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

Constitutional Protection of Environment: The cherished Role of Our Judiciary

Part 3  

Public officers are held to a standard of accountability whereby they are answerable and held accountable for their decisions and actions in the exercise of their powers. This principle of accountability is enshrined in legal documents with varying degrees of force in various part of the world, mostly in relation to the prevention of corruption in the public sector. The United Nations Convention Against Corruption 2003 is one such example. This principle however is also given prominent at regional and national levels.

The principle of accountability is often discussed relation to the related principles of integrity and transparency: these principles indicate the standard we need to hold our public officers to a public accountability rest on four fundamental foundations. (a) Appropriate representation (b) citizen participation (c) legitimate conduct (d) liability enforcement. In ensuring that the participation of the citizenry is effective in holding public officials accountable, the public trust doctrine is avidly instructive.

Accordingly the Public Trust Doctrine is based on the notion that powers held by the Executive, Legislature and Judiciary are powers that originate with the people that are entrusted to such organs for the purpose of exercising government and with the sole objective of exercising such powers in good faith for the benefit of the people.

At this stage - three well established aspects of constitutional law which relates to environmental and public law perspectives stated by Sarath N. Silva CJ., in Vasudewa Nanayakkara v Choksy and Others (SC FR No.209 / 2007) may be pertinent.

They are

1. That the Rule of Law is the basis of our Constitution as affirmatively laid down in the decision of this Court in Visvalingam v Liyanage (1983) 1 Sri LR 236 and Premachandra v Jayawickrama (1994) 2 Sri LR 9 and consistently followed in several subsequent decisions. The rule of law postulates the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness of prerogative or wide discretionary authority on the part of the government. (vide. Law of the Constitution, A.V. Dicey, p 202).

2. That as firmly laid down in the Determination of the Divisional Bench of Seven Judges of the Supreme Court in regard the constitutionality of the proposed 19th Amendment to the Constitution (2002) 3 Sri LR 85, the principle enunciated in Articles 3 and 4 of our Constitution is that the respective organs of government, the Legislature, the Executive and the Judiciary are reposed power as custodian for the time being to be exercised for the people. In Bulankulama and Others v Secretary Ministry of Industrial Development (2000) Sri LR 243, this Court observed that the resources of the State are the ‘resources of the people’ and the organs of the State are the ‘the guardians to whom the public have committed the care and preservation of these resources’ (at 253 p) and that there is a confident expectation (trust) that the executive will act in accordance with the law and accountably in the best interests of the people of Sri Lanka.’ at 258p.

3. That there is a positive component in the right to equality guaranteed by Article 12(1) of the Constitution as decided in Senerath v Chandrika Bandaranaike Kumaratunga SC FR 503/ 2005 of 03.05.2007 and where the Executive being the custodian of the people’s power acts ultra vires and in derogation of the law and procedures that are intended to safeguard the resources of the people, it is in the public interest to implead such action before Court’.

Remedies in Public Law

A citizen who is aggrieved by a decision of a public body or inaction of a public body has a variety of remedies available under public law. The administrative action and/ or inaction on the part of a judge of any court, tribunal of first instance or other institutions or any person having legal authority to determine questions affecting the rights of subjects having the duty to act judicially may be challenged by way of judicial review. (R v Electricity Commissioner Ex p. London Electricity Joint Committee) The jurisdiction of the Court for an application for judicial review is invoked by way of a writ application in terms of Articles 140 or in terms of Article 154P of the 1978 Constitution. In general most of such applications are made by public spirited individuals or bodies as the inaction or illegal action of State institutions affect sometimes large number of citizens or group of citizens living in a particular locality who may not have the means or the awareness to institute action. The English law principles applicable to writ applications in judicial review always permitted citizen action or actiopopularis which is based on the premise that the main aim of public law is to keep bodies within their powers. The presumption is that citizens generally should be enabled to vindicate the public interest without showing individual harm over and above that of the general community.

The principle governing class action in involving the jurisdiction of Court of Appeal is based on the principle locus standi. The public law remedies are different and distinct from ordinary litigation between two parties, whether one party is the State, where one party is seeking to establish a claim or a right against the other. Judicial review is an action whereby the Constitution grants the public the right to challenge a decision of a Court, tribunal or a public officer with a view to protect the statutory or constitutional rights of the public in the interest of good governance. Lord Donaldson M.R. observed in R v Civil Service Board that

…….. Public law bodies and the Courts should be regarded as being in partnership in a common endeavour to maintain the highest standards in public administration, including, I would add, the administration of justice……

In Sri Lanka, apart from an application for writ the executive or administrative action that is in violation of a fundamental right contained in Chapter III of the Constitution could be challenged in terms of Articles 17 read with Article 126 of the Constitution. Due to the excessive time taken to reach finality in a writ application, in average three to four years, in appropriate cases, there is a tendency to evoke the jurisdiction of the Supreme Court by way of a Fundamental Rights Application. Further in a fundamental rights application, the bases of challenge is infringement or imminent violation of a fundamental right recognized under Chapter III of the Constitution by executive or administrative action. Article 12 has been widely interpreted to include any arbitrary or irrational action by the executive would constitute a violation of Article 12 of the Constitution provided the petitioner is entitled to make an application in terms of Article 126(2) of the Constitution.

Article 12(1) of the Constitution, as per several decisions of the Supreme Court attracts almost all principles applicable to judicial review. (Joseph Perera v Attorney General, M.A.K. Jayawardena v Dharani Wijayathilake; Hemasiri Fernando v Mangala Samaraweera and Others; Gunaratne v Sri Lanka Telecom and Others). Compared to the writ jurisdiction, this remedy is relatively new and was effectively introduced by the 1978 Constitution.

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 2015 which deals with global climate change also stipulates that the human right to development is not unlimited and must be persued within the framework of sustainable development.

Our Supreme Court inHeather Therese Mundy v Central Environmental Authority and Othershas 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 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)