Release of 14 elephants back to captivity: Is it a jumbo victory for alleged elephant captors ?

A baby elephant that was prevented from being released to suspects following a court case filed by CEJ

On or around September 6, 2021, the Magistrate’s Courts in Colombo Fort and Matale ordered the Director-General of National Zoological Gardens to release elephants that were in the custody of the Department of National Zoological Gardens (DNZG) as productions in cases bearing Nos. B 23073/01/15 and B 941/14, respectively back to their so-called owners. This order was made upon the consideration of an application made by the Officer-in-charge of the Special Investigation No. 1 of the Criminal Investigation Department. The application was based on the Gazette Extraordinary No. 2241/41 dated August 19, 2021 issued under the Fauna and Flora Protection Ordinance (FFPO) as amended and on Attorney General’s instructions.

"My opinion is that if these elephants were given properly then it wouldn’t have led to the present situation - Gamini Jayawickrama"

CEJ files action

Subsequently, the Centre for Environmental Justice (CEJ) issued a letter of demand to the Attorney General’s Department urging them to take immediate action to rectify the injustice caused by releasing 14captive elephants kept under the custody of the DNZG. These 14 elephants were kept by individuals with alleged   fraudulent documents and without registering them in terms of the provisions of FFPO No. 2 of 1937 as amended. 
The letter further said that the said application made before the Magistrates for the release of productions of an unconcluded matter is contrary to the provisions of Sections 6 (3)(c ) of the Interpretation Ordinance No. 21 of 1901 as amended. The CEJ has also sent a letter of demand to the State Minister of Wildlife Wimalaweera Dissanayake, Wildlife Minister C. B. Rathnayake and Director General of the Wildlife Conservation Department urging to rectify the injustice caused by releasing the 14 elephants.
The CEJ has filed a writ petition against the AG’s Department and CID and it has been approved by courts. “So far we haven’t received any response to the Letter of Demand sent to the AG’s Department,” opined CEJ Chairman and Attorney-at-Law Ravindranath Dabare.
He further said that the CID is conducting investigations on 38 more elephants. 

"They shouldn’t have been released in the first place. On the other hand they were kept without proper licenses and giving them back to their original owners cannot be justified by anyone - Dr. Harsha De Silva"

Revelations by the Committee report

In 2015 a one-man committee headed by retired Supreme Court Justice Nimal Edward Dissanayake was appointed by the then Wildlife Minister Gamini Jayawickrama Perera to report on allegations of corruption in the registration and issuing of licenses for elephants. The report revealed that Department of Wildlife Conservation officials have allegedly been engaged in corrupt transactions in trading elephants between 2011 and 2014. 
The report further revealed that elephants were illegally captured from the wild, either by killing the mother and taking away the baby, anesthetizing the mother or the baby, capturing elephants released to the wild from the Udawalawe Transit Home or capturing elephants from Pinnawala Elephant Orphanage with the assistance from Wildlife Department officials. It further mentioned how forged documents were prepared to keep elephants in custody of individual owners especially after the Flora and Fauna Protection (Amendment) Act No. 22 of 2009 introduced stringent regulations on elephants held in captivity and their registration process.
Following a complaint filed by then Deputy Minister of Tourism Wasantha Senanayake, action was filed against 13 suspects on charges of altering the elephant registry at the Wildlife Conservation Department enabling suspects to take possession of elephants. Upon being rescued the elephants were kept at the Pinnawala Elephant Orphanage and Udawalawe Elephant Transit Home. 

"This is a good example to show how the government is bringing in new laws to favour their agendas - Anura Kumara"

It was illegal to release these elephants back then: Former Wildlife Minister

“When former President Maithripala Sirisena summoned the then Attorney General and CID officers and requested the release of these elephants both the AG and CID officers said that it cannot be done,” recalled former Wildlife Minister Gamini Jayawickrama Perera. “That was the legal background back then. My opinion is that if these elephants were given properly then it wouldn’t have led to the present situation.”
Opposition MPs raise concerns
Adding their comments, a few opposition MPs also voiced their concerns on the matter : 

"People have encroached elephants’ habitats and now both elephants and people are victims of the Human-Elephant conflict - Ven. Elle Gunawansa Thera"

People will lose faith in the judiciary – Rahman

“There were certain cases filed during the 2015-2019 period  against the illegal captivity of elephants but this government has decided to hand them back to the original owners, “opined Samagi Jana Balawegaya (SJB) Parliamentarian Mujibur Rahman. “There were instances of stealing baby elephants from the wild prior to 2015. The elephant logbook was stolen, documents were forged and the government knows all this. The wildlife ministry also knows these incidents but it is unclear as to why they decided to release the elephants.”
He further said that several cases of bribery and corruption have been withdrawn by the Attorney General’s Department after the present government came into power. “These were filed prior to 2019 but it is the same people who are now in power. However they must show their honesty to the courts. It is an unfortunate situation to the law and order in this country and if it continues, people will lose faith in the judiciary.”
Decision should be reversed – Dr. De Silva 
Echoing similar sentiments SJB Parliamentarian Dr. Harsha De Silva said that these elephants were likely to be captured from the wild after killing their mothers. “They shouldn’t have been released in the first place. On the other hand they were kept without proper licenses and giving them back to their original owners cannot be justified by anyone. I think this decision is wrong and it should be reversed.”

"There were instances of stealing baby elephants from the wild prior to 2015. The elephant logbook was stolen, documents were forged and the government knows all this - Mujibur Rahman"

President’s elephant was also released - Dissanayake 

In his comments, People’s Liberation Front (JVP) leader Anura Kumara Dissanayake said that the legal basis for this decision was provided from the gazette issued on August 19. “This is a good example to show how the government is bringing in new laws to favour their agendas. But what is quite surprising here is that only 13 elephants were court objects. The 14th elephant that was released was the President’s elephant. It wasn’t a court object but they made use of this court decision to release this elephant as well.”

"Elephants should be owned or held under the custody of the state. They shouldn’t be registered for individual ownership - Ven. Sagara thera"

Concerns raised by the clergy 
Not satisfied with the procedure: Ven. Elle Gunawansa Thera

Captive elephants are also found in most temples and devalayas. The clergy however is divided on the matter. In his comments, Ven. Elle Gunawansa Thera said that people of yesteryear treasured certain things that were around them. “These treasures included land, water, forests and elephants too were treasured beings. But ultimately people have encroached elephants’ habitats and now both elephants and people are victims of the Human-Elephant conflict.”
“However when it comes to the matter of captive elephants the situation is different. The Dalada Perahera for instance is an important event in the religious and cultural calendars of our country. It has attracted tourists and generates a lot of foreign income during the perahera period. It is the elephants that add glamour to the event. But having said that, I’m not satisfied with the procedure in which those captive elephants were released recently.”

"It clearly states that the Committee should suggest or recommend any action. However the gazette will be discussed in Parliament and certain amendments will be made  -Wimalaweera Dissanayake"

Bad example on judiciary: Ven. Ananda Sagara Thera

“It is not that we are against peraheras,” claimed Ven. Pahiyangala Ananda Sagara thera. “Therefore temples and religious places need elephants. So what we suggest is that they could limit the number of elephants used for peraheras. It is only when the quantity is big that people opt for smuggling and illegal rackets. On the other hand elephants should be owned or held under the custody of the state. They shouldn’t be registered for individual ownership. This way elephants will be kept at the Pinnawela Elephant Orphanage for instance where there will be professional handlers to take care of them and they will be very well looked after.”

“The one-man Committee report submitted by retired Supreme Court Judge Nimal Edward Dissanayake revealed that the reproduction process is hindered when an elephant is domesticated. Therefore their breeding habits will be affected and it will affect generations of elephants. The Wildlife Conservation Department needs to intervene in this matter.”

Ven. Ananda Sagara Thera further said that elephants are sensitive beings and when a baby is separated from the mother the mother elephant goes on a rampage. “In order to avoid this most babies are taken away after killing the mother. This is a heinous act. The release of these elephants back to their illegal captors sets a very bad example on the judiciary of this country.”

No such provisions in new gazette: Wildlife State Minister 

The new gazette was signed by State Minister of Wildlife Protection, Adoption of Safety Measures including the Construction of Electric Fences and Trenches and Reforestation and Forest Resource Development Wimalaweera Dissanayake. However, when asked about AG’s directions to release the elephants Minister Dissanayake said that although he signed the new gazette on captive elephants it didn’t have any clauses to favour the release of these elephants. “It clearly states that the Committee should suggest or recommend any action. However the gazette will be discussed in Parliament and certain amendments will 
be made.”