By Rukshan Jayewardene

Not long after the dust had settled following the government’s long war with Tamil separatism and terror, news filtered in of the kidnapping of baby elephants from the wild. Some dry zone national parks and other wilderness areas that were home to herds of wild elephants had been targeted by organized gangs often in the dead of night. They captured babies by killing mothers who resisted and perhaps other cow elephants in the tight-knit families that they live in. There were even a few eyewitness accounts of captured baby elephants being transported en route to urban destinations.

There was also information coming in of baby elephants tethered in domestic backyards and temple premises in urban areas, where they had never been seen (or heard) before. There was also the forcible removal of two baby tuskers that had been born in the Pinnawela elephant orphanage by the Diyawadana Nilame of the temple of the tooth in Kandy. He is the lay Buddhist who holds the highest ceremonial office in the land. A man who still holds that office and has been linked to both the chief accused ‘Ali Roshan’ and the illegal trade in wild elephant babies. Some baby elephants were gifted to members of the most prominent political family in the country, key officials and even a judge who presided over elephant smuggling cases. Some were sold to prominent monks and others were alleged to have been sold for enormous sums of money equivalent to the price one would have to pay for luxury vehicles. This was a veritable “slave trade in elephants” as lawyer Ravindranath Dabare so aptly names it.

Several conservation organizations, animal rights groups and individuals involved in conservation, pushed the wildlife department and the minister of wildlife to move on the matter of confiscating suspect baby elephants that had been located. Due to government complicity, the culpability of a Director-General of the Department of Wildlife Conservation (DWC), as well as the corruption of a few officers, confiscations and arrests began in earnest only after a government change and new ministers and Director Generals had been appointed in 2015.

Up to a total of 38 elephants were confiscated over the next year or so and held in two government-run facilities, the Pinnawela elephant orphanage and the Elephant Transit Home in Udawalawe. These two facilities belong to two government departments under two ministries, namely, the Zoological Gardens Department and the DWC. Later on a few elephants confiscated ended up in the Zoo Department’s Ridiyagama Zoo in the Southern Province. All elephants held in these facilities however, belong to the State and the rightful legal custodian is the DWC and the lawful owners are the Sri Lankan public.

Legal action was initiated against some of the ring leaders of this elephant smuggling racket and some of the illegal owners. The main accused, a man known as ‘Ali Roshan’- a kingpin, was arrested and remanded. The confiscated elephants were productions in cases of stolen public property. Several suspect elephants and their erstwhile owners were under investigation by the Criminal Investigation Department or CID. Being in illegal possession of elephants is usually an unbailable offence as it involves public property. Furthermore, the Fauna and Flora Protection Ordinance had been violated. These investigations and cases dragged on for years due to objections and other delays.

Fast forward to a special gazette notification issued on August 21, 2021, and passed by the Cabinet of Ministers giving new guidelines for the welfare of captive elephants. The guidelines seem to have been hastily drawn up, but what becomes clear is that activities such as elephants used in logging, haulage of weights and in the tourism industry that carry people are all stipulated and regulated. Thereby it can be seen that certain discontinued practices and other uses of elephants were being revived and authorized. Even the specifics for the ‘Ankus’ a captive elephant control tool (made of steel, hafted to a wooden pole) recommended for use, the type of traditional knife and type of stick are mandated.

The Ankus is a pointed model no longer in use in other parts of the world due to the cruelty factor, and instead, a blunt rounded Ankus is used. This runs counter to the stated objectives of improving the welfare of elephants in captivity, and all above-stated activities were being inserted under the heading of ‘Historical and Cultural’  use. Even as animal welfare groups objected to this new set of captive elephant guidelines which looked like a load of eyewash, and hardly a week had passed, a court order released seven of the confiscated elephants back to illegal owners.

These two events barely weeks apart, can now be seen as being directly connected. A recommendation by the Attorney General as well as the said court order by Justice Prabhakaran of Colombo District Court #2 as well as a letter sent to the Director-General of the Zoo Department ordering her to release certain elephants to individuals who till then had been under investigation (whereby she complied and handed in her resignation soon after citing personal reasons). These legal actions are unprecedented. The court order dispenses with the investigations being carried on regarding these seven elephants and their alleged “owners”. These elephants that were in state custody were suddenly returned to so-called owners. This is a travesty of the judicial process, negating of the independence of the CID investigation and in not consulting the lawful authority for these elephants, the DWC that was present on the day, brings into question the very independence of the judiciary.

On September 16, this court order was challenged in the same court by lawyers representing an animal rights organization Rally for Animal Rights and Environment (RARE), an environmental organization Centre for Environmental Justice (CEJ) and the largest and oldest conservation organization in the country the Wildlife and Nature Protection Society (WNPS). Meanwhile, some of the elephants that were involved in these seven cases of elephant smuggling were trucked away by the alleged owners from Pinnawala elephant orphanage and the Ridiyagama open-plan zoo.

On September 16, the lawyers representing the organizations were shouted down by several lawyers representing the illegal elephant owners. About 20 lawyers were present to represent the alleged owners. However, Justice Prabhakaran who was presiding did not allow the lawyers representing conservation and animal rights organizations to intervene or even be heard. He had not taken notice of the Deputy Director General (veterinary) Dr. Tharaka Prasad of the DWC who had his hand up requesting to speak.

As the implications of the investigations being dismissed in this manner with elephants going back to the alleged owners, who in fact cannot show how they lawfully obtained them in the first place, is a serious development. It opens a door for the resumption of elephant kidnappings from the wild. It emboldens the smuggling ring, which is obviously active again.

As environmental lawyer Dr. Jagath Gunewardena sees it, the greatest danger from this new development in the elephant smuggling cases relates to the law and how it is applied and the wider implications beyond these elephant smuggling cases. He feels that when the law is not applied in an even-handed and proper manner as in this instance, people lose faith in legal recourse and the judiciary. People who lose faith in the judiciary can take the law into their own hands, which is a very serious development and a law and order issue. What remains for those who want to see justice done in this instance is to seek relief from higher courts such as the appellate court and Supreme Court of Sri Lanka.

The recent gazette allows for the registration of unregistered elephants in accordance with a three-month window provided for their registration which is in effect a moratorium where no questions will be asked about the origin of the elephant. Therefore, this can be seen as a green light for the resumption of the elephant kidnapping and smuggling racket of 2009-2015. In fact, there is some evidence that it may have already begun even before the extraordinary gazette notification of 2021 giving seemingly innocuous captive elephant guidelines. This is a sad and sordid tale and it is by no means over.

-This article was originally featured on groundview.org