Enforcing Environmental Laws in Sri Lanka Through Fundamental Rights Litigation

Abstract

Due to the tension between environmental protection and economic development in Sri Lanka, enforcement of environmental laws presents special challenges. Changes in social attitude about use of the environment come slowly and sometimes grudgingly. Enforcement of environmental laws is often at odds with traditional uses of natural resources by indigenous people and with income-producing uses by owners and investors. Environmental law enforcement has received new emphasis from local police officials, magistrates and lower court judges. This article examines fundamental right litigation brought procedurally under Article 126 of the Constitution of Sri Lanka of 1978 in environmental contexts. Fundamental rights are substantive rights secured by the Constitution. Article 126 allows cases to be brought directly to the Supreme Court. This use of Article 126 is one strategy employed by litigants in Sri Lanka to prompt or support enforcement of its existing environmental laws. Upon review of cases reported in the South Asian Environmental Law Reporter and in discussions with staff of the Environmental Foundation, Ltd. (a non-governmental organization in Colombo, Sri Lanka), it appears that there are four main strategies being used in Sri Lanka for the protection of the land environment by entities outside the government: (1) public nuisance complaints brought to the attention of magistrates under Section 98 of the Code of Criminal Procedure Act No. 15 of 1979, and under Section 261, 283 and 284 of the Penal Code No. 2 of 1883; (2) private nuisance suits brought by neighbors of small businesses such as brick kilns and quarries; (3) participation in the comment process for environmental impact assessments under the National Environmental Act, No. 47 of 1980; and, (4) fundamental rights petitions under Art. 126 of the Constitution. The question of fundamental rights violations has been raised in litigation in two ways. The first is public interest litigation benefiting community residents. Community members allege that government officials violate fundamental rights in permitting certain nuisances to occur in their jurisdictions. Plaintiffs allege that agricultural or industrial operations present a continuous threat to their safety, actual injury to their physical and mental health, and/or serious damage to property and means of livelihood. The second approach is fundamental rights litigation brought by environmental law enforcers, such as forest and wildlife rangers, who allege interference with their enforcement activities by local officials and police. Rangers enforcing environmental laws in Sri Lanka have encountered resistance to their work, including physical violence. This article contains (1) a discussion on the status of the constitutional right to a wholesome environment in Sri Lanka, and a comparison with the law in India; (2) an examination of recent fundamental rights cases before the Supreme Court of Sri Lanka; (3) an examination of Sri Lanka's constitutional provision regarding standing to sue (locus standi) on fundamental rights claims as well as other standing provisions that bear on public policy; and (4) a commentary on the role of fundamental rights litigation in changing the relationship of people to the natural environment. Complaints by industry of unequal environmental law enforcement are beyond the scope of this article's discussion.