• Controversy surrounds new gazette empowering private ownership

BY Sumudu Chamara

Following cultural and religious practices instead of comprehending their essence has gradually become the norm in Sri Lanka’s so-called proud tradition, and the country has been left with so many practices that are meaningless or have lost their intended, original meaning.

This theory applies to not one, but many aspects of the country’s traditions, and unfortunately, the drawn out discourse regarding elephants being used for peraheras (ceremonies) and being given to private ownership, has achieved little progress, mainly due to its supposed cultural aspects superseding its environmental and animal rights aspects.

New laws

The issue of elephants being given to private ownership took a new turn recently, following a court decision to return 14 elephants to the persons who had them in their possession in the first place.

This decision, which came under fire from environmentalists and animal rights activists as per the extraordinary gazette notification dated 19 August, was issued with regard to adapting safety measures for elephants, under Section 22A of the Fauna and Flora Protection Ordinance (Chapter 469) read with Section 71 of that Ordinance. 

Regulations coming under the gazette notification, which focused on the protection and wellbeing of tamed elephants, the regularising of the registration of tamed elephants, and obtaining tamed elephants for historical cultural processions had been made by Wildlife Protection, Adoption of Safety Measures including the Construction of Electrical Fences and Trenches, and Reforestation and Forest Resource Development State Minister Wimalaweera Dissanayake. It also included applications for the registration of tamed elephants, the registration of unregistered elephants that are currently in the custody of an owner, the licence for the registration and detainment of a tamed elephant, the renewal of the annual licence, the data record book, and the obtaining of elephants for a historical cultural procession.

Under the section “Obtaining Tamed Elephants for a Historical Cultural Procession”, the gazette notification noted that where it is required for a devalaya (shrine) or temple which organises a historical cultural procession to obtain a tamed elephant, the trustee or chief incumbent of such devalaya or temple must make an application on this behalf in the format specified in Schedule VII of the Ordinance to the Tamed Elephant Owners’ Association, which shall be endorsed by such organisation and sent to the Commissioner General of Buddhist Affairs for recommendation.

The application, recommended by the Commissioner General of Buddhist Affairs, shall be sent to the Secretary to the Ministry of the Minister assigned the subject of Buddha Sasana for approval, and upon approval, the Secretary shall direct the Director General of Buddhist Affairs or the Director General of the Department of National Zoological Gardens that any tamed elephant in the custody of the Director General of Buddha Sasana or the Director General of the Department of National Zoological Gardens, be duly released for such purpose.

Under the “Protection and Wellbeing of Tamed Elephants” gazette notification, it is said that a healthy and suitable elephant shall be used for breeding purposes, and that a committee shall prepare an appropriate procedure which shall be implemented and supervised by the Director General from time to time.

The committee is to comprise an officer of the Department of Wildlife Conservation (DWC) nominated by the Director General, the Director General of the Department of National Zoological Gardens or his representative, a veterinary surgeon nominated by the Director General of the Department of Animal Production and Health, a registered traditional doctor who treats elephants nominated by the Secretary to the Ministry of the Minister assigned the subject of Indigenous Medicine, and the Chairperson, Secretary, or the Treasurer of the Tamed Elephant Owners’ Association.

The appointment of two other committees has been proposed in the said gazette notification under “Regularising the Registration of Tamed Elephants”, for the purpose of examining and making recommendations in the process of granting licences.

Firstly, the examination committee is to comprise an Additional Secretary of the Ministry of the Minister assigned the subject of Wildlife nominated by the Secretary (who shall be the Chairman of the Committee), a government agent of the district within which the applicant resides, an Additional Secretary of the Ministry of the Minister assigned the subject of Home Affairs nominated by the Secretary to such Ministry, a Deputy Director or a veterinary surgeon of the DWC nominated by the Director General, a veterinary surgeon of the Department of National Zoological Gardens nominated by the Director General of such Department of National Zoological Gardens, a Director of the Buddhist Affairs Department nominated by the Commissioner General of Buddhist Affairs, and Chairperson, Secretary, or Treasurer of the Tamed Elephant Owners’ Association.

Secondly, the recommendation committee is to comprise the Secretary, the Secretary to the Ministry of the Minister assigned the subject of Public Administration, the Director General, the Commissioner General of Buddhist Affairs, and the Director General of the Department of National Zoological Gardens.

Controversy regarding the gazette

Even though the authorities claimed that the issuance of the gazette notification was a measure to strengthen the legal protection of elephants, animal rights activists, especially those who fight for elephants’ rights, expressed strong concerns against it, alleging that this is just another step to encourage the illegal capturing and taming of wild elephants. Moreover, some also claimed that there are shortcomings in the gazette notification.

It was reported that environmentalists were preparing to take legal action to address the flaws in this process and to address any elements that may be detrimental to elephants. Centre for Environmental Justice (CEJ) Chairman Attorney-at-Law Ravindranath Dabare, speaking to The Morning, confirmed this, noting that in a few days, a case will be filed in this connection. When queried about the concept and practice of providing elephant ownership to certain individuals, he noted that laws should be strengthened to protect elephants and to let them be as they are. Further, he mentioned that the number of elephants being used for peraheras should be limited.

Meanwhile, speaking to The Sunday Morning, environmental lawyer Dr. Jagath Gunawardana had stated that there are several shortcomings in the gazette, and that although the gazette notification was issued only recently, it was being applied to cases filed earlier.

He pointed out one flaw, stating: “As per the new provisions, during the registration process, there is no requirement to declare how the elephant came under one’s ownership. The lack of authentication here leaves plenty of leeway for further exploitation of the animal.”

Dr. Gunawardana had further stated that according to the Fauna and Flora Protection Ordinance, Sri Lanka does not allow the ownership of wild animals. However, custodianship under a licence issued by the DWC is permitted.

The Ordinance notes: “Any person who owns, has in his custody, or makes use of an elephant which is not registered, and in respect of which a licence has not been obtained in accordance with the provisions of this section, shall be guilty of an offence and shall on conviction be liable to a fine not less than Rs. 150,000 and not exceeding Rs. 250,000 or to imprisonment of either description for a term not less than two years and not exceeding five years or to both such fine and imprisonment. A person who is found in possession of an elephant shall be deemed to be in unlawful possession of that elephant unless he is the captor of that elephant under the authority of a licence issued under this Ordinance or under any written law repealed by Ordinance, No. 2 of 1937, or he is the successor in title to such captor, or he is in possession on behalf of such captor or his successor in title”.

However, there seems to be some sort of disagreement among those who issued the gazette notification. Speaking to The Sunday Morning, State Minister Dissanayake had said that the gazette contained several provisions on employing elephants for strenuous activities, which even he did not agree with. He had further stated that officials have been advised to proceed as per the court orders for the time being; however, the gazette would be taken up in Parliament.

Owning wild animals

Speaking to The Morning, conservationist Rukshan Jayawardene said that even though there are laws and regulations to protect elephants, the enforcement of those laws, however, do not take place properly. He also pointed out the DWC not being adequately equipped as one of the causes for this situation. 

“It is not a matter of legal provisions, but of the actual execution of the law and the understanding of how these crimes should be viewed,” he noted.

“Elephants are protected wherever they live, not just within national parks and reserves, and they are protected under the Fauna and Flora Protection Ordinance. The problem is that the DWC is a bit understaffed and underfunded. These elephants were captured from the wild, and some of them may have been captured from protected areas. That means that the DWC is unable to give enough security to the wildlife in those parks at all times. That is one of the problems. The other problem is in the legal process that involves these issues. There are various loopholes that the people who are involved in the illegal wildlife trade use. Even when it comes to the people who actually hunt animals, when they get caught and prosecuted, sometimes, they claim that they find various ways to escape without even paying the minimum fine or something like that. Those are the kinds of shortcomings on the part of the law.”

Discussing the widespread belief that people of power, especially politicians, have contributed to continuing the illegal elephant trade in Sri Lanka, Jayawardene said that this is a pressing issue. He added that such persons of influence may hinder action being taken against this racket.

Moreover, Jaywardene noted that lawyers are of the view that the independence of the judiciary had been compromised during the process of taking action against those who illegally capture and detain elephants.

He added: “In fact, if we look at confiscated elephants being produced before court, they have been confiscated because they are stolen in one sense, and also, they have been kidnapped from the natural environment. Therefore, it is being in possession of a stolen property. Those who have elephants in their possession are not real owners, because elephants are considered public property in this country and are also protected by the Flora and Fauna Protection Ordinance as an endangered species or a unique subspecies of Asian elephants. Also, in a lot of ways, they are considered valuable, especially traditionally. We may not be able to prove some of these things legally. Also, we should remember that even if elephants are not kidnapped or taken from the wild, all elephants in Sri Lanka, whether they are in a domestic setting whom we call captive elephants, or whether they are in a national park or in an unprotected area, if there is any ownership, the owner is the State. There is no exception. But that theory is also likely to be changed, even though the private ownership of elephants is still difficult to legally achieve.” The Morning’s attempts to contact the Tamed Elephant Owners’ Association were unsuccessful.

 

Laws regarding the use of elephants

Animal rights activist Panchali Panapitiya, who has been vocal about elephant rights, said that the above-mentioned gazette notification seems to focus more on the wellbeing of elephant owners, rather than the protection of elephants. She claimed that the authorities have violated the Fauna and Flora Protection Ordinance, by preparing the said regulations, as the Ordinance says that a person cannot use animals for commercial purposes.

She added: “In this case, elephants are likely to be given for elephant riding, which is illegal, and it seems like elephants have been given the lowest standard possible. In the second part, the Government has given the opportunity to register illegally captured and detained elephants. Any unregistered elephant is an illegally captured and detained elephant, because in Sri Lanka, one cannot capture elephants from the wild,” Panapitiya added.

Speaking of the aforementioned examination committee, she questioned the composition of the committee. Adding that the authorities have appointed a committee for the registration of elephants, which comprises persons from the Tamed Elephant Owners’ Association, the Buddhasasana Ministry, and the Home Affairs Ministry, among others, she questioned their eligibility to take wildlife-conscious decisions regarding elephants.

She added that as an environmentalist, she does not expect any private party to be in that committee, even though environmentalists are willing to advise the Government.

Panapitiya noted: “They have given sole authority to the Buddhasasana Ministry to decide which elephants would be gifted to temples. They will inform the Wildlife Conservation Minister and Secretary to give the elephants.”

Highlighting the gravity of the situation, she added: “At least two or three elephants face untimely deaths each year while in captivity.” Moreover, she noted that the solution is to establish a mechanism which allows the Government to take all elephants into its custody and to distribute them depending on the need, in a systematic manner that allows the monitoring of the elephants.

When queried as to why Sri Lanka has failed to address the issues pertaining to wild elephants despite it being a national-level discussion for years, she added: “It is because of the never-ending greed of elephant owners to take elephants.” To ensure a better environment for elephants, she proposed that there be a complete ban on the commercial use of captive elephants and that Sri Lanka limit the number of elephants used for peraheras.

She also lamented that despite the pressing need to reduce the number of elephants that are being used for peraheras, there are plans to increase that number to hundreds in the future.

Further, Panapitiya noted that if there is a need to use elephants for peraheras, the Government should identify the temples that require elephants and grant permission only to those temples, instead of granting such permission to any temple. Despite the discussion on elephant protection being a national-level concern for years, if not decades, it is evident that Sri Lanka has failed to come up with effective solutions. The measures the authorities take, such as the recent gazette, according to animal rights activists and certain authorities, are questionable, and may reverse the progress Sri Lanka has achieved, if any, as far the elephants’ wellbeing is concerned. 

Whatever the legal situation may be, Sri Lanka cannot forget that elephants are wild animals, and as such, keeping them in captivity is unnatural.