Courting Disaster-

Concern mounts over court decision to return elephants to ‘wrongful’ owners
by Hafsa Sabry- Sunday leader

The court order to return baby elephants to individuals who allegedly had illegal permits was suspended temporarily in the high court on May 26 due to confusion with regard to legal provisions applicable to the Public Property Act. Several environmental lawyers claimed the order to return the elephants to the suspects was at fault but the court is yet to arrive at a final decision on the matter and it still remains a pending case.
Colombo Chief Magistrate Gihan Pilapitiya ordered officials of the Department of Wildlife Conservation (DWC) to return the baby elephants seized over allegations they were stolen or had no proper documents to prove how they were obtained, back to their caretakers. According to higher officials of the DWC there was an attempt to give back 13 baby elephants to the persons who allegedly possessed fake permits.
Environmentalists and environmental lawyers who had been involved in the issue for nearly a year expressed concern over the court order and said there was confusion as to how and on what grounds the court order was given. Many eyebrows were raised over the court order and 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.
According to the Flora and Fauna Act 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 license 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 license cancelled and to have a fresh registration made and a fresh license 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 hundred and fifty thousand rupees and not exceeding two hundred and fifty thousand rupees, or to imprisonment of either description for a term not less than ten years and not exceeding twenty 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.
Environmentalist and Director of Centre for Environment and Nature Studies (CENS) Ravindra Kariyawasam says an individual who has the capability to look after an elephant is allowed to have the animal in his or her possession under a number of conditions and regulations in the Act. The animal should be more than five years old and especially should not be separated from the mother-elephant during its feeding stage. According to the laws, an individual can own an elephant without violating the rights of the animal.
Most importantly, the person who wishes to possess an elephant should be approved by the DWC. A permit comes with a number of regulations including that the person should be capable of maintaining the elephant without violating its rights, should be capable enough to provide enough food, water, proper medical treatment in case the animal falls sick, appropriate accommodation and a pool to bathe.
Kariyawasam says that in cases where elephants were found in the possession of individuals without legal permits and adequate information on how the animals were obtained, they were stolen from the wild violating the rights of the animals as well as the Flora and fauna Act.
What was the point, Kariyawasam queried, in having carried out several investigations and arrest of suspects by the Police and CID regarding illegal permits and violation of the law, if the elephants can be returned to the suspects after a while.
Kariyawasam also claimed that even the government would be seen as assisting the violation of the law if they allowed the suspects to have the animals back in their possession. He also explained that some of the temples including the Dalada Maligawa have requested elephants to be kept under their custody for perahera purposes.
“If they want elephants for traditional purposes and celebrations they can always hire an animal from the Pinnawela orphanage and return the animal once the purpose is fulfilled rather than keeping the animals under the poor care of the mahouts of the temple,” Kariyawasam further stated.
The animals were captured from the wild and owned by a number of temples and by other individuals solely to earn money and, the move to give the animals back to those considered wrongdoers, give the impression that the government is not too concerned about the laws and regulations of the FFA, Kariyawasam lamented.
However, the Director, Species Conservation Centre (SCC) Pubudu Weeraratne told The Sunday Leader that it is not clear why the magistrate ordered the animals to be given back. He refrained from commenting on the matter as it is still a court case.
Nevertheless, Weeraratne stated that even though the provisions of the FFA states elephants cannot be owned without a proper permit, the elephants under the suspects’ custody were registered in the elephant registry of the DWC.