Jumbo problem of baby elephants caught in a travesty of justice

The Extraordinary Gazette 2241/41 for the Protection, Wellbeing and Regularisation of Registration of Tamed Elephants, apart from legitimising the use of elephants for commercial purposes such as rides and logging which had been prohibited by an earlier gazette issued in 1991, also clashes with the spirit of the Flora and Fauna Protection Ordinance which is designed to prevent the commercial exploitation of wild animals – Pic by Shehan Gunasekara

Environmentalists have been crying foul about the order which was given following the advice of the Attorney General. In a bizarre twist of fate, it resulted in the State asking the Court to hand back the elephants to the same suspects it was prosecuting for keeping the elephants illegally and with irregular documents. The order was also made while the cases are ongoing, which has added to the consternation among sympathisers

By Sarasi Wijeratne

A report from the Department of Wildlife Conservation (DWC) will be pivotal for the fate of a mother elephant and her calf at the centre of a tug of war between their lawyers and the Sri Lankan State. 

A magistrate in the Colombo Magistrate’s Court asked for the DWC’s opinion on whether the calf should be handed back to its caretaker when the matter came up for a hearing yesterday. The case will be heard again next week. 

A small victory on the road to justice

Earlier on Monday, conservationists and animal rights activists on the long road to justice for 38 elephants had a small victory.

A group of them, including the Centre for Environmental Justice, Justice for Animals and the Wildlife and Nature Protection Society (WNPS), got a Court order to temporarily halt the mother and her calf from being handed over to their unlawful caretakers. The two elephants are among 14 elephants the Court last week ordered the Director General of the Dehiwala Zoological Gardens to hand back.

They are also fighting for the elephants who have been handed back to caretakers to be returned to the custody of the DWC and the Zoological Gardens. A DWC source said that 13 elephants have already been taken away by their caretakers. 

The Court order lists 14 people to whom the elephants should be returned. Buried amidst the detail is the name N.G. Rajapaksa of 26, Pangiriwatte Mawatha, Mirihana, Nugegoda, the former Defence Secretary and current President of Sri Lanka. When Gotabaya Rajapaksa was Defence Secretary, he was bestowed an elephant through a Presidential decree. The President at the time was his brother Mahinda Rajapaksa. In 2015, N.G. Rajapaksa handed back the elephant to the wildlife authorities saying he could not maintain it. 

The Court order that the elephant should be handed back to him has thrown up a moral dilemma. On Monday, the Court also heard from the CID that as part of the investigation, they had not taken a statement from Rajapaksa.

Within a matter of days after the Court made the order, the elephants were seen being forcibly taken away in the night from their refuge in the Pinnawala Elephant Orphanage, a place for elephant watching that is popular with tourists and locals. A gut-wrenching video of one of the elephants, Sri Devi, protesting and refusing to get on the truck which had arrived to take her away from the haven she had got used to, has been doing the social media rounds.

Zoological Gardens Director Ishini Wickremesinghe resigned over the incident. A post on her Facebook account said that Sri Devi was a very loving and affectionate elephant and was her favourite in Pinnawala. “I was helpless in protecting her and the other elephants from being forcibly taken away from Pinnawala. What cruelty it is to take away their freedom for one’s individual interest,” she wrote.

Environmentalists have been crying foul about the order which was given following the advice of the Attorney General – the country’s highest judicial officer. In a bizarre twist of fate, it resulted in the State asking the Court to hand back the elephants to the same suspects it was prosecuting for keeping the elephants illegally and with irregular documents. The order was also made while the cases are ongoing, which has added to the consternation among sympathisers. 

Extraordinary Gazette 2241/41 at the root

At the root of the order and the mayhem is Extraordinary Gazette 2241/41 for the Protection, Wellbeing and Regularisation of Registration of Tamed Elephants which was issued on 19 August 2021 and signed by the State Minister for Wildlife Protection and Adoption of Safety Measures Wimalaweera Dissanayake. The three sections of the gazette cover the protection and welfare, registration and participation of tame elephants in historical and cultural pageants. 

Apart from legitimising the use of elephants for commercial purposes such as rides and logging which had been prohibited by an earlier gazette which was issued in 1991, it also clashes with the spirit of the Flora and Fauna Protection Ordinance which is designed to prevent the commercial exploitation of wild animals. Crucially, 2241/41 also makes it easier to be in possession of an elephant. 

“Before the new gazette, when someone wanted to apply for a licence to keep an elephant they had to answer questions about its parentage, how they came into possession of the elephant and why they want the elephant,” explains Jagath Gunewardene who is often consulted on issues of wildlife crime and the environment. “The question of how the elephant came into the possession of the prospective applicant has been left out under the new regulations. Even if someone steals an elephant from the wild, it can now be registered easily.”

The gazette has also created layers of approvals and recommendations which are needed from the Association of Tame Elephant Owners, the Buddhasasana Ministry and Wildlife Ministry before a licence is issued to keep an elephant. It undermines the work of the DWC which is the only authority that can issue a licence which has to be renewed every year.

In Sri Lanka, the elephant is considered public property unless it is registered. “To say that someone owns an elephant is a misnomer,” points out Gunewardene. “One can only be a caretaker of an elephant.”

Keeping an unregistered elephant is a non-bailable offence which can incur a fine of up to Rs. 200,000, a term of imprisonment between two and five years or both. Nayanaka Ranwella, a conservationist and activist, points out that the 14 elephants had not been registered. The new gazette will make way for their registration within the next three months, a provision the State relied on in its application to court to discontinue the cases.

Elephants’ troubled past

The elephants have a troubled past. Ranwella says these 14 elephants are part of a bigger group of 70 elephants who were removed from the wild and were victims of a smuggling racket. From the testimonies of mahouts, about 26 elephants died when they were with their unlawful caretakers. Another six elephants are currently with private parties, including high profile State officials. 

According to environmental activist Sajeewa Chamikara of the Movement of Land and Cultural Reform, the elephant smuggling racket started around the year 2000 but intensified in 2010 and 2014 because of State patronage. Pressure from conservationists and activists led the police and CID to start prosecutions against the unlawful owners of another 38 elephants who then became Court exhibits. They were kept in the Pinnawala Elephant Orphanage which comes under the administration of the Zoological Gardens and the Elephant Transit Home in Udawalawe which is under the purview of the DWC. Although the elephants were calves at the time, they have now grown into sub-adults. 

In March this year, Prime Minister Mahinda Rajapaksa and Minister of Wildlife and Forest Conservation C.B. Ratnayake had presented a paper to the Cabinet of Ministers and asked for approval to discontinue the cases and hand back the elephants to their unlawful owners. The Cabinet’s decision ended with the August gazette. 

Smuggling racket

Conservationists are worried the smuggling racket could be raising its ugly head again because of a trend they have observed. Earlier in July, the body of a female elephant was found in Gallinda Mahawewa, in the Minneriya National Park. It was in the same area that a month before wildlife officials had been alerted about a case of an elephant calf being stolen.

In his report on how baby elephants are captured, retired Judge Nimal Edward Dissanayake explains that one of the ways is to shoot the mother and take the calf away. Tranquilising the mother or the baby or recapturing elephants that the Elephant Transit Home has released back to the wild are the other ways that smugglers get to the baby elephants. He also claims that knowingly or unknowingly, wildlife officers give elephants at the Transit Home to individuals.

Engaging elephants in commercial work

Supun Lahiru Prakash, the Director of the Biodiversity Conservation and Research Circle, and a team of other researchers are the authors of the study on the Illegal Capture and Internal Trade of Wild Asian Elephants (Elephas maximus). “Elephants are smuggled for commercial activities,” he says. “The use of elephants for logging, rides and other commercial activities is more lucrative than parading them in a pageant.” 

It was also a way to circumvent the earlier gazette of 1991 which prohibited engaging elephants in commercial work. The new gazette legitimizes the use of elephants in commercial activities but is a regressive step. “It is seemingly a good thing, but something that was not there in the earlier gazette has now been introduced.”

Prakash says that after 2009, there were more people who wanted to keep an elephant as a status symbol. “It’s a prestige thing.” It also contributed to the need to smuggle. Engaging elephants in other work, led to the decline of their availability for peraheras which got a fillip after the conflict ended. 

Participation in peraheras and pageants

The participation of elephants in peraheras and cultural pageants is a thorny issue where the fault lines between the Buddhist clergy and conservationists resurface. Elephants are closely associated with Buddhist and Hindu religions and their participation in religious and cultural pageants has become ritualistic. 

Many Buddhist temples have an elephant, even a tusker. After the Court order, prominent Buddhist clergymen called a press conference and thanked the Government for releasing the elephants back to their caretakers. They said the Government and clergy had to protect the elephant because the animal has been an integral part of the perahera culture since ancient times. 

The dichotomy between wild and tame elephants is also central to the tensions among the various groups. “Unlike dogs and cats who for centuries have been known to be domestic animals, the elephant is inherently a wild animal,” says Ranwella. “Its DNA is such. Ultimately this characteristic will transcend everything else.”

The reaction of conservationists and activists on the issue of elephants in peraheras is a mixed one. At one end of the spectrum is the position that this ancient practice has to be done away with. On the other, there is acceptance that it is an ingrained tradition which will be hard to shake off and compromises are made with the proviso that the welfare of the animal must be paramount. 

Both Prakash and Ranwella bring up a proposal from the past which has been lying dormant. It is to designate a group of about 80 elephants from Pinnawala for the perahera. They will be maintained by the State and will be loaned for the perahera. “They must not be loaned for every perahera like the smaller ones that are held by schools and the katina, a seasonal mini parade in the Buddhist calendar,” says Prakash. “Their use must be limited to the bigger peraheras.”