Department also appears to have failed to understand that the NhRP brought its habeas petitions solely under New York’s common law, which does not rely on precedent, “but on evolving standards of morality, scientific discovery, and human experience”, Wise adds
The case, he says, was not brought under the New York constitution or the United States constitution, as the court asserted.
Wise said that requiring the ability to bear duties and responsibilities as a precondition for personhood would deprive millions of people in New York the ability to go into court under habeas corpus.
He cited the case of infants, children, and incapacitated and elderly people who could not realistically fulfil that requirement.
For the March hearing, the NhRP lawyers submitted 160 pages of affidavits, including one on behalf of each chimpanzee from the renowned primatologist Jane Goodall.
Goodall states in her affidavits that chimps do bear duties and responsibilities, particularly in regard to family life.
In the case of Cecilia, the judge noted that chimpanzees had the capacity to reason. They were intelligent, had culture diversity, engaged in mental games, and manifested grief. They used and constructed tools to access food or to solve the simple problems of daily life, expressed emotions such as happiness and frustration, and manifested desire and deceit.
“They have metacognitive abilities; they have a moral, psychic, and physical status; they have their own culture; they have affectionate feelings (they caress and groom each other); they are capable of lying and they have symbols for human language.”
Wise points out that there are many entities that are not human, and not even alive, but are considered to be legal persons. They include corporations, ships, and partnerships.
Andrea Padilla Villarraga quotes Judge Villabona, who said: “If legal fictitious entities are subjects of rights, what reason is there for denying that beings that are alive and capable of sentience might also hold rights?”
The idea that some animals are to be understood as bearers of rights is, Villarraga says, beginning to consolidate.
- Also known as an Andean bear or Andean short-faced bear. The spectacled bear is South America’s only bear species. It faces an uncertain future because of loss of habitat.
- AnimaNaturalis is a non-profit organisation whose mission is to “establish, promote, and protect the rights of all animals in Spain and Latin America”.
Judges in the Labour Cassation Chamber of the Colombian Supreme Court have ruled against the writ of habeas corpus granted to Chucho.
Part of the rationale presented by the court is that “the writ of habeas corpus is inappropriate in the present case, because it was designed for persons, rational animals, not for nonhuman or irrational animals”.
The judges said that the foundations of the decision to grant a writ of habeas corpus to Chucho “are incompatible with the purpose for which the writ was created”.
The file has reportedly been sent to the Constitutional Court for possible revision, but, for now, Chucho remains in the Barranquilla Zoo.
Categories: Wildlife and animal rights