LEADLawEnvironment and

DevelopmentJournal

VOLUME

11/2

USING CONSTITUTIONAL PROVISIONS TO ADVANCE ENVIRONMENTALJUSTICE – SOME REFLECTIONS ON SRI LANKA

Camena Guneratne

ARTICLE

LEAD Journal (Law, Environment and Development Journal)is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the

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This document can be cited asCamena Guneratne, Using Constitutional Provisions to Advance

Environmental Justice – Some Reflections on Sri Lanka,11/2 Law, Environment and Development Journal (2015), p. 72,available at http://www.lead-journal.org/content/15072.pdf

Camena Guneratne, Professor - Dept. of Legal Studies, Dean - Faculty of Humanities and Social Sciences,Open University of Sri Lanka, P O Box 21, Nawala, Nugegoda 10250, SRI LANKA, Email: cgune@ou.ac.lk

Published under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License

ARTICLE

USING CONSTITUTIONAL PROVISIONS TO ADVANCEENVIRONMENTAL JUSTICE – SOME REFLECTIONS

ON SRI LANKA

Camena Guneratne

TABLE OF CONTENTS

1. Introduction 74

2. The Substantive and Procedural Fundamental Rights Provisions ofthe Sri Lankan Constitution 76

3. The Right to Equality 783.1 Procedural Innovations - Discrimination and

the Expansion of Standing to Sue 783.2 Substantive Innovations - The Principle of Arbitrary Action 803.3 Application of Article 12(1) to Legislative Review 823.4 Balancing the Rights of Individuals and the Public 83

4. Other Constitutional Rights - The Right to Occupationand Freedom of Movement 86

5. Inferring Rights Not Contained in the Constitution 87

6. Re-defining Existing Rights 87

7. Conclusion 88

1INTRODUCTION

The environmental justice movement originated inthe United States mainly in the context of pollutingindustries and the disposal of hazardous waste, whichaffect minority and low-income communities. Theterm has been defined by Robert Bullard, Directorof the Environmental Justice Resource Center at theClark Atlanta University, in his work ‘Dumping inDixie: Race, Class, and Environmental Quality’ as ‘theprinciple that all people and communities are entitledto equal protection of environmental and publichealth laws and regulations.’1 The movement in theUnited Stated focuses primarily on issues ofpollution and health, and the disproportionateburden borne by certain communities of the impactsof environmental pollution and natural resourcesdegradation. It is also therefore integrated withquestions of civil and political rights, racism anddiscrimination, which may be based on a range offactors including class, race, ethnicity, nationality,gender, and urban/rural divisions.2

Kameri-Mbote and Cullet have critiqued the narrowfocus of the environmental justice movement in itscountry of origin. They agree that it ‘challenges aprocess of development that does not ensure thesharing of environmental costs and benefits equitablyamong citizens.’3 However, they also argue thatwhile it has moved away from a focus on theenvironment per se to issues of social justice, it isstill constrained by the main concerns of western

environmentalism, i.e. resource conservation andpollution prevention, and does not challenge theunderlying economic model which is the root causeof environmental degradation and social injustice.4

Since its origin in the United States, the discourseon environmental justice has expanded globally,including in developing countries. While the validityof its original focus on pollution and discriminationis not disputed, in the context of the wider concernsof the development process in countries of the globalSouth, the principle needs to be broadened beyondits limited boundaries as described by Kameri-Mboteand Cullet into one which defines developmentmodels founded on environmental and economicsustainability, social equity and human rights.Developing countries including Sri Lanka aregrappling with dilemmas of poverty, and social andeconomic inequality, and are seeking modelsfounded on these standards. The principle ofenvironmental justice must therefore address thefundamental paradigms of development withparticular emphasis on ensuring that the benefits aswell as the brunt of the development process areshared equally for the greater good.

Carmen Gonzalez offers a definition ofenvironmental justice that is consistent with thechallenges faced by developing countries. It consistsof four aspects, namely, distributive justice,procedural justice, corrective justice, and socialjustice. She describes these four aspects as follows:

Distributive justice calls for the fairallocation of the benefits and burdensof natural resource exploitationamong and within nations. Proceduraljustice requires open, informed, andinclusive decision-making processes.Corrective justice imposes anobligation to provide compensationfor historic inequities and to refrainfrom repeating the conduct thatcaused the harm. Social justice, thefourth and most nebulous aspect ofenvironmental justice, recognises thatenvironmental struggles are inextricably

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1 Quoted in Luz Claudio, ‘Standing on Principle: TheGlobal Push for Environmental Justice’ (2007) 115(10)Environmental Health Perspectives A500-A503.

2 Krista Harper and S Ravi Rajan, ‘InternationalEnvironmental Justice: Building the Natural Assets of theWorld’s Poor’, Political Economy Research InstituteWorking Paper Series Number 87 (2004) <http://scholarworks.umass.edu/cgi/viewcontent.cgi?article=1070&context=anthro_faculty_pubs> accessed 9 May 2015.

3 Patricia Kameri-Mbote and Philippe Cullet,‘Environmental Justice and Sustainable Development:Integrating Local Communities in EnvironmentalManagement’ International Environmental Law ResearchCentre, Working Paper(1996-1)5 <www.ielrc.org/content/w9601.pdf> accessed 9 May 2015. 4 ibid.

intertwined with struggles for socialand economic justice.5

This four-pronged definition enables the principleof environmental justice, while addressing immediateissues of injustice and discrimination, to be also usedas a tool for transformative change in developingcountries such as Sri Lanka. It must not be limited torights to a pollution free environment, but shouldalso encompass rights to sustainable development, toequal access to natural resources, and to freedom frompoverty, hunger and deprivation. Importantly, itmust also reinforce the capacity and autonomy ofcitizens to determine the sustainable use andprotection of natural resources and the equitablesharing of such resources. Thus procedural rights thatempower peoples and communities also come withinthe ambit of the principle.

The enforcement and fulfilment of such a principleof environmental justice is most effectivelyimplemented within a constitutional framework ofhuman rights. Constitutional rights, which areenforceable at the highest level of the judicial process,provide both the substantive and proceduralfoundation on which to conceptualise and interpretthis concept, to offer practical responses toimmediate issues and to articulate paradigms ofenvironmental protection and developmentprocesses. In the last two decades, an increasingnumber of countries have incorporatedenvironmental rights into their constitutions.6 These

rights are not limited to protection of theenvironment per se or the sustainable use of naturalresources, but are also linked to other social andeconomic rights such as those to food and water,and sanitation.7 Procedural aspects of enforcementare grounded in civil and political rights includingrights to equality, non-discrimination and dueprocess. Environmental rights thus reflect theuniversality and indivisibility of human rights,8 andpotentially provide courts with the basis on whichto substantiate the principle of environmental justiceand realise its objectives.

Sri Lanka has a large body of jurisprudence that hasinterpreted and innovated the specific rightscontained in the Constitution, and this body of lawcan serve as the basis of further expansion into thearea of environmental justice. Notwithstanding thelimited scope of the fundamental rights provisionsin the Constitution, over the years the Sri Lankanjudiciary has creatively used them to develop a bodyof case law, which has defined social justice andhuman rights in the development process and in thecontext of environmental degradation. The role ofthe judges has been facilitated by the public interestlitigation on issues of environment and developmentand fundamental rights which has been drivenlargely by non-governmental organisations litigatingeither in their own capacity or as legal counsel foraffected people. This paper will consider theconstitutional framework in Sri Lanka and the extentto which its provisions have been used to defineenvironmental and related developmental rights, andto further environmental justice.

This paper will begin by introducing the substantiveand procedural provisions on fundamental rights in

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5 Carmen G Gonzalez, ‘Environmental Justice andInternational Environmental Law’ in Shawkat Alam et al(eds) Routledge Handbook of International EnvironmentalLaw (Routledge 2013) ch 5 and Seattle University Schoolof Law Research Paper No. 12-11 <http://ssrn.com/abstract=2011081> accessed 9 May 2015.

6 Kishan Khoday, ‘Environmental Justice, ComparativeExperiences In Legal Empowerment’ (United NationsDevelopment Programme June 2014) <www.undp.org/content/undp/en/home/librarypage/democratic -governance/access_to_justiceandruleoflaw/environmental-justice—comparative-experiences.html > accessed 5 May2015. Khoday notes that 140 Constitutions todayincorporate environmental principles. This includes 19countries in Latin America and the Caribbean and 32 inAfrica. Of the 140 constitutions containing environmentalrights, 92 contain substantive rights, 30 procedural rights,83 impose an individual duty related to the environment,and 140 impose a duty on the government to addressenvironmental protection.

7 ‘The rights to water and sanitation in national law’<www.righttowater.info/progress-so-far/national-legislation-on-the-right-to-water/#SRI> accessed 5 May2015; Lidija Knuth and Margret Vidar, ‘Constitutionaland Legal Protection of the Right to Food around theWorld’ (Food and Agricultural Organisation 2011)<www.fao.org/docrep/016/ap554e/ap554e.pdf>accessed 5 May 2015.

8 David R Boyd ‘The Constitutional Right to a HealthyEnvironment’ Environment, Science and Policy forSustainable Development (July-August 2012)<www.env i ronmentmagaz ine .org/Arch ives/B a c k % 2 0 I s s u e s / 2 0 1 2 / J u l y - A u g u s t % 2 0 2 0 1 2 /constitutional-rights-full.html> accessed 5 May 2015.

the Sri Lankan Constitution. It will then examinein detail the jurisprudence on the right to equalityembodied in Article 12. It is this Article and itsinterpretation of non-discrimination and the equalprotection of the law that has been the basis of anextensive body of jurisprudence definingenvironmental rights and justice. The paper will thenbriefly discuss other constitutional rights that havealso been interpreted in this context with varyingimpacts.

2THE SUBSTANTIVE AND PROC-EDURAL FUNDAMENTAL RIGHTSPROVISIONS OF THE SRI LANKANCONSTITUTION

The present Sri Lankan Constitution was enactedin 1978. It contains a Bill of Rights in Chapter III,which is limited to civil and political rights. Therights encompass the accepted gamut of this categoryof rights including the right to freedom of thought,conscience and religion,9 freedom from torture andcruel, inhuman and degrading treatment andpunishment,10 and the right to equality before thelaw and the equal protection of the law.11 Article14 covers a range of rights including freedom ofspeech and expression,12 freedom of peacefulassembly and association,13 the freedom to engageby oneself or in association with others in any lawfuloccupation, profession, trade, business orenterprise,14 and the freedom of movement and ofchoosing one’s residence within Sri Lanka.15

Economic and social rights are not included in thisChapter and there is no right to a healthyenvironment. Unlike the Constitutions of

neighbouring South Asian countries such as India,Pakistan and Bangladesh, the Sri LankanConstitution does not contain a provisionguaranteeing the right to life.

What would amount to economic and social rightsare included in Chapter VI of the Constitutionentitled “Directive Principles of State Policy.”However, this Chapter is subject to certainlimitations. Firstly, the “rights” are not categoricallyarticulated as such, but are merely intended to guidethe State to establish a just and free society and asobjectives that the State is pledged to fulfil.16 Severalprovisions relate to aspects of social justice includingthe “promotion of the welfare of the People bysecuring and protecting as effectively as it may, asocial order in which justice (social, economic andpolitical) shall guide all the institutions of thenational life,”17 and “the realization by all citizensof an adequate standard of living for themselves andtheir families, including adequate food, clothing andhousing, the continuous improvement of livingconditions and the full enjoyment of leisure andsocial and cultural opportunities.”18 A furtherobjective is “the equitable distribution among allcitizens of the material resources of the communityand the social product, so as best to sub-serve thecommon good.”19 The only mention ofenvironmental concerns is expressed in the provisionthat: “The State shall protect, preserve and improvethe environment for the benefit of thecommunity”20 and the duty imposed upon “everyperson in Sri Lanka” to “preserve nature andconserve its riches.”21

Many of these objectives are expressions ofeconomic, social, and developmental rights.However, a limitation on the effectiveness ofthese provisions is that they are not justiciable andcannot be litigated in, or enforced by, a court of

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9 Constitution of the Democratic Socialist Republic of SriLanka, art 10.

10 ibid art 11.11 ibid art 12.12 ibid art 14 (a).13 ibid art 14 (b) and (c).14 ibid art 14 (g).15 ibid art 14 (h).

16 The Directive Principles shall “guide Parliament, thePresident and the Cabinet of Ministers in the enactmentof laws and the governance of Sri Lanka for theestablishment of a just and free society.” ibid art 27 (1).

17 ibid art 27 (2) (b).18 ibid art 27 (2) (c).19 ibid art 27 (2) (e).20 ibid art 27 (14).21 ibid art 28 (f).

law.22 Therefore they remain merely aspirations thatmay be fulfilled at the discretion of the State.

The enforcement procedures of these rights have alsobeen set out in the Constitution and the task ofprotecting the fundamental rights of the people lieswith the Supreme Court, which has sole andexclusive jurisdiction to hear and determine anyquestion relating to the infringement of suchrights.23 The jurisdiction of the Court is notunlimited and there are some procedural restrictionson the petitions that the Court can entertain.

To begin with, the infringement of a right must beby executive or administrative action, and thejurisdiction of the Court cannot be invoked againstprivate actors.24 The Court has upheld thislimitation, stating in an early case: ‘the wrongful actof an individual unsupported by state authority issimply a private wrong. Only if it is sanctioned bythe state or done under state authority does itconstitute a matter for complaint under Article 126.Fundamental rights operate only betweenindividuals and the state.’25 The Court hasinterpreted “state action” as encompassing executiveacts of a state official done in the exercise of his orher authority (including abuse of authority), or whileholding public office. Acts of agencies of governmentalso constitute state action.26 Interestingly, in a casethat concerned the rights of an environmentaldefender, the Court held that the failure of the stateto act would also constitute state action. In otherwords, state action includes state inaction.27

The rules governing locus standi also restrict the filingof fundamental rights petitions in Sri Lanka to someextent, and only an aggrieved party may sue forviolation of rights.28 This is in contrast to Indiawhere liberal constitutional procedures permitrepresentative standing in fundamental rightslitigation, and which facilitated the development andexpansion of social action litigation including onenvironmental issues. While initially the Sri LankanCourt enforced this provision strictly,29 as discussedbelow, the expansive interpretation given to thesubstance of fundamental rights such as the right toequality, has in turn resulted in a greater degree offlexibility in the rules governing who may petitionthe Court.

An increasing proportion of the fundamental rightsjurisprudence that has developed in Sri Lanka overthe last three decades has been in relation to issuesof environment and development. Since thefundamental rights action is available only againstthe State, these cases have been filed as challenges tostate development projects or other state action,which have potential adverse impacts oncommunities, or which were perceived as beingdetrimental to the common good. By and large thesecases have been filed as public interest litigation,usually by non-governmental organisations workingin the field of environment. In some of these cases,the lawyers concerned have attempted to file “testcases” where they have presented innovativearguments in an attempt to urge the Court to deliver

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22 ibid art 29. It states, “The provisions of this Chapter donot confer or impose legal rights or obligations and arenot enforceable in any court or tribunal. No question ofinconsistency with such provisions shall be raised in anycourt or tribunal.”

23 ibid art 126.24 ibid art 17. There is a general view that this does not

prevent civil suits being filed against private actors in thelower courts but the issue has not been tested.

25 Perera v University Grants Commission (1978-79-80) 1 SriL R 128, 138 [‘Perera’].

26 Amal Sudath Silva v Kodituwakku, Inspector General ofPolice and Others (1987) 2 Sri L R 119; Mariadas Raj vAttorney General (1983) 2 Sri L R 461; Gunewardene vPerera (1983) 1 Sri L R 305.

27 Mohamed Faiz v The Attorney General (1995) 1 Sri L R372.

28 Constitution (n 9) art 126 (2) reads as follows: “Whereany person alleges that any such fundamental right orlanguage right relating to such person has been infringedor is about to be infringed by executive or administrativeaction, he may himself or by an attorney-at-law on hisbehalf, within one month thereof, in accordance withsuch rules of court as may be in force, apply to theSupreme Court by way of petition in writing addressedto such Court praying for relief or redress in respect ofsuch infringement. Such application may be proceededwith only with leave to proceed first had and obtainedfrom the Supreme Court, which leave may be granted orrefused, as the case may be, by not less than two Judges.”

29 In Somawathie v Weerasinghe and Others (1990) 2 Sri LR121, the Court did not permit a wife to bring a fundamentalrights action on behalf of her husband who was in custodybut in Sriyani Silva (Wife of Jagath Kumara-Deceased) vIddamalgoda, Officer-In-Charge, Police Station, Payagala andOthers (2003) 1 Sri L R 14, it took a more liberal stance.

this paper. While the early cases involved issues ofadministrative justice in situations such asemployment recruitments, promotions, anduniversity admissions,30 these in turn paved the wayfor the application of the constitutional remedies tosituations that were probably not foreseen at thetime, including those involving issues of theenvironment and development. The followingsection will examine some of the procedural andsubstantive innovations developed by the Court toaddress questions of environmental protection,developmental policy and human rights.

3.1 Procedural Innovations -Discrimination and the Expansionof Standing to Sue

Litigation on Article 12 is noteworthy both for itsexpansive interpretation of the right to equality andthe equal protection of the law, as well as theconsequent expansion of the principle of locus standi.The first significant case concerning issues ofenvironmental justice that relied on Article 12 wasBulankulame v The Secretary, Ministry of IndustrialDevelopment and Others, popularly known as theEppawela case.31 The Government of Sri Lanka hadproposed to enter into an agreement with a US basedcompany, Freeport Mac Moran Resource Partners,to mine the entirety of Sri Lanka’s known phosphatedeposits located in Eppawela in the north centralprovince, a heavily agricultural area. According tothe agreement, the deposits, which at the currentrate of use were estimated to last the country for200 years, would be mined and exported within aperiod of 30 years. The process of mining andprocessing the phosphate would have had severedetrimental impacts on the environment, the peopleof the area and the country as a whole. Severalthousand people were to be displaced from theirtraditional lands as a result of this project. It wasalso established that an environmental impact

an expanded interpretation of the constitutionalprovision in question. As discussed below, these havemet with limited success.

The following discussion on Article 12 and otherfundamental rights provisions of the Constitutionwill demonstrate that the Court has not beenconstrained by their limited scope in interpretingconstitutional rights to address issues ofenvironmental justice and to define equitabledevelopment paradigms. It will analyse in particularthe strategies of the Court in extending these rightsto the public at large in the context of developmentissues.

3THE RIGHT TO EQUALITY

Unlike the Constitutions of some South Asiancountries such as India, Pakistan and Bangladesh,the Sri Lankan Constitution does not contain a rightto life provision. This has undoubtedly inhibited theSri Lankan Supreme Court in developing amomentous body of case law similar to that hasevolved in these other countries in the last twodecades. It can be argued, however, that the SriLankan Supreme Court has used the equalityprovisions in Article 12 of the Constitution todeliver judgements which have defined human rightsincluding environmental rights, and developmentalpolicies of the State, in much the same way as theright to life provisions of these other countries havebeen used.

Article 12(1) of the Constitution states that, “Allpersons are equal before the law and are entitled tothe equal protection of the law.” Therefore thereare two elements contained in the provision, namelythe right to equality or non-discrimination, and theright to the equal protection of the law. A notableproportion of the fundamental rights cases filedbefore the Supreme Court have been on the basis ofthe violation of this Article.

A discussion of the general development of thejurisprudence on Article 12 is beyond the scope of

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30 See Perera (n 25); Seneviratne v The University GrantsCommission (1978-79-80) 1 Sri L R 182; Ramupillai v TheMinister of Public Administration, Provincial Councils andHome Affairs (1991) 1 Sri L R 11 [‘Ramupillai’];Palihawadana v The Attorney General and Others (1978-79-80) 1 Sri L R 65 [‘Palihawadana’].

31 (2000) 3 Sri L R 243 [‘Eppawela’].

assessment under Sri Lankan law had not beencarried out on the project.32

The Environmental Foundation Ltd (EFL) decidedto challenge this project and opted to do so as afundamental rights application to the SupremeCourt. As part of the legal strategy, and due to therestrictive application of locus standi in regard tofundamental rights applications at the time, thelawyers of EFL who filed the case did so in the namesof residents of the area who could claim that theywould be materially affected by the project and couldtherefore present themselves as petitioners. ThePetitioners argued that the proposal constituted animminent infringement of their rights includingunder Articles 12(1) of the Constitution.33

At the outset the Court considered the question as towhose rights were violated by the proposed projectand took an expansive view of this matter, noting that:

The court is concerned in the instantcase with the complaints of individualpetitioners. On the question ofstanding, in my view, the petitioners,as individual citizens, have aconstitutional right given by Article17 read with Article 12 and 14 andArticle 126 to be before this court.They are not disqualified because it sohappens that their rights are linked tothe collective rights of the citizenry ofSri Lanka - rights they share with thepeople of Sri Lanka. Moreover, in thecircumstances of the instant case, suchcollective rights provide the contextin which the alleged infringement orimminent infringement of thepetitioners’ fundamental rights oughtto be considered. It is in thatconnection that the confidentexpectation (trust) that the Executivewill act in accordance with the law and

accountably, in the best interests of thepeople of Sri Lanka, including thepetitioners, and future generations ofSri Lanka, becomes relevant.34

In this instance, therefore, the Court, whileconsidering the rights of the seven petitioners beforeit, also linked their rights to the collective rights ofthe people of Sri Lanka including future generations.It further expanded on this argument in itsdetermination as to whether the Petitioners’ rightsunder Article 12 had been violated. It noted that theproposed agreement was heavily biased in favour ofthe company concerned and ‘is so framed that itgenerously strengthens, assists, supports, aids andabets the Company’s designs’, includingcircumventing the requirement for anenvironmental impact assessment under theNational Environmental Act.35 The terms of theagreement also enabled the company to avoid thecost of the environmental damage that wouldinevitably be caused by the proposed project, whichcost would be borne by the general communityeither through reduced environmental quality orincreased taxation to finance mitigation measures.Interestingly, the Court held that for these reasons,the proposed agreement seeks to circumvent the law‘and its implementation is biased in favour of thecompany as against members of the public, includingthe Petitioners’ (emphasis added).36 The Courttherefore upheld the Petitioners’ claim that therewas an imminent infringement of their fundamentalrights under Article 12(1) of the Constitution.

The notion that the right to equal treatment andequal protection of the law can be extended to thegeneral public as against the State, an individual, orother entity was reinforced in a case concerningnoise pollution.37 In this case, the failure of a

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32 Camena Guneratne ‘The Eppawela Phosphate MiningProject – Breaking New Ground in Natural ResourcesManagement’ (2000) 5/3 Asia Pacific Journal ofEnvironmental Law 275.

33 Since the agreement had not been signed at the time offiling the case the infringement had not actually taken place.

34 Eppawela (n 31) 258.35 National Environmental Act No 47 of 1980 as amended

in 1988 and 2000.36 Eppawela (n 31) 318.37 Al Haj M T M Ashik and Four Others, Trustees of the

Kapuwatta Mohideen Jumma Mosque, Denipitiya,Weligama v R P S Bandula, Officer in Charge Weligamaand Nine Others (2007) Supreme Court of Sri LankaFundamental Rights Application No 38/2005(unreported) <www.island.lk/2007/11/10/news9.html>accessed 20 August 2015.

government agency to promulgate regulations togovern noise pollution was deemed to be a violationof the rights of the general public to the equalprotection of the law.

The trustees of a mosque filed a fundamental rightsapplication in the Supreme Court claiming aviolation of Article 12 on the basis that the police ofthe area had imposed restrictions on the use of loudspeakers in their mosque, while two other mosquesin the area had been granted loudspeaker permits.The Court, noting that the application raises issuesof sound pollution, which were causing annoyanceand disturbance to the people in the vicinity, directedthe Central Environmental Authority to promulgateregulations to govern noise pollution. However,after a period of two years, the Authority had failedto do so. Subsequently, a non-governmentalorganisation and an individual were permitted tointervene in the case, representing the interests ofthe public at large to be protected from the harmfuleffects of noise pollution. The Court observed:

With the inclusion of the aforesaidparties, and considering the materialpresented and the submissions thatwere made the Court proceeded withthe matter as being of public interest,to make a determination as to theeffective guarantee of the fundamentalright enshrined in Article 12(1) of theConstitution for the equal protectionof the law in safeguarding the Peoplefrom harmful effects of noisepollution. The impact of pollution ispervasive and its effect cannot beidentified with the right of anyparticular person. The matter has tobe viewed as being of general andpublic concern affecting the communityas a whole (emphasis added).38

The Court went on to hold that:

There is no dispute in this case thatPeople have been denied the equalprotection of the law by the failureof the executive to establish by way

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of regulations an effective legal regimeas mandated by Section 23P of theNational Environmental Act No.47of 1980, as amended by Act No.56 of1988 to safeguard the public from theharmful effects of noise pollution.The facts also reveal that there are noguidelines for the effectiveimplementation of the applicableprovisions of law so as to provide tothe people equal protection of the lawguaranteed by Article 12(1) of theConstitution.39

In both these cases, the petitions were filed byindividual petitioners, who were alleging a violationof their own rights under Article 12. These caseswere not filed as public interest petitions on thegrounds that the public was affected, though in thesecond case the Petitioner company was permittedto intervene on this basis. Nevertheless, in bothcases, the Court held that the rights that were beingviolated by reason of environmental degradation ornoise pollution were not limited to that of thepetitioners before it, but constituted a violation ofthe rights of the people,40 thus expandingdistributive justice beyond individuals andcommunities.

3.2 Substantive Innovations - ThePrinciple of Arbitrary Action

Early cases, which set out the initial interpretationsof what constitutes a violation of Article 12, reliedon the traditional doctrine of reasonableclassification in order to define discriminatorytreatment of a petitioner.41 Equality was interpretedto mean that those who are alike must be treatedalike, and therefore those who are placed in similarcircumstances must have the same rights and besubject to the same duties and liabilities.42

80

38 ibid.

39 ibid.40 In fact, in the latter case, the Petitioners themselves were

deemed to be violating the rights of the public.41 Palihawadana (n 30).42 The Court expanded the definition of reasonable

classification to address situations of formal andsubstantive quality, thus validating the implementationof affirmative action. See Ramupillai (n 30).

Notwithstanding an initial reluctance,43 the Court,following the lead of the Indian Supreme Court,subsequently expanded the boundaries of equalityto encompass the doctrine of arbitrary action.44 TheIndian decisions have held that arbitrariness is theantithesis of equality and essentially hostile. Anarbitrary act is implicitly discriminatory and singlesout an individual for differential treatment violatingthat individual’s right to equal protection of thelaw.45 In applying this argument, the Sri LankanSupreme Court has held that it is not necessary tomake a comparison between a petitioner and anyother person in order to determine whether theformer has been treated unequally.46 Therefore anaction that is clearly unreasonable and arbitrarycould constitute discrimination under Article 12even though the petitioner cannot establish that anyother person has been treated differently.

The following judgements illustrate how the Courthas implemented this principle in cases concerningissues of environment and development. It isnoteworthy that in these cases too, the Court hasextended the principle to hold that such action mayviolate the rights not only of the petitioner beforethe Court, but also that of the general public. TheCourt has also upheld the principle in situationswhere the petitioners did not claim to be directlyand materially affected by the action in question.

The case of Environmental Foundation Ltd v UrbanDevelopment Authority of Sri Lanka and Others47 (theGalle Face case) was an early case where thePetitioners claimed that arbitrary action in the

course of a development project violated their rightto equality and the equal protection of the law. ThePetitioner was an incorporated company, a non-profit organisation working in the area ofenvironmental protection. It filed this case againstthe Urban Development Authority (UDA) inrespect of a historic public promenade in Colomboknown as the Galle Face Green, which the UDAwas proposing to lease to a private company, whichwould convert it into a mega entertainment andleisure park, restricting free access by the public. ThePetitioner had written to the UDA and the privatecompany requesting details of the agreement, whichrequest was refused. The Petitioner contended thatthe refusal amounted to an arbitrary exercise ofpower in the absence of specific reasons thatsupported such refusal. This argument was upheldby the Court, which stated:

The UDA is here purporting to exercisestatutory power. It has held out in publicationP5 that a very transparent transaction hasbeen entered into in respect of Galle FaceGreen with [the private company] with allnecessary safeguards to preserve and protectthe public interest. Since the transactionentered into and the publication constitute apurported exercise of power, the arbitraryrefusal of information required by thePetitioner is an infringement of thePetitioners’ fundamental rights guaranteed byArticle 12(1) of the Constitution.48

The Court also overruled an objection of theRespondents that the Petitioner company was notentitled to the protection of the constitutionalprovisions as it is not a natural person. The judgeheld ‘in my view the word “persons” as appearingin Article 12(1) should not be restricted to “natural”persons but extended to all entities having legalpersonality.’49 In the earlier Eppawela case, thisargument was further extended to hold that thoseentitled to claim a violation of Article 12 includesnot only identifiable individuals or evencommunities, but also the general public and theentire citizenry of Sri Lanka.50

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43 See Elmore Perera v Minister of Public Administration(1985) 1 Sri L R 285.

44 See the Indian cases of Royappa v State of Tamil NaduAIR 1974 SC 555; Maneka Gandhi v Union of India AIR1978 SC 597; Ramana v International Airport AuthorityAIR 1979 SC 1628; Ajay Hasia v Khalid Mujib AIR 1981SC 487.

45 Royappa (n 44).46 In Jayasinghe v The Attorney General and Others (1994) 2

Sri L R 74, it was stated that ‘While generally it isnecessary to prove that other persons, similarlycircumstanced, have been differently treated in order toestablish a denial of equal treatment, this is not aninflexible principle of universal application.’

47 Supreme Court of Sri Lanka (2005) Supreme CourtFundamental Rights Application No 47/2004(unreported) [‘Galle Face’].

48 ibid 7.49 ibid 8.50 Eppawela (n 31) 262.

The principle of arbitrary action was reinforced inthe later case of Environmental Foundation Ltd v TheMahaweli Authority of Sri Lanka.51 The Petitionercompany challenged the lease of land inenvironmentally sensitive and protected areas by theRespondent Authority which had also grantedpermission to the lessees to construct buildings onthe lands. The Petitioner company argued that it wasbringing the action in the public interest andcomplained of a violation of Article 12(1) of theConstitution. The Court found that the lease was incontravention of the relevant laws, as the lands fellwithin a sanctuary created under the Fauna andFlora Protection Ordinance,52 and were also withinthe 100 metres reservation of a protected area. TheCourt also found that an environmental impactassessment was not done under the NationalEnvironmental Act as required for such a project.

The articulation of the judgement is interesting.Having found that the alienation of the lands was incontravention of the law, the judge observed:

From the aforesaid, it is clear that thealienation of the lands and the grantingof permission to construct houses inthe lands which are the subject matterof this application have been done inviolation of the applicable laws andregulations in an arbitrary manner bythe 1st Respondent Authority therebyviolating Article 12(1) of the Constitution.

Due to the above reasons, I hold thatthe 1st Respondent Authority hasviolated Article 12(1) of the Constitutionby (i) alienation and (ii) granting ofpermission to construct houses inrespect of the lands which are thesubject matter of this application.

It is noteworthy that in this dictum there is noindication as to whose rights have been violated bysuch arbitrary action. Further, in both cases

discussed, the Petitioner company did not claim tobe materially affected by the alienation of the GalleFace Green or the protected areas, and merely statedthat it was filing the action in the public interest. Inits final order in the Mahaweli Authority case theCourt did state: ‘The 1st Respondent has violatedthe fundamental right to equality and equalprotection of the law as guaranteed to the Petitionersby Article 12(1) of the Constitution.’53 Neverthelessit appears that in cases of public interest as opposedto individual rights, where executive action is heldto be arbitrary, the Court will not insist on anidentified victim of the violation. The mere fact thatexecutive action is arbitrary will bring it within theambit of Article 12, on the premise that the rightsof the general public have been violated. In effect,the rule of locus standi, which requires a petitionerto show that he or she was materially and directlyaffected, has been relaxed. The Court is effectivelyaddressing issues of corrective justice inenvironmental and developmental matters.

3.3 Application of Article 12(1) toLegislative Review

The application of Article 12 to the general publichas not been limited to executive action but has beenused in the process of legislative review.54 Thisconstitutional provision has been invoked in severalactions challenging proposed laws that potentiallyimpact upon issues within the sphere ofenvironmental and developmental justice and thehuman rights of the people. An early example ofsuch litigation is that on the Intellectual PropertyBill.55 The Petitioners contended that severalprovisions in the Bill were inconsistent with Article12(1) in that they permitted the grant of a patent fora period of 20 years in respect of products and

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51 Supreme Court of Sri Lanka (2010) Supreme CourtFundamental Rights Application No 459/2008(unreported) [‘Environmental Foundation’].

52 Fauna and Flora Protection Ordinance No. 2 of 1937 asamended.

53 Environmental Foundation (n 51) 21.54 Constitution (n 9) art 120 provides that the Supreme

Court shall have sole and exclusive jurisdiction todetermine any question as to whether any Bill or partthereof is inconsistent with the Constitution.

55 Supreme Court Special Determination No.14/2003 onthe Intellectual Property Bill (unreported) (2003)<www.elaw.org> accessed 16 July 2015 [‘IntellectualProperty Bill’]. See also Malcolm Langford (ed), SocialRights Jurisprudence: Emerging Trends in International andComparative Law (Cambridge University Press 2009) 137.

Article 12.58 The Bill sought to regulate water servicesand to empower the State to grant licenses to serviceproviders who would connect, provide and maintainwater services to consumers within the area in respectof which a license would be granted. In effect theBill sought to permit the privatisation of waterservices that had been within the exclusivejurisdiction of the State. The Petitioners argued thatwater services would be provided to consumers onthe basis of an agreement entered into with a licenseeon commercial terms. The provisions of the Bill thatvest specific powers weighted in favour of the licenseewithout adequate provision to safeguard the interestsof consumers would amount to a violation of the rightto equality. They also argued that the Bill does notcontain any directions, guidelines, or statement ofprinciples or priorities in respect of the distributionof water, either under normal conditions or in timesof scarcity, nor does it distinguish between differentclasses of consumers. Therefore the Bill has the effectof treating unequally placed persons as if they wereequals and is inconsistent in its entirety with Article12(1) of the Constitution. Having cited internationalsstandards on the right to water, the Petitioners furtherargued that in as much as water is a commodity essentialto life, an adequate supply of water at an affordableprice is also a pre-requisite for the enjoyment of allother fundamental rights. Therefore the State isabdicating its duty to respect, secure and advance thefundamental rights of the people, and the said Bill inits entirety is inconsistent with the provisions ofArticle 3 read with Article 4(d) of the Constitution.59

While this argument could validly have been broughtwithin the purview of the current interpretation ofArticle 12, unfortunately, the Court refrained fromruling on this issue, although the Bill was held to beunconstitutional on other grounds.

3.4 Balancing the Rights ofIndividuals and the Public

Several cases reflect the proclivity of the court toprioritise the interests of the general public over

processes, giving the patent holder exclusive rightsover the patented invention. These provisions readwith Articles 3 and 4 of the TRIPS Agreement56

would prevent the government of Sri Lanka fromaccording to its own citizens and corporate entitiesany protection or privileges that are not granted toforeign persons or corporate entities, and wouldallow the foreign patent holders of any product orprocess, (including medicinal drugs and the processesfor their manufacture), to control the supply andprice of such drugs in the Sri Lankan market. Theconsequent increase in the prices would affect theability of Sri Lankan citizens to obtain medicines atthe cheapest available price and from a source oftheir choice. This is in effect discrimination againstthe people of Sri Lanka who are in an unequalposition vis-à-vis foreign patent holders. ThePetitioners drew attention to the consequences onthe health of people in developing countries ofadhering to the TRIPS Agreement and further,pointed out that mitigatory measures present in theTRIPS Agreement had not been included in the Bill.

The Court agreed that:

the provisions of the TRIPS Agreementwould be applicable to countries developedas well as developing, which cannot betreated as equals. Article 12(1) of the SriLanka Constitution not only guaranteesequality before the law, but also provides forthe equal protection of the law. It is wellsettled law that just as much as equals shouldnot be placed unequally, at the same timeunequals should not be treated as equals.57

As in the stand taken by the Court in the Eppawelacase, it was in effect holding that the Sri Lankanexecutive was discriminating against its own citizensvis-a-vis foreign companies.

The judgment on the determination of theIntellectual Property Bill was relied upon bypetitioners in a subsequent challenge to theconstitutionality of the Water Services ReformBill on the grounds of inconsistency with

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56 See TRIPS Agreement <www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm> accessed 6 March 2015.

57 Intellectual Property Bill (n 55) 4.

58 Supreme Court Special Determination No 24/2003 and25/2003 on the Water Services Reform Bill (unreported)(2003).

59 Written submissions in Supreme Court SpecialDetermination No 24/2003 (on file with the author).

those of individuals who claim that their rights havebeen violated. In the case of Vishwanath v DivisionalSecretary, Madhurawala and Others,60 the Petitionerhad been granted a permit for quarry blasting. Thepermit was subsequently rescinded due to protestsby the surrounding community, which alleged thatit would have adverse effects on the environmentand on their personal security. The Petitioner wasrequested to cease operations until an inquiry wasinstituted. By the time the inquiry committeedecided that it had no objections to the operations,the permit had expired. Subsequently, the relevantstate agencies refused to renew the permit. ThePetitioner contended that his rights under Article12(1) had been violated. The Court agreed thatArticle 12(1) embodies a guarantee againstarbitrariness in the decision making process, butnoted that in making that decision it had to considernot only the grievances of the Petitioner but alsothose of the surrounding community. Continuousassessment and monitoring is a necessary aspect ofissuing and renewing permits, and subsequent publicprotests about the adverse impacts of the operationsmust be taken into account when doing so. TheCourt therefore held that the action of the relevantagencies in refusing to renew the permit was notarbitrary and did not constitute a violation of Article12(1).61

The Court has also held that even though the rightsof individuals under Article 12 may be violated, theinterests of development must override such rights.However, in such instances the individuals must beadequately compensated. The case of Heather ThereseMundy v The Central Environmental Authority andOthers62 concerned the construction of the SouthernExpressway, a highway that would connect thecapital city of Colombo with Matara in the south.The Appellants argued that the CentralEnvironmental Authority (CEA) had not followedproper procedures in granting approval for the

project in as much as subsequent changes to the routeof the highway had been approved without noticeto affected persons.63 The Appellants had originallyfiled action in the Court of Appeal under its writjurisdiction64 to quash the approval granted for theproject by the CEA several years earlier, insofar asit purported to approve a route not described in theEnvironmental Impact Assessment Report (EIAR),and to direct the CEA to call for a supplementaryEIAR from the project proponent (the RoadDevelopment Authority), in accordance with theprescribed procedures. The Court of Appeal hadheld that the highway was “an absolute necessity”and formulated four issues to be determined, one ofwhich was “Whether - where the wider publicinterest is at stake - the Court has the discretion indeciding whether to grant or refuse the remedy [byway of writ] even if the impugned decision affectscertain individuals.” The Court of Appeal had statedthat:

...Courts have to balance the right todevelopment: and the right toenvironmental protection. Whiledevelopment activity is necessary andinevitable for the sustainabledevelopment of a nation,unfortunately it impacts and affectsthe rights of private individuals, butsuch is the inevitable sad sacrifice thathas to be made for the progress of anation. Unhappily there is no publicrecognition of such sacrifice which ismade for the benefit of the largerpublic interest which would be betterserved by such development. TheCourts can only minimize andcontain as much as possible the effectto such rights... 65

The Court of Appeal went on to dismiss the writapplications on the basis that:

[When balancing the competinginterests] the conclusion necessarily

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60 (2006) 1 Sri L R 369 (Supreme Court).61 See also Wattegedera Wijebanda v Conservator General of

Forests (2007) Supreme Court Application No 118/2004(unreported).

62 (2004) Supreme Court Appeal No 58/2003 (unreported)<www.elaw.org/content/sri-lanka-mundy-vs-central-environmental-authority-and-others-sc-appeal-582003-decided-20-ja > accessed 22 August 2015 [‘Mundy’].

63 The changes to the route were done in order to preventdamage to wetlands.

64 Court of Appeal Application No 688/2002 (unreported).65 Mundy (n 62) 12.

has to be made in favour of the largerinterests of the community whowould benefit immensely by theconstruction of the proposedexpressway ... the adoption of theCombined Trace would undoubtedlyresult in irreversible damage to theeco-system in the Bolgoda Wetlandarea. Therefore the only option is toadopt the Final Trace which ... willresult only in the displacement ofaffected people in that area ... theobligation to the society as a wholemust predominate over the obligationto a group of individuals, who are sounfortunately affected by theconstruction of the expressway.66

On appeal, the Supreme Court held that thedeviations in the route were in fact alterations, whichrequired the approval of the CEA. Before suchapproval was granted, the Appellants were entitledto be noticed and heard in respect of such alterationswhich materially affected them, and an omission todo so constituted a violation of their rights underArticle 12(1). While the Supreme Court did notoverrule the decision of the Court of Appeal, it heldthat the Court of Appeal erred in refusing relief inthe exercise of its discretion. The Supreme Courtheld that:

Although the Court of Appealseemed to agree that the rights of theAppellants had been infringed, thattheir sacrifice had not been dulyrecognized, and that the Court shouldminimize as much as possible theeffect on their rights, nevertheless itfelt obliged to choose between twooptions only: to grant relief or todismiss the applications. The Courtdid not take note of the impact of thefundamental rights on its writjurisdiction. While the circumstanceswere such that the Court could

reasonably have concluded that, onbalance, the Final Trace should be leftundisturbed, … it was only equitablethat the Appellants should have beencompensated for the injury to theirrights. … If it is permissible in theexercise of a judicial discretion torequire a humble villager to forego hisright to a fair procedure before he iscompelled to sacrifice a modest plotof land and a little hut because theyare of “extremely negligible” value inrelation to a multi-billion rupeenational project, it is nevertheless notequitable to disregard totally theinfringement of his rights: the smallerthe value of his property, the greaterhis right to compensation.67

These cases raise some interesting issues. To beginwith some rights including Article 12guaranteed inthe Constitution are not absolute and are subject torestrictions. These include “meeting the justrequirements of the general welfare of a democraticsociety.”68 The Constitution thus envisages thatindividual rights may be balanced against the publicgood. While the Court did not expressly cite thisprovision in any of these cases, the facts demonstratethe complexity of the competing interests before acourt when ruling on matters of environment anddevelopment, and in determining whose interestsshould be prioritised in ensuring environmentaljustice. These cases indicate that the tendency of theCourt is to tip the scales in favour of public interestover that of the individual in instances of bothenvironment protection and the process ofdevelopment, and even where the Court has agreedthat the petitioner’s rights under Article 12 havebeen violated, the right may still be subsumed bythe greater good. However, as shown in the SouthernExpressway case, the Court has also attempted tokeep the balance even as far as possible and has heldthat those affected must at least be adequatelycompensated for their sacrifice

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66 ibid.67 ibid 15.68 Constitution (n 9) art 15(7).

4OTHER CONSTITUTIONAL RIGHTS -THE RIGHT TO OCCUPATION ANDFREEDOM OF MOVEMENT

While much of the jurisprudence dealing with anddefining issues of environmental justice concernArticle 12, several other constitutional provisionshave been relied on in cases where interests ofenvironment and development have been contested.These include Articles 14(1)(g) and 14(1)(h), whichguarantee the right to engage oneself in a lawfuloccupation, and the right to freedom of movementand to choose one’s residence within Sri Lankarespectively. They have been cited in several caseschallenging development projects, or activitiesharmful to the environment or to the generalcommunity. These two rights may be compared tothe conceptualisation of environmental justice in theUS, which is focused on the rights of individuals andcommunities to live in their immediate environmentfree of pollution and waste.

Many of the cases filed under Article 14 could alsohave been litigated on the basis of public nuisance,since the petitioners were complaining ofinterference with their rights to peaceful andundisturbed occupation of their homes and theirland, and also to interference with their legitimatelivelihoods. However, in several cases, the lawyersopted to use the constitutional rights, particularlywhere the project in question had potentialramifications for the wider community or thecountry. In fact, in two similar instances of quarryblasting operations that had serious negative impactson the surrounding community, while one wasinstituted as a public nuisance action,69 the otherwas instituted as a fundamental rights application,citing Articles 14(1)(g) and (h) of the Constitution.70

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Similarly, in the case of Deshan Harinda,71 theplaintiffs who were minor children claimed that theoperation of a power plant that causedenvironmental and health problems infringed theirrights under Articles 14(1)(g) and (h). This case toocould have been filed as a public nuisance action,but was litigated under the constitutional provisionsas a “test” case. However, in both these cases, theCourt refrained from making a ruling and ordereda settlement.

A definitive ruling was made on these constitutionalprovisions in the Eppawela case where thePetitioners claimed that they were in danger of losingthe whole or some portion of their lands and theirmeans of livelihood if the proposed mining projectwas implemented. The seventh petitioner who wasthe Viharadhipathi (Chief Monk) of the GalkandaPurana Viharaya (ancient temple) where he hadresided for over 35 years, stated that the Viharayaand the agricultural lands that sustain it were indanger of being destroyed if the proposed miningproject was implemented. All the Petitioners claimedan imminent infringement of their rights underArticles 14(1)(g) and (h) which was upheld by theCourt. In this case, the Court specifically cited theconstitutional restrictions on the exercise andoperation of certain fundamental rights including‘meeting the just requirements of the general welfareof a democratic society.’72 However, in contrast tothe Mundy case, in this case the learned judge foundin favour of the affected individuals, observing: ‘Inthe light of the available evidence, I am notconvinced that the proposed project is necessary tomeet such requirements.’73 In this instance, thebalance between individual rights and the publicgood was weighted in the Petitioners’ favour.

69 See Keangnam Enterprises Ltd v E A Abeysinghe and ElevenOthers (1994) 2 Sri LR 172 (Court of Appeal), where theorder of the Magistrate’s Court issuing an injunction restrainingoperation of the petitioner’s quarry was heard on appeal.

70 Environmental Foundation Ltd v The Attorney Generaland Others (1991) Supreme Court Application No 128/1991 (unreported) [‘Nawimana’].

71 A V Deshan Harinda (a minor) and Four Others v CeylonElectricity Board and Six Others (1997) Supreme Court ofSri Lanka Fundamental Rights Application No 323/1997(unreported) [‘Deshan Harinda’].

72 Eppawela (n 31) 320.73 ibid.

5INFERRING RIGHTS NOT CONTAINEDIN THE CONSTITUTION

The right to information or freedom of informationis not guaranteed either by constitutional provisionsor by statute.74 Nevertheless, in the Galle Face case75

discussed above, the Supreme Court took the viewthat in order for the freedom of speech guaranteedunder Article 14(1)(a) of the Constitution to bemeaningful and effective, it should carry within itsscope an implicit right of a person to secure relevantinformation from a public authority in respect of amatter that should be in the public domain.According to the Court, the Urban DevelopmentAuthority being an organ of the Government hasan obligation to ensure that a person couldeffectively exercise this right and its denial of accessto official information amounted to an infringementof the Petitioner’s fundamental rights under Article14(1)(a), and also to a violation of the Petitioner’sright to equality guaranteed under Article 12(1). Itis also a violation of the rights of the Petitioner, andthe general public, to procedural justice as an aspectof environmental justice.

It should be noted that in the Eppawela case, theSupreme Court, citing Principle 10 of the RioDeclaration, had earlier held that access toinformation on environmental issues was ofparamount importance.76 Environmental impactassessment laws of Sri Lanka make provision forpublic comments on the EIA report and the Courttook the view that failure to prepare one, reinforcedby the confidentiality provision of the proposedagreement, effectively excluded public awareness andparticipation, as contemplated by the Sri Lankanlegislature, as well as by Principle 10 of the RioDeclaration. In the view of the Court, this amountedto a violation of Article 12.

6RE-DEFINING EXISTING RIGHTS

There have been instances where lawyers haveattempted(to date unsuccessfully)to interpret specificrights in the Constitution to widen the scope ofenvironmental justice. They have particularlyattempted to do so in regard to Article 11, whichprovides protection from “cruel, inhuman anddegrading treatment.”77 A large proportion offundamental rights cases filed in the Supreme Courthave been based on violations of this provision wherepetitioners have alleged torture at the hands of Stateofficials, including members of the police and thearmed forces. The Constitution does not define whatwould amount to torture or cruel, inhuman anddegrading treatment, and it has been left to the Courtto interpret the provision. Environmental lawyershave argued that the constitutional protection fromtorture should be expanded to situations beyondwhat was envisaged by the drafters of theConstitution, and the term “cruel, inhuman anddegrading treatment” in Article 11 includes beingsubjected to a polluted and degraded environment.

The early definitions of torture were restrictive. Inde Silva v Chairman, Ceylon Fertilizer Corporation,78

torture was defined as any act by which severe painor suffering is, without lawful sanction inflicted ona person for a particular purpose, which may includeextracting information or a confession, supposedlyfor an official purpose. The phrase “cruel, inhumanand degrading treatment” has also been given arestrictive definition by the Court which held thatwhether the treatment in question would comewithin this definition or not would depend on thecharacteristics of the victim and the circumstancesof the case.79

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74 The 19th Amendment to the Constitution passed on 28April 2015 now contains a provision guaranteeing theright to information.

75 Galle Face (n 47).76 Eppawela (n 31) 316.

77 Constitution (n 9) art 11 reads: “No person shall besubjected to torture or to cruel, inhuman or degradingtreatment or punishment.”

78 (1989) 2 Sri L R 393 [‘de Silva’].79 Wijayasiriwardene v Kumara, Inspector of Police, Kandy

and Two Others (1989) 2 Sri L R 312; de Silva (n 78);Channa Pieris and Others v Attorney General and Others(1994) 1 Sri Lanka Law Reports 1.

In an attempt to expand the circumstances wheresuch treatment can take place, petitioners filed casesconcerning environmental degradation, whichadversely impact on individuals. In the Nawimanacase,80 an application was made under Article 126of the Constitution, alleging, inter alia, the violationof Article 11. In this case, the 2nd to 21st Petitionerswere residents of villages in the south of Sri Lankawho claimed to be suffering serious injury as a resultof large scale quarry blasting operations in thevicinity of their villages. They alleged that theoperations posed a serious threat to their lives andproperty, including that children were sufferingfrom both physical and psychological problems, thehearing of residents was affected, there was structuraldamage to houses, and damage to the water table inthe area causing wells to dry up. The Respondentsincluded a public official who had renewed thelicense for the quarry without giving the Petitionersa hearing, and who had also failed to regulate theblasting.

As noted above, the circumstances of this case wereappropriate for filing a public nuisance action.However, lawyers for the Petitioners opted to file afundamental rights case under Article 126 as a testcase to determine, among other things, whether theCourt would expand the definition of “cruel,inhuman and degrading treatment” in this manner.The strategy did not succeed as the Court orderedthe parties concerned to negotiate a settlement bywhich the blasting operations would be regulatedso as to minimise the impacts on the surroundingpeople, and did not issue a definitive judgement onthe issue.

In the case of Deshan Harinda81 too, the lawyersattempted to expand the definition of cruel inhumanand degrading treatment to encompass adverseenvironmental conditions. In this case the petitionerswho were minor children claimed that a powergenerating station run by a private company withthe agreement of the Ceylon Electricity Board (aState institution), caused a hazard to their lives andhealth. They argued that they were subjected tounbearably high levels of noise for long periods,

which caused hearing problems, headaches and lossof sleep. The emission of harmful gases such ascarbon dioxide, carbon monoxide and sulphurdioxide caused respiratory problems and, as theywere very young children, these conditions couldhave serious impacts on their physical and mentaldevelopment. They further argued that the constantemanation of noise, vibration and fumes amountedto cruel, inhuman and degrading treatment andviolated their rights under Article 11of theConstitution.

While the case was pending the power plant ceasedoperations and the Petitioners agreed to withdrawthe case. Once again the Court did not make a rulingas hoped, on a wider definition of what constitutedcruel, inhuman and degrading treatment. Thereforethe matter remains unresolved to date.

7CONCLUSION

The fundamental right provisions of the Sri LankanConstitution are limited, both substantively andprocedurally. Substantively, they cover only civiland political rights. As regards procedure, thelimitations on standing restrict petitioners to thosewho can claim that they have been materiallyaffected by the action in question, which must beState action. Nevertheless, within this narrow ambit,the Sri Lankan Supreme Court has interpreted thefundamental rights provisions to re-define andsubstantially expand the substance and scope ofenvironmental justice. Conversely, litigation onmatters of environment and development hascontributed in no small measure to the developmentof fundamental rights jurisprudence in Sri Lanka.

As in the US, the Sri Lankan Supreme Court haspremised the concept of environmental justice onprinciples of equality and non-discrimination, andits evolution in the context of the constitutionalprovisions is closely linked to the interpretation ofArticle 12, including non-discrimination, the equalprotection of the law and the principle of arbitraryaction. However, the Sri Lankan Supreme Court has

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80 Nawimana (n 70).81 Deshan Harinda (n 71).

pushed the boundaries of this argument to a muchgreater extent and both these aspects have been usedto argue that it is not only the aggrieved partiesbefore the Court whose rights to environmental anddevelopmental justice have been violated, but alsothe rights of a community, the public or the nation.Further, the concept has not been confined tochallenging issues of pollution and waste, but hasbeen used to review all aspects of the developmentmodel and processes.

It must be noted however, that in spite of thejurisprudence discussed above, the Court doesremain constrained by the narrow constitutionalframework within which it has to function..Although the equality provision in the Sri LankanConstitution has been creatively interpreted in muchthe same way as the right to life provisions inneighbouring countries of the region to considerenvironmental and developmental issues, this doesnot mean that this clause alone can provide the solebasis on which complex problems of human rights,environment and development can be determined.There is an urgent need to re-draft the fundamentalrights chapter of the Constitution to includejusticiable social and economic, as well asenvironmental and developmental rights, includingsuch basic rights as those to food, water, shelter,health and education, as well as the right to a cleanand healthy environment. Although the equalityprovision has been used expansively to encompassissues of environment and development, it isdoubtful whether the boundaries could be pushedmuch further to address these more specific rights.The narrow scope of the current provisions onfundamental rights, including the absence of a rightto life provision, would be an obstacle in doing so.

The last attempt at constitutional reform that tookplace in the year 2000 did not include these categoriesof rights except in very limited terms.82 A draftConstitution which to date has not been enactedincludes the right to life,83 but there is no mention

of the right to a clean and healthy environment.Article 25 of the draft Constitution entitled “socialrights” states that every citizen has the right to haveaccess to, inter alia, sufficient food and water, butthe obligation of the State is merely to takereasonable legislative and other measures within itsavailable resources with a view to achieving theprogressive realisation of these rights. Obligationsof the State in relation to environmental protectionand ensuring an adequate standard of living for itscitizens in all its aspects have again been relegatedto a chapter on Principles of State Policy andFundamental Duties, which do not give rise to legalrights and are not enforceable in a court. Theseprovisions are over a decade old, and a new draftmust necessarily reflect new perspectives oneconomic and social rights, including environmentand sustainable development.

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82 See Government of Sri Lanka, Draft Bill (No 372) torepeal and replace the Constitution of the DemocraticSocialist Republic of Sri Lanka <www.priu.gov.lk/Cons/2000ConstitutionBill/Index2000ConstitutionBill.html>accessed 5 May 2015.

83 ibid art 8(1).

LEAD Journal (Law, Environment and Development Journal) is jointly managed by theLaw, Environment and Development Centre, SOAS University of London

soas.ac.uk/ledcand the International Environmental Law Research Centre (IELRC)

ielrc.org