As proclaimed in Vienna Declaration on Human Rights in 1993, democracy, development and respect for human rights and fundamental freedom are inter- dependent requiring attending to developmental and environmental needs of the present and future generations. Today society’s interaction with nature is so extensive so that environmental issues have assumed proportions affecting all humanity. With the industrial and technological development, mankind have not only improved economic conditions but also altered the natural ecological balance.
Sri Lanka’s environmental law is a curious mixture of civil law and common law principles derived from Roman Dutch law and English law, statute law juristic writings and judge made law. As a result, there is a multiplicity of jurisdictions and institutions in the environmental arena. The judiciary has shown a keen interest in the development of environmental law. Natural resources are managed through the law. Laws provide the tools and the framework for its management. The numerous tasks of management including policy making, enforcement, application of management techniques and tools and the making of specific decisions have to be performed within that framework.
The 1978 Constitution of Sri Lanka contains several provisions relating to environment. For an example, Article 27(14 of the Constitution of Sri Lanka) states that it is duty of the State ‘to protect, preserve, and improve the environment for the benefit of the community’. In addition, Article 28 (f) of the Constitution makes it ‘fundamental duty” of every person to protect nature and conserve its riches’. These provisions however, are not set out in the Chapter on fundamental rights: they are to be found in the Chapter entitled ‘Directive Principles of State Policy and fundamental duties’ and are not enforceable in a Court of Law in terms of Article 29 of the Constitution.
The 13th Amendment to the Constitution has introduced a new level of institutions between the Central Government and the Local Governments. Accordingly, in terms of item 37 of the Provincial Council List of the 9th Schedule to the Constitution, the Provincial Council can take action on the protection of environment within the Province to the extent permitted by or under the law made by Parliament. Moreover, the protection of environment is an item found in item 33 of the Concurrent List (List III) of the 9th Schedule to the 13th Amendment. Under this Provision, both National Government and Provincial Councils can take legislative and executive action on this subject having complied with the Provisions made thereon. Further Appendix II of the Provincial Council List provides for National Land Commission to be set up by the Government of Sri Lanka. This National Land Commission would be responsible for the formulation of national policy with regard to the use of State land. The provision for national land commission further stipulates in item 3.4 that in the exercise of the powers devolved on Provincial Councils, the power shall be exercised by the Provincial Councils having regard to the national policy formulated by the National Land Commission. The essence of the above provisions found in the 13th Amendment is that Provincial Council may take legislative and executive action within the Province to the extent permitted by or under the law made by Parliament.
The key environmental law at the statutory level in Sri Lanka is the National Environmental Act No.47 of 1980 as amended which has introduced both EIA and EPL procedures. Apart from this Act, there are many other sectoral statutes that deal with specific areas of resources or development activity.
Concept of trusteeship
The Doctrine of Public Trust is an important legal principle which has its roots relating to environment and public law. The duty cast on the State to protect and conserve the environment for the benefit of the people is not a new concept that was introduced with the enactment of the 1978 Constitution. In the Danube River case then Vice President of the International Court of Justice C.G Weeramantry J, referred to the conversation of King Devanampiyatissa (247 -207 BC) and Arahat Mahinda dating back to the 3rd century BC. The excerpts from the said conversation is given below:
‘Or great king, the birds of the air and the beasts have as equal rights to live and move about in any part of the land as thou. The lands belong to the people and all living beings; thou art only the guardian of it ……’ (Mahawansa; Chapter XIV).
Utility of the Public Trust Doctrine in Sri Lanka
The Supreme Court utilizes this Doctrine as a potential tool for a multitude of purposes: (a) to rectify the abuse of discretionary power, (b) to prevent the exploitation of natural resources and (c) to shield the under- privileged.
(a). A tool to rectify abuse of discretionary power
It is an essential reality in Sri Lanka that legislature cannot legislate for every possible circumstance. In consequence, the conferring of discretionary power upon public official is essential. However, such discretionary power so conferred are not unlimited, unconstrained power. Unfortunately at present there is an misunderstanding that the term discretion is synonymous with unrestricted power. Discretionary power must be understood to mean to power to decide an approximate mode of action in a given context but only so far as such power is exercised for the benefit of the public. The Supreme Court echoes this sentiment in Palihawadana v AG and Two Others by observing that ‘when a power is entrusted to a very high and responsible officer, he may be expected to act reasonably, objectively and without bias while discharging his duties. When a public officials exceeds his disciplinary powers the Court on the basis of public trust doctrine can hold such person accountable for his actions.
(b). As a tool to prevent exploitation of natural resources
In Bulnakulama v Secretary Ministry of Industrial Development, the notion of trusteeship was invoked in relation to natural resources as opposed to public power. In this case the Supreme Court concluded that the Government is the trustee of natural resources of the country. Being such a trustee, the State has an obligation to protect these resources for public use and from exploitation by individuals for private commercial gain. Bulankulama Judgment recognized the right to sustainable development and the obligation of the State to respect the principle of inter generational equity in exploiting natural resources and granted redress through the somewhat restricted parameters of the constitutional Chapter on Fundamental Rights. Recognizing that there are many operational definitions of sustainable development that are variations of the definitions of use by the Report of the World Commission on Environment and Development (1987), the Court went on to identify three main principles encompassed by that concept: (a) conservation of natural resources having regard to the principle of inter- generation equity (b) exploitation of natural resources in a sustainable manner (c) integration of environmental considerations into development programmes.
Of particular significance is the Court’s stipulation that the proposed agreement should be reviewed within the framework of international environmental law. The Court found that Sri Lanka, as a member of the United Nations, could ‘hardly ignore’ environmental requirements in the Stockhom Declaration (1972) and Rio Declaration (1992). Justice Amarasinghe went on to state: ‘the inter generational principles in my view, should be regarded as axiomatic in the decision making process in relation to matters concerning the natural resources and the environment of Sri Lanka in general and particularly in the case before us. It is not something new to us.’
The Doctrine also plays an immense role with regard to inter- generational equity which in its simplistic based terms can be described as equality between generations. Inter – generational equity with regard to natural resources entails the notion that one generation must act as guardians of natural resources in trust for the next and future generations. By acknowledging an obligation on the part of the public officials to use and preserve resources in a manner that is consistent with public trust, inter- generational equality will also result in the adoption of practices that contribute sustainable development through the reasonable use of natural resources and preservation of conservation of the environment. When the State fails to safeguard against private and commercial exploitation of common natural resources and degradation of the environment it also fails to fullfil its obligation as a public trustee. Thus it is imperative that public officials are fully aware of the implications of their exercise of public power in this regard.
(c). A shield for the under privileged
Public Trust Doctrine also serves as a shield for the under - privileged. This Doctrine may be used to facilitate the Rule of Law, thereby serving as a shield to protect the minorities and the under- privileged. Public Trust Doctrine dictates that any person or officials that exercises collective power does so because such power which is vested in the people is entrusted to them. Therefore ensuring dignity and respect for all regardless of their socio economic standing and belief is a logical extension of the Doctrine as well.
Sustainable development
Several decades ago, public international law was not much concerned with environmental protection. Later, the Stockholm Declaration of 1972 and subsequent international instruments have enriched the international community on the subject. The term ‘Sustainable Development’ which includes inter-generational equity was brought into common use by the Brundtland Commission Report in 1987. The Rio Declaration of 1992 which refers to the right to sustainable development seeks to bridge the gap between environmental protection and economic development. Recently, the Paris Agreement of 2016 which deals with global climate change also stipulates that the human right to development is not unlimited and must be perused within the framework of sustainable development.
Our Supreme Court in Heather Therese Mundy v Central Environmental Authority and Others has stated that ‘the Courts have to balance the right to development and the right to environmental protection. While development activity is necessary and inevitable for the sustainable development of a nation, unfortunately, it impacts the rights of the private individuals but such is the inevitable sad sacrifice that has to be made for the progress of a nation. The Court can only minimize as much as possible the effects to such rights. When balancing the competing interests between public rights and private rights, the conclusion necessarily has to be made in favour of the larger interests of the community who would benefit immensely by such developments’.
Our 1978 Constitution by Fundamental Rights Chapter III even by its later amendments does not surprisingly contain human right to environment or sustainable development despite extensive literature and dialogue on it. Therefore fundamental rights, both procedural and substantive found in our Chapter III of the Constitution are at times applied indirectly to the tribute to the Judiciary, facing legal difficulties as remedies for environmental issues.
A need has therefore arisen and developments taking place towards the emergence of a separate human right – fundamental right to sustainable development – to strongly address environmental issues. This study advocates a right to sustainable development as a fundamental human right for Sri Lanka under the proposed Constitution.
(The writer is retired Professor in Law, Faculty of Management Studies and Commerce, University of Sri Jayawardenepura.)
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