As a child and a young unmarried adult, I longed and fantasised about having a chimpanzee as a pet. These longings and fantasies were laid to rest upon the arrival of my children, though they were occasionally resurrected to weigh the merits and demerits of raising children and chimps!
Courts in New York have been petitioned by an organisation called the Nonhuman Rights Project (NRP). These petitions seek recognition of four chimps who have worked in television and films as “legal persons” and the applicability of fundamental rights to them. According to its website, “The Nonhuman Rights Project is the only organisation working toward actual legal rights for members of species other than our own. Our mission is to change the common law status of at least some nonhuman animals from mere ‘things’, which lack the capacity to possess any legal right, to ‘persons’, who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them.”
This week, the NRP’s attorneys completed the first round of litigation by filing habeas corpus petitions seeking to get the four chimpanzees, Tommy, Kiko, Hercules and Leo, released into sanctuaries to enable them to spend their remaining lives there. The organisation explained that “these habeas corpus writs are a way of going before the court to argue that our chimpanzee plaintiffs are legal persons with the fundamental right to bodily liberty, based on their level of complex cognition, self-awareness and autonomy, rather than simply pieces of property that can be owned, imprisoned and used for experiments.” All the petitions were denied, as the lower courts refused to issue a writ of habeas, which would recognise the chimps as ‘persons’, but all the judges wished the organisation luck in their endeavours! The NRP is gearing up to file appeals challenging the decisions of the courts.
Our constitution states: “To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.” It guarantees protection of life and liberty, provides mechanisms and safeguards against arrest and detention, which require that “no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice; every person who is arrested and detained in custody shall be produced before a magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” There is a mechanism for ‘preventive detention’, which states that no person shall be detained beyond a period of three months unless it has been authorised by a review board. The review board “in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court; and in the case of a Person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.”
The constitution guarantees the fundamental rights of fair trial, dignity of person, privacy of home, protection against self-incrimination and double jeopardy. It empowers our courts to issue a writ of habeas corpus, “directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.”
If this is correct, then who are the ‘missing persons’? Who are the people who are camped out, hoping for a ray of hope, a piece of news, which tells them where their loved ones are? Praying that they are alive, dreading that they may not be. During the past months, I happened to be present in Court Room One when a number of petitions regarding ‘missing persons’ were taken up. It was heart wrenching — the court trying to recover the individuals or at least to find out what fate they had met — anything that would give closure to the families: the hundreds of mothers, fathers, wives, children, siblings. Anyone who says that the issue was not worth the time being spent on it seriously needs to put themselves in the shoes of the people knocking at the doors of the apex court. Imagine if your son or brother or husband or father went ‘missing’ with no clue as to his whereabouts. Would you write them off as ‘dead’ and move on?
I remember watching an interview with the late Jameel Fakhri, the legendary Pakistani artist. His son had gone missing in the US. As the poor father pleaded and begged the government to ascertain the whereabouts of his missing son, he broke down and, in excruciating pain, asked to be given his body to be buried at least.
In response to the advocate general’s contention last year that “the law and order situation in Balochistan related to a mere 200 persons and was not an issue for the 6.5 million population of the province,” I wrote, “Any person with a child, a sibling, a parent or a loved one would know that those 200 missing people are not just statistics; they are someone’s child, sibling, parent or a loved one. They represent 200 families comprising of scores of grieving members who wait every single day, every single minute, for the sound of their footsteps or writhe in unbelievable agony waiting for a body to be buried. Abducting people and holding them in indefinite custody, letting their families suffer in agony, not knowing whether they are alive or dead, is immoral and unlawful. As a nation, we should be ashamed even if one person goes missing. Would it just be a mere 200 if, God forbid, the learned law officer’s son went missing?”
If these persons are guilty, get the evidence and then incarcerate them after holding a fair trial. If not, are they worse than chimpanzees, with no right to bodily integrity and liberty? I cannot help but be reminded of the three wise monkeys, who ‘see no evil, hear no evil, speak no evil’. We can, as a nation, decide to personify this but the fact will remain that ‘evil’ does exist. The year 2013 has brought major changes to Pakistan: a new prime minister, army chief and Chief Justice. I cannot dream of taking away anything from the now retired CJP Iftikhar Muhammad Chaudhry for all he strove to accomplish. For the critics, I can only say that we are mortals, not divine. As another era begins, I can only hope that the three wise ones are joined by the fourth wise monkey ‘do no evil’- heralding the supremacy of the law!
The writer is an advocate of the High Court