-The elephants were initially taken into custody from the owners who were prosecuted for having the elephants with no proper permits
Many have expressed concern over the government’s move to return the baby elephants to individuals who allegedly had illegal permits or none at all. Several environmental lawyers claimed the move to return the elephants to the suspects was at fault since the court is yet to arrive at a final decision on the matter and it still remains a pending case.
Environmentalists and environmental lawyers who had been involved in the issue for years raised eyebrows on the decision and said there was confusion as to how and on what grounds the decision was taken. There were claims that no provisions existed in the Fauna and Flora Act (FFA) of Sri Lanka to allow the elephants to be kept in the custody of individuals who had no legal documents.
The environmentalists claimed the Ministry of Sustainable Development and Wildlife Conservation and related authorities have categorized the alleged owners into three groups where the third category claims to release the animals back to those who had no permits but obtained the elephants in good faith, which is against the law and cannot be done.
The elephants were initially taken into custody from the owners who were prosecuted for having the elephants with no proper permits. The environmentalists are totally against the move of releasing the animals back to them. This raises question as to how the government can overwrite the court’s order and interfere with the independence of the judiciary in releasing the animals back to the owners while the cases remain pending.
“We do not know about the other two categories which are not necessarily important as far as we are only concerned about the move of releasing the elephants back to the alleged owners,” the environmentalist said.
They alleged that the elephants cannot be given back to the owners till the case is over and a ruling is given by the courts, adding that they have no idea on what grounds the ministry decided to release the animals to them.
If the government wants to release the animals then there is a way of doing it. The courts have to prove the suspects innocent and determinations should be ruled by the court regarding these cases as it is now in the helm of the judiciary, protested the environmentalists. However, the suspects who had elephants illegally cannot be proven innocent and if that happens it means the system has not acted according to the laws, they added.
The environmentalists stressed that whatever decision taken on the release of the animals should be determined by the court.
“We have filed several cases and the court proceedings are still going on. Currently the ministry is trying to overwrite the court. There is no point in talking to the ministry anymore as we have had several meetings with the officials. We tried convincing them to let the court determine the ruling about these animals but to no avail,” said Nadeeka Happuarachchi from the Galle Wildlife Conservation Society. However, the practice of taming wild elephants includes starving, beating and scaring them into submission, while keeping them chained up at all times, conservationists say. Taming a wild elephant is an extremely cruel experience for the animal whether it’s a temple or a private person. That’s how it is done, they lamented.
According to the Flora and Fauna Act No. 22 of 2009, possession of an elephant that is not licensed and registered is a punishable offence. The Act provides, “No person shall own, have in his custody or make use of an elephant unless it is registered and unless a license in respect of the elephant has been obtained,” in accordance with the provisions of the Act. Among other requirements within the duties of a custodian of an elephant, which is being registered under the Act includes registering the elephant with the prescribed officer, paying a registration fee as prescribed and obtaining an annual licence in respect of the elephant.
The Act further reads, “where a person becomes the owner, or obtains the custody of an elephant by virtue of sale, gift, the death of the previous owner or in any other manner whatsoever, such person shall immediately inform the Director or prescribed officer and, if the elephant is registered or licensed, take such steps as may be prescribed to have the previous registration and licence cancelled and to have a fresh registration made and a fresh licence obtained.”
Nevertheless, unlawful possession of an elephant is a punishable offence under the Sri Lankan law. According to S. 23 (1) of the Act this includes upon conviction being liable to a fine not less than one Rs. 150,000 and not exceeding Rs. 250,000 rupees, or to imprisonment of either description for a term not less than ten years and not exceeding 20 years or to both such fine and imprisonment.
If an elephant is not registered under this section, then it shall be presumed to be taken or removed from the wild without lawful authority or approval. Elephants kept in captivity are deemed to be public property, and the provisions of the Offences Against Public Property Act No. 12 of 1982 shall apply against those who violate the law.
The Sri Lankan elephant is one of three subspecies of Asian elephant and is found only on the teardrop-shaped Indian Ocean Island. In the 19th century there were believed to be up to 14,000. That number fell to fewer than 3,000 before hunting and capture were banned. But according to the island’s first official elephant census in 2011, the population has grown since then to nearly 6,000, but are still considered endangered and under threat from habitat loss and degradation. They are with the boundaries limited by the Wildlife Conservation Department (WCD) and the Department of Forest Conservation (DFC) confined to small, isolated spaces of jungle and pasture in the north and the east.
However, responding to the questions, the Minister of Sustainable Development and Wildlife Conservation Gamini Jayawickrama Perera said, there is no such move by the government to hand over elephants to the alleged owners as the cases are still pending, adding that whatever the decision taken with regard to the animals will be taken through the courts and a legal procedure.
“A committee, comprising of Ministers Sagala Ratnayake, Malik Samarawickrama, Wijeyadasa Rajapakshe, myself and some others, is also formed to look into this issue,” said Minister Jayawickrama Perera, adding that the committee had spoken to the President about the animals and their protection.
“The ministry is capable of looking after the animals which were taken into custody and we are ready to take care of the animals even though not sure how long the cases will go on. However 14 case files were submitted to the AG’s Department for further recommendations. Other cases will also be investigated and an action would be taken soon,” the minister added.