LEGAL
AN HISTORIC DAY FOR ELEPHANTS
Sri Lanka's second highest court, the Court of Appeals recognised the rights and sentientness of elephants on 24.11.2022 marking a great mile stone in not only Sri Lanka's Animal Rights Movement but of the entire world.
In pronouncing the order, the Court of Appeals observed, that the property related to the Magistrate Court Case and even to the Court of Appeals case is NOT PROPERTY of normal nature and that THEY ARE LIVING BEINGS. And the ELEPHANTS CANNOT BE TREATED AS OTHER PROPERTY in the court cases.
The Court of Appeals also HELD that THE ELEPHANTS' RIGHTS also have to be looked into and as ELEPHANTS DONT HAVE A VOICE TO RAISE THEIR GRIEVANCES, it should be the DUTY OF THE COURT OF APPEALS to look into their grievances, because all the 4 cases before the court of appeals are related to the TORTURE AND ABUSE OF ELEPHANTS & ILLEGAL CAPTURE.
Therefore the Court of Appeals, while pronouncing it’s order, specifically stated that it is the duty of the court of appeals to take these matters also into consideration in issuing the order and directed the registrar of the magistrate court not to carry out the order pronounced by the learned Chief Magistrate of Colombo that morning.
ABUSED AND WOUNDED ELEPHANT KALANA
The Petitioners are Centre for Environmental Justice, Withanage Don Hemantha, Ranjith Sisira Kumara, Pathragoda Kankanamge Dilena, Panchali Madurangi Panapitiya, Maheshi Nalinka Munasinghe and Wadduwage Visakha Perera.
Panchali Panapitiya is Founder/ Executive Director RARE and Mahehsi Nalinka Munasinghe is a Director of RARE. Visaka is AWT Secretary and Hemantha and Dilena are directors of CEJ.
This case was filed on 21st of September 2021 to challenge the Gazette Extraordinary No. 2241/41 dated 19.08.2021 and its Regulations No. 01 of 2021 cited as “Fauna and Flora (Protection, Well-Being, and Regularization of Registration of Tamed Elephants)” published under Section 22A of the Fauna and Flora Protection Ordinance (FFPO). This Regulation has shrewdly permitted elephants to be used in commercial activities, hence, a blatant violation of the FFPO. Also, on or about 3rd September 2021, Learned Additional Magistrate of Colombo and Learned Magistrate of Matale had ordered the Director General of National Zoological Gardens to release elephants that were in the custody as productions, in Cases bearing Nos. B 23073/01/15 and B 941/14, respectively back to their so-called owners, upon the consideration of an application made by Officer-in-Charge of the Unit 01 of the Criminal Investigation Department with reference to Gazette Extraordinary No. 2241/41.
The petitioners state that the release of elephants based on the gazette notification No.2241/41 was illegal and that there is no right of releasing the elephant Sujeewa and Calf to be released as ordered by the court based on it. Therefore, the petitioners challenge both the Gazette and the orders made under the same in this case.
The Respondents of this case are Hon. Wimalaweera Dissanayake State Minister of Wildlife Protection, Adoption of Safety Measures including the Construction of Electrical Fences and Trenches, and Reforestation and Forest Resource Development, Chandana Sooriyabandara Director General of Department of Wildlife Conservation, Director General of Department of National Zoological Gardens, Officer-in-Charge in Unit 01 of Criminal Investigation Department, C. D Wickramaratne Inspector General of Police, Hon. S.Prabakaran Additional Magistrate of Colombo Magistrate Court, Hon. C. Wickramanayake The Magistrate of Matale and the Attorney General.
22.09.2021
As this case was filed under the grounds of urgency on 21st September, it was taken up and supported in the Court of Appeal on 22nd September 2021. On this day, the court observed that passing on the custody of Sujeewa elephant and her calf involved in this case to their original owners should not be done at this time. Accordingly, the Court of Appeal further directed the Registrar of the Colombo Magistrate’s Court to inform the Registrar of the Court of Appeal regarding these observations.
29.09.2021 Again, this case was taken up on 29th September 2021 and the Hon. Court issued an order to further retain “Sujeewa” and her calf under the Department of Wildlife Conservation and not to register any of the 14 elephants released by the magistrate courts until further notice. Also, the court decided to include several parties claiming to be the private owners of the elephants filed requests to intervene in the case while notifying the petitioners to submit any objections which they may have within 02 weeks of time. Next date is fixed for mention on 13th October and support on 13 November 2021.
21.11.2022 Counsels for the petitioners brought to the notice of the Court of Appeals that despite an interim order given on 29.09.2021 preventing the registration of the subject case 38 elephants, the Department of Wildlife Conservation has released the elephants into the custody of parties whom they were seized from without consent of the court of appeals.
Petitioners further submitted evidence of torture and abuse inflicted on some of the already released elephants.
Thereupon Justice Sobitha Rajakaruna ordered the Attorney General to produce the details of elephants that were released subsequent to the interim order given on the next hearing of the case to be held on 24.11.2022.
In 2019 -2020 a law suit in collaboration with Animal Welfare Trust ensured abused and critically injured captive elephant Kalana from being returned back to his abusive temple and retirement at Ridiyagama Safari Park.
Law suit in process at Supreme Court of Sri Lanka in collaboration with Centre For Environment Justice. FR 109/2021 filed by Centre For Environment Justice, directors of Centre For Environment Justice Hemantha Withanage, Sanjaya Edirisinghe, Directors of RARE Panchali Panapitiya and Manoja Weerakkody Against Fundamental Rights Violation by the cabinet paper passed by cabinet of ministers of Sri Lanka on 15.03.2021 which authorised withdrawing investigations and legal action on elephant smugglers and releasing illegal elephant calves back to suspects.
Law suit in process at the Court of Appeals in Sri Lanka in collaboration with Centre For Environment Justice and Animal Welfare Trust. WRIT Application CA WRT 423/21 filed by RARE directors Panchali Panapitiya, Maheshi Nanayakkara, Centre for Environmental Justice and Centre for Environmental Justice directors Dilena Pathragoda and Hemantha Withanage trustee of Animal Welfare Trust Vishaka Thillekerathne challenging the extraordinary gazette notification “Regulations on welfare and regularisation of registration of tamed elephants” issued by Government of Sri Lanka
GAZETTE ON “REGULATIONS FOR TAME ELEPHANT WELFARE & REGULARISATION OF REGISTRATION”
CA/WRIT/423
ELEPHANT SMUGGLING
At 9.30 AM, at a magistrate court case related to elephant smuggling, as requested by Attorney General of Sri Lanka, the Magistrate of Colombo issued an order releasing all the remaining elephants suspected as wild captured victims to individuals that were suspected of keeping them illegally, and also refused the entertaining of intervention of parties like animal rights activists, conservation organisation or lawyers into this case.There are 4 public interest WRIT applications filed at the court of appeals with regards to the gazette on "Regulations on Tame elephant welfare & regularisation of registration”, CA/WRIT/423 is represented by Senior Counsel Ravindaranath Dabare, and other WRITS are represented by Presidential Counsel Sanjeewa Jayawardena & Romesh De Silva and Uditha Egalahewa. At 10.30 am on 24.11.2022 when these cases were brought up in the court of appeals, the 4 petitioners adverted the Magistrate Court order issued.
If the remaining elephants were released, the prayers and the petitions in the court of appeal will be rendered nugatory and the relief also will be rendered nugatory because there will be no elephants left in the custody of the government.
After listening to the submissions made on behalf of the 4 cases filed in the Court of Appeals, the court of appeals directed the register of the Magistrate Court, not to implement the orders issued by the learned Magistrate, and also directed officials of the Department of Wildlife Conservation not to adhere to the orders issued by the learned Magistrate of Colombo half an hour ago that day at 10.00 am.
Especially in pronouncing the order, the Court of Appeals observed, that the property related to the Magistrate Court Case and even to the Court of Appeals case is NOT PROPERTY of normal nature and that THEY ARE LIVING BEINGS. And the ELEPHANTS CANNOT BE TREATED AS OTHER PROPERTY in the court cases.
The Court of Appeals also HELD that THE ELEPHANTS' RIGHTS also have to be looked into and as ELEPHANTS DONT HAVE A VOICE TO RAISE THEIR GRIEVANCES, it should be the DUTY OF THE COURT OF APPEALS to look into their grievances, because all the 4 cases before the court of appeals are related to the TORTURE AND ABUSE OF ELEPHANTS & ILLEGAL CAPTURE.
Therefore the Court of Appeals, while pronouncing it’s order, specifically stated that it is the duty of the court of appeals to take these matters also into consideration in issuing the order and directed the registrar of the magistrate court not to carry out the order pronounced by the learned Chief Magistrate of Colombo that morning.
Court of Appeals ordered Colombo High Court Registrar to submit the Elephant Registration Book to court within 10 days from 02.12.2022.
“The greatness of a nation and its moral progress can be judged by the way its animals are treated.”
- Mahatma Gandhi -