Why captive elephants deserve their day in court

Last year, the Los Angeles Zoo closed its elephant exhibit. This decision generated calls by the public to send the zoo’s last two elephants, Billy and Tina, to a sanctuary where they could live the remainder of their lives in an environment as similar to the wild as possible.

The zoo had a different idea for the pair: an impending move to yet another zoo, in Tulsa, Okla. Protests, media coverage and legal battles ensued in favor of the elephants, who were ages 40 and 59 at the time.

A civil rights group rushed to file a habeas corpus petition in Los Angeles County Superior Court seeking the release of the elephants followed by their transfer to an appropriate sanctuary. But by the next morning, the L.A. Zoo announced that Billy and Tina had arrived in Tulsa. The court ruled that the legal filing wouldn’t have prevented the move anyway; the elephants weren’t eligible to be considered for release under a habeas petition because that remedy in California is only for humans.

Now the Supreme Court of Hawaii faces the same question about another pair of elephants and has the significant opportunity to answer it differently.

At the center of the Hawaii elephant case are two females: Mari, who is about 51 years old, and Vaigai, who is about 40. Both were born in the wild in India, both were seized from their herds as youths, and both were sent to Honolulu, Mari as a gift arranged through Prime Minister Indira Gandhi. They have now lived in the Honolulu Zoo for decades.

As the controversies in L.A. and Honolulu, and in similar situations around the world, abundantly show, there is a problem with elephants in zoos. Scientists, animal behaviorists and even some zoo directors are raising alarms and changing their practices regarding the captivity of elephants, backed by highly credible, substantial and mounting evidence. The bottom line in each case is that no zoo can give elephants the space, range, terrain and family life they need.

But the Honolulu Zoo administration’s approach to elephant captivity is the same as it was decades ago when Mari and Vaigai arrived on the island. Zoos need to change with new scientific evidence. Too many lives and indeed planetary health are dependent upon their policies and decisions. Yet so far, the Honolulu Zoo will not budge — and it isn’t clear why or on whose behalf they’re taking this stance. Even Detroit Zoo visitors praised the decision when the park transferred its elephants to a sanctuary in California in 2005.

The Supreme Court of Hawaii can resolve this problem. In the U.S., state courts interpreting and applying the common law — which is judge-made law — have the authority and indeed the responsibility to develop that law to adjust to new circumstances, including societal changes, evolving knowledge and the demands of justice. The Nonhuman Rights Project, the same civil rights organization that filed on behalf of Billy and Tina in L.A., has petitioned on behalf of Mari and Vaigai for a writ of habeas corpus, the ancient common law instrument by which a court asks one simple question of a confiner: By what right do you hold this being?

The court of appeals in Honolulu said it would not require the zoo to answer this question, let alone scrutinize the answer. The court’s reasoning? Because this writ, and thus this question, concerns “persons” only, and animals are not persons. It’s the same answer the L.A. court gave Billy and Tina. And this answer is misguided.

We — one of us, a former justice of Pakistan’s Supreme Court, the other, a Harvard law professor who studies animal law — reached this conclusion independently at first and now together. In fact, it is the only coherent response for common law judges who are attentive to legal scholars, scientists and ethicists. We are not strangers to this very issue. In his capacity as an appeals court judge, Athar Minallah has already made the decision we are urging of the Supreme Court of Hawaii.

In May 2020, amid growing protest regarding the Islamabad Marghazar Zoo’s treatment of animals, Minallah as the chief justice of the Islamabad High Court was asked whether an elephant named Kaavan had the legal right to freedom from confinement. Kaavan had spent 35 years in Pakistan’s capital zoo, the last eight of them alone after the death of his companion. Kaavan, like the elephants in Hawaii and L.A., had been captured from the wild as a youth and had been “gifted” — in his case from Sri Lanka to the Pakistani prime minister, whose daughter wanted one for a pet.

Visitors saw Kaavan swaying in the repetitive rocking way that scientists recognize as a symptom of severe psychological distress, and a behavior never observed in the wild. Kaavan was not an outlier. The same rocking appears in the great majority of elephants kept in zoos.

In reliance on the common law’s need to evolve with changing knowledge and circumstances, Minallah’s court viewed Kaavan as a being who had a valid claim. In the past, perhaps only humans had valid legal claims; but even if that was true, given what science now shows about elephants — that they are self-aware beings with complex social lives, long memories and deep attachments to family who suffer measurably when deprived of them — we cannot draw the line to exclude them.

Minallah ordered Kaavan’s relocation to the next-best place to the wild (which was precluded because through years of confinement he had lost the ability to live as a fully wild elephant): a sanctuary in Cambodia, where he has slowly learned how to live in the company of other elephants again.

We encourage the Supreme Court of Hawaii to face directly the question of the right of elephants Mari and Vaigai to their freedom and to answer it in their favor. Hawaii is not being asked to import foreign jurisprudence or indeed any ideas from non-Hawaiians. We believe the values that decided Kaavan’s case in Islamabad have their own deep roots in the Aloha State, including respect for nature’s dignity, kindness and humility.

Kānaka Maoli scholars have long described a viewpoint in which the natural world is kin, and aloha for it a familial obligation. We do not presume, as outsiders, to define these traditions, but to observe that Hawaii’s own voices have been saying for a very long time what Minallah’s court in Islamabad concluded in 2020 and what many other countries are likewise beginning to acknowledge: Recognizing the claims of beings who cannot vote, cannot lobby and cannot speak is not judicial activism, but the oldest function of common law.

Athar Minallah is a former justice of the Supreme Court of Pakistan. Kristen Stilt is a professor at Harvard Law School and faculty director of the animal law and policy program. She submitted an amicus brief to the Supreme Court of Hawaii in support of the claims of the elephants.