Constitutional protection of environment | Sunday Observer

Constitutional protection of environment

10 October, 2021

As proclaimed in the Vienna Declaration on Human Rights in 1993, democracy, development, and respect for human rights and fundamental freedoms are inter-dependent requiring attending to the developmental and environmental needs of the present and future generations.

Today society’s interaction with nature is extensive that environmental issues have assumed proportions affecting all humanity. With industrial and technological development, mankind has not only improved economic conditions but also altered the natural ecological balance.

Environmental law

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 the environment. For 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 a ‘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.

13th Amendment 

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 the environment within the Province to the extent permitted by or under the law made by Parliament. Moreover, the protection of the 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, also affecting aspects of the environment.

Doctrine of trusteeship

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 sectorial statutes that deal with specific areas of resources or development activity.

The Doctrine of Public Trust is an important legal principle that has its roots relating to the 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 the responsibility which is imposed on the State to conserve and protect such resources.

The State does enjoy sovereignty over natural resources as recognised 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), December 11, 1970, one of the first duties the States have is that they should exercise their sovereignty over natural resources in consideration with the promotion of the wellbeing of their people.

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.

Basis 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 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 is of immense importance and have been cited in many cases regarding the doctrine.

His Lordship SN Silva CJ in the case of Vasudeva Nanayakkara V Choksy and Others having referred to Senerath V Kumarathunga stated that where the Executive being the custodian of Peoples’ 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 internet to implead such actions before courts.

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 

The Supreme Court utilises 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.

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 are 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 belongs to the people and all living beings; thou art only the guardian of it ……” (Mahawansa; Chapter XIV ). 

Bulankulama case

The Intergenerational Equity concept was explored in detail by the Supreme Court in the Eppawala (Bulankulama) 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 recognised 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, programs 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 recognised 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.

Precautionary principle

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.

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 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 utilised in arguments against acts of deforestation of tropical forests, and destruction of eco-systems, as these are problems that aggravate climate change.

Wilpattu judgment 

The Court of Appeal held in the recent case, a judgment better known as the Wilpattu judgment that, the resettlement of the IDPs in an area of over 3000 Ha in the Manner District since 2009, has been made contrary to law.

This judgment which upheld the people’s right to the environment was a landmark judgment 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 IDPs (Internally Displaced Persons ) was illegal, the Court in the Wilpattu 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 program 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 Bathiudeen 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 any environmental damages caused, the burden of proof of demonstrating that, the particular technology or practice, the product is safe should lie with the developer, not the public.

As held by the Court of Appeal 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 acknowledgment paves the way and sets the precedent for the State.

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, a tribunal of the 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 (the more suitable term is the duty to act fairly) may be challenged by way of judicial review.

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, many such applications are made by public-spirited individuals or bodies as the inaction or illegal action of State institutions affect sometimes a large number of citizens or groups of citizens living in a particular locality who may not have the means or the awareness to institute an action.

Our Supreme Court (per his lordship Mark Fernando J) 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 minimise 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 and even by its later amendments do not surprisingly contain the right to the environment or sustainable development despite extensive literature and dialogue on it. Therefore, fundamental rights, both procedural and substantive found in 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 justiciable fundamental human right for Sri Lanka under the proposed Constitution.

(The writer is a retired Professor in Law at the University of Sri Jayewardenepura. He is an Attorney - at – law who practised in Courts and holds Ph.D. in Law, with four other university post Degrees)