One of the burning issues that Sri Lanka has encountered during the recent past is the disposal of garbage, particularly in urban areas such as Colombo and its suburbs. However, unfortunately until the collapse of the garbage mountain at Meethotamulla on the Sinhala and Hindu New Year Festival day in 2017 the authorities do not seem to have realized the need to prevent such a disaster. This unfortunate incident resulted in the death and injury of a large number of innocent people and the destruction of their properties. Unlike the tsunami and the landslips in the hill country which were mainly due to natural causes, man made mishaps like the Meethotamulla disaster could have been prevented if the authorities exercised more care and complied with the relevant laws and regulations.
When the authorities go astray there are laws and mechanisms in Sri Lanka to put them back on the right track. These legal measures are threefold, namely, abatement or removal of nuisances caused, compensation to victims and prevention of future misdeeds. The creators of these problems including the government, provincial councils and local government authorities should not look upon the legal measures as interferences with their authority and resist them as the true intention is to assist them in the exercise of their power. Since the victims may not have the expertise or the resources to obtain legal remedies effectively the Bar Association of Sri Lanka under the guidance of its President U. R. De Silva considers it their duty to do so not only on behalf of the present victims but also for the benefit of future unborn generations.
The doctrine of separation of powers is enshrined in the Constitution of Sri Lanka according to which the legislative power is normally exercised by Parliament while the executive power is exercised by the President. However, the sovereignty is in the people and therefore the legislature and the executive are bound to exercise their respective powers in accordance with the procedure laid down in the Constitution. Any contravention of the said procedures may be challenged by the people in Courts of law.
Hence the Judiciary has an important role in ensuring that the peoples’ sovereignty is exercised in accordance with the law. Every lawyer in his capacity as officer of court should assist courts in the administration of justice.
The Bar Association of Sri Lanka is the official professional association of all lawyers of this country.
For this reason the BASL has a collective responsibility in assisting the courts in general and in matters of national importance such as the garbage issue in particular.
The Laws in place for this purpose
Sri Lankans have inherited a long history and a rich culture with noble values for the protection of the environment. Though not incorporated verbatim into the current environmental laws and regulations which are of recent origin such values have undoubtedly influenced and shaped the said laws and regulations. We, Sri Lankans, can be proud of the fact that Judge C. G. Weeramantry, a world-renowned Sri Lankan Judge and Vice President of the Apex World court, the International Court of Justice (ICJ), has applied Sri Lankan noble values in the solution of important international issues relating to the protection of the environment. In a landmark judgement of the International Court of Justice in the Danube River Basin Case between Hungary and Slovakia Judge C. G. Weeramantry adopted the principle enunciated by Arahat Mahinda in his admonition to King Devanampiya Tissa:
“O great king, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it.”
This sermon effectively conveys the message that since the King is not the owner of the land but only its trustee his duty is to protect and preserve it for the benefit of all living being. This kind of noble principle can be seen as the rationale behind the current laws and regulations too governing the environmental protection.
However, unfortunately the lack of respect for the environmental laws and regulations on the part of selfish individuals and institutions including pubic institutions motivated by their self-centred attitudes contribute to all sorts of environmental pollution. Consequently the need of the hour is to strengthen the enforcement mechanisms. The Bar Association of Sri Lanka is the most suitable institution for this purpose as it possesses the necessary expertise in order to assist court in the implementation of laws that aim at striking a balance between the needs of the present generation and those of the future unborn generations.
Responsibility for the disposal of garbage
The main responsibility for the removal of garbage or refuse in their local areas is with the local government authorities, namely, Municipal Councils, Urban Councils and Pradeshiya Sabhas. Section 131 of the Municipal Councils Ordinance provides for this obligation and there are corresponding provisions in section 120 of the Urban Councils Ordinance and section 95 of the Pradeshiya Sabha Act.
It is important to note that the framers of these statutory provisions were wise enough to envisage that the improper handling of garbage or refuse as they call it can cause nuisance. Therefore they have made it obligatory for the Municipal Councils, Urban Councils and Pradeshiya Sabhas to “take all such measures and precautions as may be necessary to ensure that no such refuse... it disposed of in such a way as to cause a nuisance”.
Nuisance may be private or public depending on the extent of its consequences. Private nuisance is a species of civil wrong which R. G. McKerron defines at page 227 of his work ‘Law of Delict’ as “any unreasonable user of land which injuriously affects the use or enjoyment of neighbouring land.” Public nuisance on the other hand is a criminal offence which section 261 of the Penal Code of Sri Lanka defines as:
“Any act or illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”
It appears that the Colombo Municipal Council has exercised its powers under section 131 of the Municipal Councils Ordinance to dump garbage at Meethotamulla without much regard to the mandatory requirement under the same statutory provision to “take all such measures and precautions as may be necessary to ensure that no such refuse.... it disposed of in such a way as to cause a nuisance.”
It is clear that the phrase “all such measures and precautions” in this provision implies inter alia the environmental clearance in term of section 23A of the National Environmental Act No. 47 of 1980 as amended by Act No. 56 of 1988 and Act No. 53 of 2000. National Environmental Protection Regulations under the National Environmental Act No. 47 of 1980 have been made by the Minister in charge of the Environment and Natural Resources. Under these regulations published in the Government Gazettes Extraordinary No. 1534/18 of February 01, 2008 and No. 1533/16 of January 25, 2008 “no person shall discharge, deposit or emit waste into the environment... n circumstances which cause or are likely to cause pollution .... otherwise than under the authority of a license issued by the Central Environmental Authority”.
This regulation is salutary for it endeavours to strike a balance between two competing interests, namely, the need to permit local government authorities to dispose of refuse or garbage and the more important need to ensure that the impact of such disposals of refuse on the environment is minimal.
It is clear that the authorities have failed to attach sufficient importance to the laws and regulations governing environmental protection which as a result have become redundant to a great extent.
Consequently, irreparable damage has been caused to all Sri Lankans in general due to the consequent air water pollution and to the residents of the relevant areas in particular. Pointing the finger of accusation at each other at this moment serves no purpose.
What is important is to provide immediate relief to the affected people and to make wise decisions with a view to preventing the occurrence of similar incidents in the future. For instance changing the sites of garbage dumps from Meethotamulla to Dompe or Ja-Ela or Muthurajawela is not a satisfactory solution although it might help to forget and delay the issue for some time. Furthermore it will be like ‘robbing Peter to pay Paul’ which means taking from one merely to give to another or discharging one debt by incurring another.
Particularly, the decision to deposit garbage at Muthurajawela is contrary to the ‘Ramsar Convention on Wetlands of International Importance’ concluded at Ramsar, Iran in 1971. This convention entered into force in Sri Lanka on the 15th of October 1990. Hence our country has an obligation to uphold the principles agreed upon by the parties to the said Convention. Muthurajawela is a wetland which is believed to have originated about 7000 years ago. It was declared as a sanctuary by the government in 1996 in recognition of its vast bio-diversity. Nevertheless this declaration will serve no purpose if garbage were allowed to be deposited as it will destroy the ecosystem that has taken 7000 years to form in a few years. Protection of the environment is essential for the sustainable development of a country. However, unfortunately in Sri Lanka the laws and regulations have not been enforced properly against individuals and corporate or unincorporated bodies that resort to any act in order to fulfil their selfish objectives even at the cost of the environmental pollution and destruction. It is important for us at this juncture to be mindful of the following statement made by Chief Seattle:
“The earth does not belong to man, man belongs to the earth. All things are connected like the blood that unites one family. Man did not weave the web of life; he is merely a strand in it. Whatever he does to the web, he does to himself. The earth is sacred and men and animals are but one part of it. Treat the earth with respect so that it lasts for centuries to come and is a place of wonder and beauty for our children.”
The Bar Association of Sri Lanka and its ‘Legal Aid and Public Interest Litigation Committee’ in particular, consider it their duty to empower people who have suffered at the hands of unscrupulous people by providing free legal aid to needy people and by public interest litigation.
The services that may be obtained include orders from Magistrates Courts to abate or remove nuisances, claims of damages in the District Courts for loss of life and property and injuries caused to the person, Writs of Certiorari and Mandamus to quash illegal decisions and compel public authorities to perform their public duties. Furthermore, awareness programmes have been planned for the purpose of enlightening the general public on their fundamental rights as well as fundamental obligations in the hope that they will ten seek legal remedies in the event of a breach of duty. These services will be provided free of charge by senior lawyers who have volunteered to serve the general public.
In order to ensure the continuation of these services in future it has been planned to train young lawyers and law students at the Association. For this just cause the BASL solicits the assistance and cooperation of all stakeholders including the affected parties, the general public, government and semi government institutions, and the print and electronic media. They are welcome to contact Dr. W. D. Rodrigo President's Counsel (Phone 0718433233) and Ravindranath Dabare, Attorney-at-Law (phone 0777307850) for further information and necessary legal advice and/or legal action.
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