Sep 03 2021. views 680
The debate on whether or not to keep elephants in captivity has continued for years but the practice only seems to be continuing with blessings from the political hierarchy. Earlier this year, the Maha Sangha as well as representatives of the Tamed Elephant Owners’ Association met with the President to draw his attention to the shortage of tamed elephants in Perahera ceremonies. As a result of this meeting, the President instructed officials to hold discussions with owners of tamed elephants in formulating conditions for the regulation and conservation of tamed elephants. Subsequently, on August 19, 2021, an extraordinary gazette on Protection, Wellbeing and Regularisation of Registration of Tamed Elephants Regulations No. 1 of 2021 was published. However, the animal rights fraternity has frowned upon several clauses which seem to be causing more harm than good for elephants, who ideally belong in the wild.
Upon their observation, several environmentalists have raised concerns over a few loosely drafted clauses. They allege that - Section 2 begins with the following clause ‘Every person who owns or has in custody an elephant. According to the existing legal framework, an elephant cannot have an individual owner as they come under Public Property.
Section 2(a) states that ‘reasonable steps using minimum force in keeping with traditional methods could be taken to control an elephant that behaves violently’. Legal experts have raised concerns over this clause as it looks like an attempt to justify a certain level of abuse and torture. Who would determine ‘minimum force’ and ‘unnecessary pain’ also remains doubtful.
Clauses on the transportation of elephants and engaging elephants in work have been written in a way that may inconvenience law enforcement authorities in executing the law.
Apart from cultural events, limitations have been imposed on using elephants for advertisements, tourism-related activities, carrying people etc. Even though they seem to be clauses drafted in favour of animal welfare, in reality, the gazette seems to be legalising some of these activities that are already considered illegal. Using elephants for tourism and other commercial activities in the pretext of keeping them in captivity for cultural events is a violation of the law but this gazette indirectly legalises such activities. The use of the bullhook and knife has also been made legal in this gazette.
An attempt to legalise illegal activities?
As mentioned in the new gazette, the Registration and Licensing of Tuskers and Elephants Regulations, 1991 published in the Gazette Extraordinary No. 662/4 of 14 May 1991 are hereby rescinded without prejudice to anything previously done thereunder. “As per Section 6 of the Interpretation Ordinance a court case pending under existing regulations should be concluded according to the legal framework at the time the case was filed,” opined environmental lawyer Dr Jagath Gunawardena.
“The pointed bullhook is an instrument of harm and torture. The traditional bull hook had a globular edge that added pressure to an elephant’s pressure points was more friendly. But now, this friendly instrument has been made illegal by this new gazette and the more damaging one has been legalised,” he added.
When asked about elephants having individual owners Dr Gunawardena said that elephants should come under the purview of the Zoological Gardens Department. A cabinet paper was also drafted in 2004 where it was suggested that male tuskers at the Pinnawela Elephant Orphanage could be trained and handed for peraheras without using domestic elephants. Other tourist promotion activities are illegal as per the FFPO. Therefore let them be in the custody of Pinnawela Orphanage and they will be cared for by vets and experienced keepers. This was my suggestion. We need to finish the practice of donating elephants to private parties. But there could be a compromise in instances where it is a family that has traditionally kept elephants. Having individual ownership of an elephant is contradicting the Constitution as well. A person can have custody under section 22A of the FFPO. It’s a travesty to own an elephant. Therefore some of these regulations are contradicting the legal process of the country.”
Gazette is an improvement if implemented
“The new gazette is an improvement of the previous gazette and there are some features that help elephants,” opined Asian elephant expert Jayantha Jayawardena. “These include registration of elephants, numbering etc. All this time the law has been there but not implemented. There could be another gazette that is better than this. We must remember that we have to work within a framework of politicisation. But while everybody is talking about the law a lot of people have lost sight of the key point; that the elephant needs to be benefitted. The new law provides for control.”
He further said that elephants can have a private owner and that tame elephants have been registered all this while. “At one point we wanted to microchip tame elephants so that they could be identified but this attempt was sabotaged. However, the new gazette is beneficial to elephants and it will be totally beneficial if it is implemented.”
More harm than good?
“Sri Lanka badly needs welfare regulations not just for elephants but for all animals. However these gazetted regulations do more harm to elephants than help,” opined Maneesha Arachchige, Rally for Animals Rights and Environment (RARE) Founder.
“The part 1 on ‘Regulations for Protection and wellbeing of tamed elephants’ are just loose and vague sentences without definitions and have no legal enforceability and it's clear that they were penned with the involvement of some who seek to exploit and profit from elephants” she alleged. “The use of such imprecise terminology leaves many of these regulations open to the cruellest of interpretations and effectively renders them useless. On the other hand, no penalties or punishments have been stipulated here,” she added.
However, she observes that the adopted language of the document changes when detailing the Regulations for “Regularising of registration of elephants” in Part 2 and “Regulations for giving elephants to temples” in part 3. “Here it is very precise that it becomes clear that almost any elephant is eligible for registration regardless of origin and regardless of an owner’s poor elephant husbandry history. The only barrier to this is that examination and recommendation committee.
As per her observations, she alleged that the new gazette will -
“So who was behind the draft of these regulations?” Arachchige questioned. “I think the video evidence of abuse of elephants of several devales and temples and many others is enough to understand that the Tame Elephant Owners Association has no interest in elephant welfare but of increasing the number of captive elephants and use them for commercial purposes. These regulations have negative impacts on both conservation and captive elephant welfare and there are many parts that contradict the FFPO and are illegal,” she alleged.
“Captive elephant industry is a violation of animal rights. Its cruel, inhumane and contradicts the teachings of Lord Buddha. True we had a culture of taking elephants in perahera for around 200 years. But we now know that in some instances it harms other sentient beings so we must make changes to culture and continue the perahera without elephants. If not when countries like the USA and UK are recognising elephants as legal persons and sentient we being Sri Lankans would have no place in the modern world that gives importance to the environment, conservation and animal rights.
Elephants are an endangered species and I always wonder why we are surprised to see an elephant being killed by human-elephant conflict when we very happily watch elephants being abused for our cultural celebrations,” Arachchige said in her concluding remarks.
The new gazette minimises cruelty towards elephants
Currently, there are around 150 domesticated elephants in Sri Lanka. “There’s a practical programme that has been implemented to look into the welfare of domesticated elephants,” said Tamed Elephant Owners Association President Nilanga Dela. “It is only the elephant owners who know about these methods and not animal rights activists. The new gazette has looked at minimising abuse and torture towards elephants to a greater extent.”
When asked about elephants such as Tikiri that were in a deteriorating condition but was still used in a perahera, Dela said the new gazette prohibits elephants above 60 years of age to be used in peraheras. “Prior to using an elephant in a perahera we will analyse their medical conditions which will be given by a qualified veterinary surgeon. Likewise, many areas have been covered in these regulations.”
“If you look at history, we have been using elephants in peraheras for a long time. In the past humans and elephants have coexisted and there have been religious events in which tamed elephants have been used. So those who are voicing concerns against the use of elephants in peraheras could be anti-Buddhist factions.”
Gazette subject to amendments
Even though I signed the new gazette it has to be taken up for discussion in Parliament,” opined State Minister of Wildlife Protection, Adoption of Safety measures including the Construction of Electric Fences and Trenches and Reforestation and Forest Resource Development Wimalaweera Dissanayake. “There are certain places that need amendments as it was drafted by a committee of officials from various departments. For example, it mentions using elephants for heavy work but since we are in the age of technology we could make use of machines to get this work done instead of elephants. So if there are criticisms we are ready to consider them.”
Photo Nisal Baduge