8 November 2024 09:08 am Views - 20
By Lakmal Sooriyagoda
The Supreme Court yesterday issued several interim orders, including staying and suspending all proceedings in the impugned Colombo Chief Magistrate’s Court case, where an order to release elephants to suspects in those proceedings, had been made by the Magistrate. President’s Counsel, Sanjeeva Jayawardena, appearing for the petitioners, being the Centre for Eco-Cultural Studies and Visakha Tillekeratne, in making submissions, urged before the Supreme Court, that this order of release, was patently illegal, as such order for release was in violation of the Fauna and Flora Protection Ordinance and also in direct violation of a formal interim order that had been issued previously as well, by the Supreme Court.
He submitted that the elephants had been previously taken into protective custody by the Wildlife Department, in as much as several offences pertaining to such elephants, including illegal tampering with the Elephant Register and also, fraudulent and falsification of documents, had been allegedly committed. The petitioners also urged that in addition to directly violating the Supreme Court interim order, there the impugned order of release, was further in violation of a final judgement of the Court of Appeal, that had directed the prosecutions of suspects that had committed such offences.
The order made by Supreme Court justice Preethi Padman Surasena and Justice Arjuna Obeyesekere, also included an interim order, suspending the order made by the Magistrate, which had ordered the release of the elephants to the possession of these suspects and the court also made order, calling for the entire record in the Magistrate’s Court and directed that no further proceedings whatsoever, could be held in the Magistrate’s Court, until the Supreme Court made its final determination of this case, where illegal cabinet decisions to release elephants, to persons who held elephants without both a valid registration as well as a licence, had been resorted to, by the then cabinet of ministers. The Supreme Court also ordered the Registrar of the Supreme Court to retain the custody of the Magistrate’s Court case record and also summoned the Registrar of the Magistrate’s Court, who was informed of the specific terms of yesterday’s interim order and the suspension of all further proceedings in the Magistrate’s Court. The court directed that these interim orders will remain effective until the Supreme Court makes its final determination on the Fundamental rights application.
The Supreme Court also inquired from the Attorney General, representing the Director General of the Department of Wild Life & Conservation, as to why there was unnecessary delay in preferring charges in the Magistrate’s Court, against any perpetrators of offences under the law.
Jayawardena stated that although the interim order had been issued by the Supreme Court, that this had not been initially brought to the attention of the Magistrate’s and that his client took immediate steps to formally intimate this grave omission to the Attorney General and that thereafter, the Attorney General had on the next days proceedings in the Magistrate’s Court, duly brought the interim order of the Supreme Court, to the attention of the Magistrate but that the Magistrate’s Court had not revoked it’s per incuriam order of release. It was submitted that it is vital that the lower court must have full and due regard to orders, issued by none other than the apex court of the country.
Sanjeeva Jayawardena PC with Prashanthi Mahindraratne, Dilumi De Alwis and Rukshan Senadheera appeared for the petitioners.
Senior Additional Solicitor General Viveka Siriwardena appeared for the Respondents. On May 31, 2024, the Court of Appeal had issued a Writ of Mandamus directing the Director General of Wildlife Conservation, CID, IGP and the Attorney General to take necessary steps to prosecute all individuals who illegally kept the elephants referred to the Colombo Chief Magistrate’s Court and Matale Magistrate’s Court, who have not been lawfully registered in terms of the laws.
The Court had further issued a Writ of Certiorari quashing the decision of the Chief Magistrate’s Court of Colombo and Magistrate’s court in Matale releasing elephants back to the perpetrators.
The Supreme Court was informed that the Attorney General, representing the Director General of the Department of Wild Life & Conservation, before the Magistrate’s Court of Colombo on August 02, 2024, had informed the Magistrate that the State did not intend to prefer charges against the Claimants, in respect of the unlawful possession of these three elephants. Sanjeeva Jayawardena PC submitted to the Supreme Court that the Attorney General consequently had no objection to the release these elephants to the claimants, which most unfortunately is in patent violation of the Supreme Court stay order, dated 08.12.2022 as well as Court of Appeal Writ of Mandamus.
Subsequently, the Magistrate had issued an order, directing the Director General of Wildlife & Conservation, to release the said three elephants to the Claimants on 23.10.2024.
The petitioner had taken immediate steps to formally inform the Attorney General of the aforesaid error and informed the Magistrate of the same.
The Supreme Court was further informed that nevertheless refrained from suspending the said order (per incuriam) made on 23.10.2024 and instead, the Magistrate’s Court refixed the matter to be called on 8th November 2024.
The environmental organizations alleged that 15 elephants held under the custody of the Department of National Zoological Gardens as productions were released back to those accused of illegally capturing them from the wild and keeping them in their possession under fraudulent documents.