Jumbo in the Supreme Court

An elephant has been taken to court, not just any court but the highest in the land, the Supreme Court. Asokamala, born and bred at the Pinnawela Elephant Orphanage, has kicked up dust being in the centre of a controversy over whether she should be “exported” as a gift from Sri Lanka to Armenia.

While animal rights activists battle the authorities in the Supreme Court, in a fundamental rights case, Asokamala, oblivious to being in the eye of the storm is following her routine. Her fate will be decided in February next year.

However, conservationists and animal lovers see Asokamala as just the dot on the bigger picture of elephant export and The Sunday Times decided to probe what procedures are followed when gifting or exchanging elephants, considered national treasures in this country and accorded the honour of carrying the Karanduwa with the Sacred Tooth Relic of Lord Buddha in the Kandy Dalada Perahera.

For obvious reasons, no wild elephant can be exported. “Only elephants which have been born and bred in captivity are exported,” said an official who declined to be identified, explaining that a wild elephant which has been saved from some danger in the wild and is kept in captivity will never be able to adjust to an environment elsewhere.

The elephant is not only a protected animal in Sri Lanka but comes under Appendix 1 of the Convention on International Trade of Endangered Species (CITES) of Animals and Plants, The Sunday Times learns.

“This not only means that you cannot trade in elephants but also that you cannot even trade in items such as ivory or any other part of an elephant,” stresses environmental lawyer Jagath Gunawardena. There is also a pre-condition for the export in the form of a gift or an exchange of any animal listed under Appendix 1. The authority in any country which has the mandate under CITES must be satisfied that the conditions and facilities in the recipient country are adequate for the maintenance, upkeep and wellbeing of the animal, he said. In Sri Lanka, the authority which has CITES mandate is the Department of Wildlife Conservation (DWLC).

In Sri Lanka, according to Mr. Gunawardena, a special permit is also required under the Fauna and Flora Protection Ordinance (Section 19 Subsection 2) to export an elephant. Although on what grounds the special permit can be issued is not specified, he says, both these requirements have to be met.

While many animal rights activists pointed out that these requirements are not met when elephants are sent as “diplomatic gifts” on the whim of politicians, Sports and Public Recreation Minister Gamini Lokuge was adamant that in the case of Asokamala everything was done according to procedure. The request came from the Armenian Head of State to the Sri Lankan Head of State, was passed through the Foreign Ministry to his ministry, he said, and all required reports were got by the relevant authorities from the departments in Armenia and the relevant departments such as the DWLC in Sri Lanka, before it was submitted by his ministry for Cabinet approval.

Animal rights activists see as a major problem the very fact of the National Zoological Gardens and Pinnawela, where captive elephants of the state are being housed, coming under the Sports and Public Recreation Ministry rather than the Environment Ministry.“The zoo and places like Pinnawela should be under the Ministry of Environment,” says Mr. Gunawardena because their rightful role is to promote ex-situ conservation of animals on the red list of endangered species, promote research and also educate people. “But both the zoo and Pinnawela are just being used as tourist attractions to make money,” he said.

Taking the particular case of Asokamala, the Chairperson of the Society for the Protection of Animal Rights, Penny Jayewardene voices concern. “Is the Sports and Public Recreation Ministry qualified to judge the needs of animals such as elephants – what is the expertise they have,” she asks, adding that it is the first time that animal rights through Asokamala have been taken up in the Supreme Court and taken up as a fundamental rights case.

“We, the people of Sri Lanka own these animals. We have a right to know about their welfare and see that they are treated well, safeguarding their rights,” she says, adding that Yerevan Zoo has a bad record, two elephant deaths already. “One had been shot and the other had died of hypothermia due to malnutrition.”

Asokamala will have to live in a concrete box. Armenia has very cold winters and Asokamala is a tropical animal. Is it right to translocate her in a cold climate, echoes animal activist Ravi Jayewardene stressing that Sri Lankan elephants are a unique sub-species.

He compares and contrasts Pinnawela to the elephant shed at Yerevan Zoo. One is like being under ‘house arrest’ and the other in ‘solitary confinement’. Although Asokamala was born in captivity she lives in an open area at Pinnawela, walking on grass under the blue skies with food such as kitul and kos leaves. Under house arrest, the detainee has all the comforts and facilities. But Yerevan will be solitary confinement with all its hardships, the harsh climate and a concrete box. It will be cold and dreary. What will be her fodder?

The Sunday Times understands that elephants need to walk and zoos are found to be unsuitable places for them as their foot pads get thick and crack if they don’t walk enough, and foot rot can set in, with snow aggravating the problem. Adds environmental lawyer Gunawardena: “Male elephants are loners but females are herders. So when they are isolated there could be deviant behaviour due to stress and this brings us back to the question of who ensures the maintenance and wellbeing of an animal as mandatorily required by CITES.”

Didn’t you see all the letters from the Armenian government denying all the allegations made here, Minister Lokuge asked The Sunday Times, while another official source who refused to be identified said that the first requirement for the export of an elephant was that the authority mandated under CITES in the recipient country must initially secure a CITES import permit for the animal.“All requirements have been checked out there,” was the answer of the official when The Sunday Times asked whether Asokamala would be able to bear the winter.

Refuting claims by animal rights activists that there was a confectioner involved in the deal to “gift” Asokamala to Armenia, Minister Lokuge went on to explain that they already have a bull elephant reported to be the offspring of an elephant gifted to Russia by Sri Lanka in the past. “That’s why they wanted a Sri Lanka elephant,” he said adding that talk of heavy winters were not true because the elephant would be living close to the Iranian border which was quite warm.

However, this what an internet search discloses as recorded by Wikipedia: “Winters (in Armenia) are quite cold with plenty of snow, with temperatures ranging between -5° and -10°C. Winter sports enthusiasts enjoy skiing down the hills of Tsakhkadzor, located thirty minutes outside Yerevan.” About the two elephant deaths in Armenia, the Minister claimed the Armenian authorities had said that the animals were killed during unrest in the country.

With charges and counter-charges being thrown back and forth, the vital question that needs to be looked at is whether there is strict procedure, followed diligently by the relevant authorities with the required technical expertise, in making a decision to gift an elephant to another country. What also of follow-up action – do the Sri Lankan authorities keep track of the welfare of these elephants gifted over the years, or are they abandoned like nobody’s children?

Does the Cabinet of Ministers decide on some flimsy request to send an elephant or does it make an informed decision after seeking the advice of experts? If the animal is sent as a special gift to a world-class zoo in a country with strong links with Sri Lanka, where it will be looked after animal rights activists see no problem.

Usually on the export of an elephant, there must be justification first, then a decision and finally the announcement, says lawyer Gunawardena. “But unfortunately we seem to be doing it the other way round – deciding first, then announcing it and finally justifying it.” With indications that there is another request for the “gift” of two more elephants by a diplomat to a Eurasian country, a neighbour of Armenia, which The Sunday Times was unable to verify as officials were tightlipped, shouldn’t there be clear guidelines to stop elephants from being shipped or airlifted out of the country at the whim of politicians who are in power one day and out the next day.

If there are no guidelines, it bodes ill for the captive elephants at Pinnawela.