Supreme Court halts attempt to release illegally held elephants to suspects

• Also directs that no further proceedings whatsoever, could be held in the Magistrate’s court, until the SC made its final determination of this case

 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.