Insufficient Laws, Regulations Major Reasons Behind Trade
By Eunice Ruth
The illegal wildlife trade is considered one of the major threats to global biodiversity and the demand for captive elephants is high. Wild Asian elephants (Elephas maximus) are taken from the wild, often illegally, to maintain the captive populations due to the non- viability of captive breeding programmes.
Asian elephants have been highly valued by various cultures for use in religious and spiritual contexts as a draft animal, and more recently, as a tourist attraction. As a key species, they also play an important role in maintaining the regional forest structure. According to the IUCN Asian Elephant Specialist Group (2019) the largest population of Elephas maximus is found in Sri Lanka, after India.
The Convener of Biodiversity Conservation and Research Circle of Sri Lanka, Supun Lahiru Prakash, said they have done research regarding the illegal elephant trade in Sri Lanka and it was revealed that insufficient laws and regulations were the major reason behind the illegal trade. He said that along with a research team, they have documented 55 cases where elephants were illegally traded within the country. Nearly an equal number of male and female elephants were traded and more than 50% of them were juveniles, aged below five years. Significantly more elephants were found to be seized in 2014 and 2015 than in the other time periods combined. “Also, we have found some evidence of the illegal capture of wild elephants from wildlife-protected areas and state forests. Importantly, corrupt wildlife officers, involvement of politicians and other high-ranking personnel in the illegal wildlife trade, and the lack of active enforcement of wildlife laws were the major challenges in this trade.
Commenting on the wildlife trade, he said it is one of the most profitable multi-billion dollar enterprises, involving direct exploitation of wild plants, animals and other organisms. Wildlife trade operates at a global level, both legally with proper government and international licence and also through illicit means. Wildlife is traded for a variety of uses such as food, medicine, luxury goods, exotic pets, entertainment, spiritual and laboratory use. Meanwhile, possession of certain wildlife products may display social status, wealth, and affluence, he added. He also pointed out that the rarest species may incur great demand, high price and high-profit margins. In addition, the wildlife trade is a potential source for the spread of invasive species and disease-causing agents. Much of the illegal trade in wildlife tends to be associated with a number of charismatic and high-profile species and elephants fall into this category.
“The illicit trade of trapped Asian elephants is prominent in several nations in Asia, particularly in Thailand, Myanmar, Laos, India, and Sri Lanka.” According to the research article, “Illegal capture and internal trade of wild Asian elephants (Elephas maximus) in Sri Lanka”, it was revealed that 55 cases of suspected smuggled elephants were reported from Sri Lanka and among them, 46 had an identity with a name and 24 elephants were females while 23 were males, while the sex of eight elephants was not reported. Two were identified as elephant calves (less than a year old), 14 as juveniles (two to five-years -old), 29 as sub-adults (six–10 years old), four as adults (above 11 years old), and six were not aged.
The report further stated that some illegally captured Asian elephants (Elephas maximus) in Sri Lanka were male, juveniles seized in 2017 from the Monaragala District, a male, juvenile seized in 2014 from Gampaha District, a sub-adult seized in 2016 from the Monaragala District, a female, less than a-year-old calf seized in 2016 from the Monaragala District, another seized in 2014 from the Kurunegala District, a male, sub-adult seized in 2014 from the Colombo District. Of this amount only 33 elephants were registered while 17 were not registered, and three had State patent letters and no information was available for the remaining two elephants.
Currently, 39 criminal proceedings have been filed before 15 Magistrate Courts by the Department of Wildlife Conservation of Sri Lanka (DWC) and the CID. The DWC and CID instituted 39 criminal proceedings before 15 Magistrate Courts against suspects involved in the illegal elephant trade in Sri Lanka. These suspected smuggled elephants were seized by authorised institutions and kept at the Pinnawala Elephant Orphanage or Elephant Transit Home, Udawalawe. Three were considered as smuggled elephants, according to the Auditor General’s Department observation, 10 were considered smuggled elephants as irregularities were found in the registration documents during CID investigations, and 11 were smuggled elephants, according to the Auditor General’s Department observation.
Furthermore, the CID was investigating five other cases, but elephants were not yet seized. “Moreover, six licences were found without the existence of elephants which may indicate plans for future smuggling activities. Therefore, it is clear that a minimum of 55 and possibly more elephants have been illegally captured from the wild in Sri Lanka during the period between January 2008 and December 2018, and also it is expected that it could have increased in the past years.
Meanwhile, Prakash further said the difference between the reported age in the registration documents and the estimated age of elephants by the veterinarians of the DWC suggest certain irregularities in the elephant registration process. We found information about potential corruption at the DWC from reports of committees appointed by the line Ministry of Wildlife Conservation between 2014 and 2018 and queries of information for clarification made by the Auditor General’s Department to investigate the illegal live wild elephant trade.
The Auditor General’s Report included the fraudulent registration of elephants by tendering false and forged documents regarding the birth of elephant calves and matters in respect to the mother elephants, entering false minutes in files and altering entries and replacing photographs in older files. Original entries were erased and new entries were typed over these erasures. Photographs of elephants in the older files have been removed and these were replaced by new photographs of other elephants. To facilitate the fraudulent registrations and issues of licensing, corrupt officers at the DWC have maintained files without elephants and files where elephants have been reported dead without closing or revoking the said files.
Corruption behind illegal wild elephant trade in Sri Lanka
While speaking about corruption behind the suspected illegal elephant trade, Prakash said government officials responsible for elephant conservation in Sri Lanka, under the influence of political pressure or influenced by bribery avoid making an honest attempt to combat this illegal trade of wild elephants or offer only limited resistance. On several occasions, attempts were made to release the suspected smuggled elephants to the offenders with only minor penalties. As a result, the DWC and the Police have launched several investigations into elephant smuggling since 2014. This has also led to protests by the public and environmental activists against this illegal trade.
Legal Protection for wild Asian elephants in Sri Lanka
Elephants are mainly protected by three Acts of legislation and two other Acts could also be used in combating the illegal live wild elephant trade in Sri Lanka, the authority for which has been delegated to two government Institutions. There is no legal provision given for any private entity to capture elephants from the wild for any reason in any circumstances without prior permission granted by the Director-General of DWC. The Constitution provides for the protection of nature. According to Article 27(14) of the Constitution, the State shall protect, preserve, and improve the environment for the benefit of the community. Wild elephants are a part of nature; therefore, the State bears the responsibility of protecting them. Other than that, the Prevention of Cruelty to Animals Ordinance No.13 of 1907 and Fauna and Flora Protection Ordinance No. 2 of 1937 (FFPO) provide more legislative provisions to combat illegal live wild elephant smuggling in the country.
Speaking to the Environmental Lawyer and activist Jagath Gunawardana, noted that, according to the provisions of FFPO elephants have been provided with the greatest legal protection under the provisions. However, for the past two decades the DWC has not provided with any legal licence or permit to capture or translocate elephants. All wild animals including the elephants belong to the State and no private individual can become the owner for an elephant or trade it, he added. All offences against elephants are punishable offences, where a person who has committed or in a process of committing a offence against the law can be arrested without a warrant.
The most relevant law is the FFPO as amended by Act No. 49 of 1993 and Act No. 22 of 2009 deal with both wild and domestic elephants. DWC was established and charged with management and implementation of the Fauna and Flora Protection (Amendment) Act, No.22 of 2009. In view of provisions in Section 22A (12) of the last amendment in 2009 any elephant which has not been registered under the provision of the FFPO shall be presumed to have been taken or removed from the wild without lawful authority or approval and such elephants shall be deemed to be public property. The provisions of the Offences against Public Property Act, No. 12 of 1982 shall accordingly apply in respect of such elephants. Furthermore, any offence committed under the Act involving an elephant shall be a non-bailable offence, and the provisions of the Bail Act, No. 30 of 1997 and the Code of Criminal Procedure Act, No. 15 of 1979 shall apply in respect of such an offence (DWC 2017).
Prevention of Cruelty to Animals Ordinance No.13 of 1907 made better provisions for the prevention of cruelty to all animals and these provisions can be used to protect elephants found in captivity suffering pain due to starvation, mutilation, or other ill-treatment. The Penal Code (Amendment) Act No. 29 of 1998 is also important as there is increasing evidence of false documents being used to smuggle elephants and obtaining licences.
In addition to national protection, international protection against live elephant trade is afforded by The Convention on International Trade-in Endangered Species of Wild Fauna and Flora (CITES) is a multinational agreement to which countries voluntarily join. The aim of CITES is to ensure that legal international trade does not endanger the survival of wild plants or animals. A permit system is a primary mechanism by which wildlife trade is regulated through CITES.
Asian Elephants have been listed in Appendix I of CITES since its inception in 1975, generally prohibiting international trade in wild individuals and their derivatives except in exceptional circumstances. Article III.3.c of CITES allows trade-in an Appendix I species if “a Management Authority of the State that imports is satisfied that the specimen is not to be used for primarily commercial purposes”. Therefore, the international trade of elephants does occur on a small but regular basis in the zoo trade. Sri Lanka has been a member of CITES since 1979 (CITES 2014).
However, transactions of live wild elephant trade in Sri Lanka appear not to have included cross-border trade, and therefore CITES is unable to be used as an effective mechanism to curb this type of trade.
Recommendations for improved conservation and management
Meanwhile, he further added that the relevant authorities and government bodies need to speed up the judicial process against suspects and penalise offenders who have engaged in smuggling. DWC officers are either directly or indirectly involved in the trade, assisting the smuggling rackets, and for this, immediate legal or disciplinary action should be taken, and any measure taken should be made public to prevent further illegal trades in the future.
“A national policy on captive elephants which introduces a scientific and transparent process regarding the registration and renewal of licences to hold captive elephants should be made. This should lead to a limit on the use of captive elephants for cultural, religious, and tourism purposes. We urge the authorities responsible for the welfare and conservation of Asian elephants in Sri Lanka to adopt standard captive elephant registration protocols and best practices proposed by the 17th Conference of Parties of CITES in 2016 and the second Asian Elephant Range States’ meeting in 2017, where these guidelines include DNA registration, monitoring protocols for captive populations, guidelines for the management and the welfare of captive elephants, disease management including zoonotic diseases, training and capacity building of staff and mahouts, and specific national policy to manage the captive elephant population to avoid the illicit live elephant trade. These new protocols may discourage the malpractices associated with the illegal trade of wild Asian elephants and secure the welfare of captive Asian elephants in Sri Lanka,” said Prakash.