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Multiple legal actions are being prepared to challenge the government’s move to effectively legitimise the keeping of elephants allegedly seized from the wild, and the two court decisions that shore up that move.

The Attorney-General’s Department this week defended the two controversial decisions by the Colombo Magistrate Court to release 14 elephants from government care and give them back to the parties from whom they were seized.

Freedom lost: Shackled Bhanu being forcefully loaded into the truck, while the mahout with goad in hand tugs its tail (left). Pix by Rahul Samantha Hettiarachchi

The government is facing protests from environmental groups and senior lawyers, including several President’s Counsel, that the Colombo Magistrate’s final order of September 6 regarding the release of elephants was erroneous and should be set aside.

The magistrate made the order following submissions that a government gazette issued last month allowed time and provisions for the owners, or “caretakers”, to legally register the animals.

Deputy Solicitor-General Dilan Ratnayake with Senior State Counsel Kanishka de Silva Balapatabendi and State Counsel Madubashini Sri Meththa for the Attorney-General said the order had been made in accordance with the provisions of the Criminal Procedure Code and therefore was “a legally sound order that does not warrant interference”.

The 14 elephants at the heart of the legal furore are among 39 elephants that had been seized from the hands of their owners because the authorities had not been satisfied that the owners had valid registration papers for the animals.

The elephants have been living for the past few years in the care of government authorities at the Pinnawela Elephant Orphanage.

The former director-general of the Zoological Department, Ishini Wickremasinghe, who resigned from her post in protest against the court order and gazette notice, posted videos of the 14 elephants being taken away from their haven in Pinnawela.

In one social media post she wrote, “After nearly five years of freedom, Bhanu has been handed over to his captors. Have we, as a nation forgotten the tenets of Buddhism – Ahimsa and Karuna? How can we cause the needless suffering of these innocent animals and claim that it is justified in the name of Buddhism?”

The Director-General of Wildlife Conservation, Chandana Suriyabandara, told the Sunday Times his officers had to hand over the animals from Pinnawela in accordance with the court ruling.

He said no applications to register the ownership of the elephants had been made to date as the applicants had to be approved by a ministerial committee.

The Centre for Environmental Justice (CEJ) said it has filed a writ in the Court of Appeal for an order to return the 14 elephants to government care.

CEJ Chairman Ravindranath Dabare said his organisation is preparing documents for an appeal to review the Magistrate Court orders and will also challenge the gazette notice issued on August 19.

Gazette No. 2241/41 has been widely criticised not only for its use in assisting private owners to retrospectively legitimise their ownership of elephants seized from the wild and held without valid registration papers, but also for, in future, allowing captive elephants to be used for commercial purposes such as logging and being used for rides.

Mr. Dabare added environmentalists are also prepared to file individual cases against officials of the Attorney-General’s Department and the Department of Criminal Investigations for allegedly misleading the court.

Environmental lawyer Jagath Gunawardena said the gazette and the process of handing back the elephants to their captors were against the principles of equality before the law and the rule of law.   He said these alleged offences went beyond environmental issues to pose “a direct challenge to the principles of equality before the law and the rule of law in this country”.

He pointed out that according to the Fauna and Flora Protection Ordinance the use of any wild animals for commercial purposes was prohibited and that the gazette contradicted this.

Mr. Gunawardena added that the gazette was signed by a state minister and that but such regulations must be represented by cabinet ministers.

“Therefore, this regulation is contrary to the ordinance and also bad in law,” he said.

Meanwhile, the former president of the Young Zoologists Association, Parami Vidiyaratna, has launched a campaign to expose the cruel treatment of elephants being tamed.

He posted video clips of a tusker who was tied from real and front limb being repeatedly jabbed with a goad by an angry mahout. The tusker was identified as Raju, one of the elephants belonging to the Temple of the Sacred Tooth and currently held at a temple belonging to the Asgiri Vihara.

Environmentalist Supun Lahiru Prakash from the Biodiversity Research Circle said captive elephants were genetically and ecologically dead animals.

He pointed out that elephants in the wild roam free, procreate and provide ecological services throughout their lives, as a keystone animal species they shape the area they live in, they disperse seeds, knock down old trees and allow new growth of plants.

“When an elephant is removed from the habitat, all these actions cease,” he said.