Jumbo rights go to court

By Hiranthi Fernando

No more can elephants be treated like chattels. They have rights too and for the first time in Sri Lanka, the Court of Appeal has focused on this vital issue. A landmark settlement was reached on October 27, on the rights of elephants with regard to their sale, lease or custody.

The petitioner Sagarica Rajakarunanayake, President of "Sathva Mithra", challenged the controversial public auction of elephant Raja, from the National Zoological Gardens. She sought a writ from court to squash the auction on the grounds that the Director of the Zoological Gardens acted with injustice and lack of concern for the welfare of the animal and neglected his obligation to ensure the safety of both the animal and the public.

Counsel Lalanath de Silva who appeared for the petitioner explained the background that led to the court action. "When Raja killed a mahout at the Zoo, he was confined. We think he was ill- treated," he said. Then Raja killed a second mahout and the Director decided to get rid of him. He advertised in the newspapers and held a public auction, giving very little time in between. Though Mrs. Rajakarunanayake protested, they went ahead and held the auction. Anyone who could buy a ticket for Rs.250 could bid for Raja. Mrs.Rajakaruna-nayake herself bought a ticket and attended the auction. When she objected at the manner in which it was being held, she was removed by security personnel. The elephant was sold to Nilanga Dela for around Rs. 900,000.

A day or two later, when Raja was to be taken to his new home, he would not budge. The authorities had to get his mate to lure him onto the vehicle. Later the mate was taken away.

"I failed to stop the auction before it happened," Mrs.Rajakarunanayake said. "I could not find a lawyer who would fight the case until I approached Lalanath. He gave me the guidance and inspiration to fight it."

"The law has come a long way since the time animals were treated like chairs and tables," Counsel de Silva said. "Around the world, there have been many judgments recognising the rights of animals."He quoted an article written in 1972, by Professor Christopher Stone titled "Should Trees have Standards?", where it is argued that trees and animals must have a right to come to court to enforce their rights.

Pointing out that the law recognises that inanimate objects, like a ship, can sue and be sued in its own name, Prof. Stone's argument was why it should not apply to animals and trees which are living things.

Prof. Stone's article had been referred to in an interesting judgment by the famous Justice Douglas of the United States Supreme Court about 15 years ago. He had written that it was time the courts allowed animals and other natural objects to bring cases in their own name. Subsequently, there have been many judgments that animals can bring cases in their own name, with human beings acting on their behalf. Animal rights activists throughout the world are seeking legal remedies on behalf of animals.

According to Mr. de Silva, this case was filed in the Court of Appeal, last March, on behalf of Mrs.Rajakarunanayake and the Sathva Mithra Association. The respondents were the Zoo Director, buyer Mr. Dela and the Attorney General. "We filed it on the grounds that the Director, because he is in charge, has an obligation to care for animals whether they are in the Zoo or outside," Mr de Silva said. "When he sold Raja by public auction, he failed in his duty, because anyone could have bought the animal. The basis of our case was that even if the Director wanted to sell the elephant, he should have done so to people who could care for the animal and ensure the safety of the public. We said there should be conditions for pre-qualification to make sure those bidding had the financial and other wherewithal to care for the animal, provide its food and also a proper keeper to look after it and care for its health. Second, it would be necessary for the buyer to have sufficient resources to ensure public safety."

Since the elephant had been sold by the time the case was brought to court, the petitioner asked for a writ to nullify the sale and get it back to the zoo. The Director and the buyer filed objections. While the case was pending, on the suggestion of the presiding judges, the two parties came to a settlement.

In the settlement, which is the first of its kind in the country, the Director agreed that all future disposal of elephants from institutions under his control shall be done only on the basis of two pre-qualifications. To be eligible to bid for the purchase or lease of elephants, the bidders must establish they have adequate financial resources to support the elephant. They should also have an adequate extent of land to keep such an elephant. The quantum of resources and extent of land would be determined by the Director.

Following the agreement, with court permission, Mrs. Rajakarunanayake along with a veterinary surgeon inspected Rajah. Since it was found that the animal was in good health under its new owner, the application for a writ was withdrawn.

The Attorney for the petitioner stressed that a violation of the settlement would amount to contempt of court. Unless it is ensured that the bidders satisfy the pre-qualifications, the public can stop the sale. There have to be uniform criteria specified as pre-qualifications, which must be open to scrutiny.

"We believe that this settlement can be extended to other animals," Mrs. Rajakarunana-yake said. "At a later stage, it can also be applied to wild animals captured from the jungle. By this settlement, we will save the habitat for the species. What we have achieved can therefore have an expanded meaning."

The Director of the Zoological Gardens, Senarath Gunasena, when contacted said he was unable to comment since he had not been officially informed of the court decision. His Counsel, Senior State Counsel Adrian Perera however, confirmed the settlement reached. Mr. Perera said the clauses in the settlement had been suggested by the Director himself and had been accepted though the petitioner wanted more far-reaching conditions. Mr. Perera said the settlement only applied to elephants coming under the control of the Zoo Director and not to any other animal.

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