Constitutional Protection of Environment: The cherished Role of Our Judiciary | Daily News

Constitutional Protection of Environment: The cherished Role of Our Judiciary

Sinharaja forest reserve
Sinharaja forest reserve

As proclaimed in Vienna Declaration on Human Rights in 1993, democracy, development and respect for human rights and fundamental freedoms 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 the 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 (FR): 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.

Although Constitution contains an expanded FR chapter, it does not contain an express right to healthy environment nor an express right to life. Nevertheless, disputes involving environment have reached the Supreme Court on the basis that, they have involved the violation of other Fundamental rights, such as right to equality, right to carryon lawful occupation. Therefore the right to healthy environment / right to sustainable development is considered to be the need of the hour.

The 13th Amendment to the Constitution has introduced a new level of institutions between the Central Government and the Local Government. 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.

Doctrine of Trusteeship

The Doctrine of Public Trust is an important legal principle which has its roots relating to environment and public law. The Public Trust Doctrine which acknowledges that the State holds natural resources of the country in trust for its citizens gives rise to responsibility which is imposed on the State to conserve and protect such resources. The State do enjoy sovereignty over natural resources as recognized by Principle 21 of the Stockholm Declaration, Principle 2 of the Rio Declaration, Article 3 of the Convention on Bio Diversity, Article 194(2) of the UN Convention of the Law of the Sea, Article 1(2) of the International Covenant on Civil and Political Rights (ICCPR) and Article 1(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is sometimes seen that the States use their sovereignty as a shield.

When States participate in Natural Resources exploitation, sometimes accompanied by Human Rights violations, they sometimes disregard the complaints due to sovereignty. The Paris Agreement (2015) brought the change in this attitude. Through the Nationally Determined Contributions (NDC) system, countries are now held accountable for their emissions. According to the UN General Assembly Resolution (1803) (XVII), December 14th 1962, UN General Assembly Resolution 2692 (XXV), 11th December 1970, one of the first duties the Sates have is that they should exercise their sovereignty over natural resources in consideration with the promotion of the well-being of their people. Furthermore, Article 47 of the ICCPR states that, “Nothing in the present Covenant shall be interpreted as impairing the inherent rights of all peoples to enjoy and utilize fully their natural wealth and resources. The same is repeated within the ICESCR. Article 1 and 25 and Sri Lanka is a party to both these Covenants and is bound by these provisions.

Danube River case

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).

Dr. A. R. B. Amarasinghe J. in Bulankulama and Others v Secretary of Industrial Development and others (2000), refers to the fact that the king was Bhupathi or Bhupala meaning ‘lord of the earth or protector of the earth’. The Doctrine of Public Trust which was developed through the concept of trusteeship of the kings and rulers is now a well developed legal principle in many parts of the world. In Bulankulama case the Supreme Court of Sri Lanka observed that the organs of State are guardians to whom the people have committed the care and preservation of the resources of the people.

In WatteGedara Wijebanda v Conservator General of Forest and Eight Others (2007), (per Shiranee Tilakawardane, J), the Supreme Court held:

Courts in Sri Lanka have long since recognized that the organs of the State are guardians to whom the people have committed the care and preservation of the resources of the people. This recognition of the Doctrine of the Public Trust, accords a great responsibility upon the Government to preserve and protect the environment and its resources.

Bulankulama Case

The Intergenerational Equity concept was explored in detail by the Supreme Court in the Eppawala Case which related to the handing over of the mining activities in the Eppawala phosphate mine to the company named Freeport MacMoran. The Court in this case recognized that the Concept of Sustainable Development encompassed three elements: first, the conservation of natural resources for the benefit of future generations- which is known as the Principle of Intergenerational Equity; second, the exploration of natural resources in a manner which is ‘sustainable’ or ‘prudent’- which is known as the Principle of ‘Sustainable Use’; third, the integration of environmental considerations into economic and other development plans, programmes and projects - which is known as the principle of Integration of Environment and development needs.

The Court went on to highlight the international instruments which have clearly recognized the principle of Intergenerational Equity. Citing Principle 1 and 2 of the Stockholm Declaration, the Court held that it has been stated that humankind bears a solemn responsibility to protect and improve the environment for present and future generations, and that the natural resources of the earth including the air, water, land, flora and fauna must be safeguarded for the benefit of present and future generations.

The Court also made mention of the Principle 3 of the Rio De Janeiro Declaration, and stipulated that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. It was the Court's view that the Inter-Generational principle is to be regarded as ‘axiomatic’ in the decision making process in relating to matters concerning the natural resources and the environment of Sri Lanka in general. Thus, the Eppawala judgement set the precedent of this principle being applied in subsequent determinations pertaining to the environment.

To be continued