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

Constitutional Protection of Environment: The cherished Role of Our Judiciary

Wilpattu National Park
Wilpattu National Park

Part 2

The uncertainty surrounding potential threats to the environment has frequently been used as a reason to avoid taking action to protect the environment. However, it is not always possible to have clear evidence of a threat to the environment before the damage occurs. The “Precautionary Principle” is a response to this uncertainty.

Rio Declaration, 1992’ Principle 15 incorporates this principle in the following terms:

“In order to protect the environment the Precautionary Approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

This principle is also incorporated in Convention on Biological Diversity 1992, Preamble; Framework Convention on Climate Change 1992, Article 3.3; Convention on International Trade in Endangered Species of Wild Fauna and Flora, Resolution Conf 9.24 (Rev COP13); Cartagena Protocol on Biosafety to the Convention on Biological Diversity 2000 and the Earth Charter, para 6. The Precautionary Principle is of particular relevance and importance in the context of conservation and sustainable use of biodiversity and living natural resources, Species and ecosystems (similar to that of the destroyed forest area in Wilpattu) are genetically unique and irreplaceable their loss is irreversible. Further, conservation and sustainable use must deal with a particularly high degree of persistent and largely irreducible uncertainty and complexity.

In Article 3.3 of the United Nations Framework Convention on Climate Change (UN- FCCC, 1992) it is stated that: “The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects....”. By placing a greater emphasis on direct measures to systematically monitor observable effects, a precautionary approach offers a way to be more responsive to harm due to climate change, when the first signals of it manifest themselves in the real world, however ambiguous these first signals may be. Therefore, a truly precautionary principle argues for focusing on solving current problems that may be aggravated by climate change, and on increasing society's adaptability and decreasing its vulnerability to environmental problems in general and climate, change in particular. Hence, this basis provided by the precautionary principle can be utilized in arguments against acts of deforestation of tropical forests, and destruction of eco-systems, as these are problems that aggravate climate change.

Wilpaththu Judgement

The Court of Appeal held in the recent case judgement better known as the Wilpaththu judgement that, the resettlement of the IDP’s in an area of over 3,000 Ha in the Manner District since 2009, has been made contrary to law. This judgement which upheld the people’s right to environment was a landmark judgement in Sri Lanka jurisprudence pertaining to Environmental Law just as the Chunnakam Power Plant case and the Eppawala Phospate Case before it as its explodes and incorporated several international environmental principles in reaching its conclusions in favour of environmental conservation. In addition to holding that settlement of IDP’s (Internally Displaced Persons) was illegal, the Court in the Wilpaththu Case also issues an order in the Nature of Mandamus ordering the first respondent (Conservator General of Department of Forest Conservation) to take action to implement a tree planting programme under and in terms of the provisions of the Forest Ordinance No 16 of 1907 as amended in any area equivalent to the reserve forest area used for resettlement of IDP’s. An ancillary or consequential order was issued directing the seventh respondent, former Minister Rishard Badhrudeen to bear the full cost of such tree planting programme applying the Polluter Pays Principle since according to the evidence before the Court, he was instrumental in using reserve forest land for the resettlement of IDP’s.

Polluter Pays Principle

The core of the polluter pays principle is that the polluter should pay for the any environmental damages caused, the burden of proof of the demonstrating that, the particular technology or practice, product is safe should lie with the developer not the general public. As held by the Court in the Wilpaththu case, Judiciary is a part of the State and is bound to protect, preserve and improve the environment for the benefit of the community as directed by Art 27(14) of the Constitution. This crucial acknowledgement paves the way and sets the precedent for the State.

Additional to the so stated polluter pays principle, many other international environmental law concepts, such as intergenerational equity, precautionary principle, the over arching concept of Sustainable development have established a solid foundation upon which Sri Lanka’s environmental law jurisprudence can rest. Furthermore, Sri Lanka's treaty obligations under the Environmental and Human Rights Conventions including and not limited to Paris Agreement (2015) and legal concepts like the Public Trust Doctrine as elaborated this Article, make it crucial that Sri Lankan Government be bound by its obligations to protect and preserve its national resources of the country on behalf of the its citizen, notwithstanding the role by the citizens.

Sources of Public Trust Doctrine

There are two possible sources of Public Trust Doctrine namely, (a) Roman Dutch law in relation to environmental law and (b) the notion of trusteeship in the Law of Trusts. The Doctrine of Public Trust was initially developed in the Roman-Dutch law, particularly with reference to environmental law and the rights of the public to natural resources. Roman – Dutch law which distinguishes between res nullius and res communes, assigns common ownership to that which comes under the latter category. In assigning natural resources with a sense of common ownership Title I of Book II of the Institutes of Justinian is pertinent. This section states as follows:

‘The following things are by natural law common to all – the air, running water, the sea, and consequently seashore. No one, therefore is forbidden access to the seashore….. for these are not, like the sea itself, subject to the law of nations.’

This notion of ‘common to all’ or common all mankind underlines the fundamental basis upon which the Doctrine operates: all natural resources such as rivers, forests, air are subject to common, or public ownership and therefore are held by the government in trusteeship for the use of the general public and are managed and utilized for public purposes. The doctrine also affirms that endowments of nature should be freely available to public, irrespective of the social or economic standing of the person. The roots and fundamental basis of the Doctrine may also be traced to the concept of trust which dictates that property or resources can be held by one person, on behalf of another.

Basis of Public Trust Doctrine in Sri Lanka

The Doctrine of Public Trust in Sri Lanka is the bedrock of the Constitution and elected officials and the arms of the State are mere enforcing agents of the power that is truly vested in the people. In this regard, Articles 3 and 4, Article 12(1) and Chapter VI of the Constitution of the Democratic Socialist Republic of Sri Lanka are of immense importance and have been cited in many cases regarding the doctrine. Article 3 of the Constitution provides that ‘in the Republic of Sri Lanka sovereignty of in the people and is inalienable. Sovereignty includes the powers of the government, fundamental rights and franchise.’ In order to establish that the officials are custodians of powers held on behalf of the people, it is argued that these powers are vested in the people and are inalienable by virtue of Article 3. Article 4 provides that the legislative power of the people is to be exercised by Parliament, the executive power by the President of the Republic and the judicial power by Parliament through Courts, tribunals and institutions created, established or recognized by the Constitution. Moreover, Article 4(d) provides that

‘the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, saved in the manner and to the extent hereinafter provided.’

Also relevant are the Directive Principles of State Policy and Fundamental Duties outlined in Chapter VI of the Constitution and mostly importantly Article 28 which provides that ‘… It is the duty of every person in Sri Lanka – (d) to preserve and protect public property and to combat misuse and waste of public property and – (f) to protect nature and conserve its riches’.

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 underprivileged.

(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 a 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 official 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 Bulankulama 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 Judgement 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 important 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 to sustainable development through the reasonable use of natural resources and 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 fulfill 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 underprivileged

Public Trust Doctrine also serves as a shield for the underprivileged. This Doctrine may be used to facilitate the Rule of Law, thereby serving as a shield to protect the minorities and the underprivileged. Public Trust Doctrine dictates that any person or official 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.

(The writer is a retired Professor in Law in the University of Sri Jayawardenepura. He is an Attorney-at-Law and practiced in Courts with PhD in law)

To be continued