Focus on Rights

Future development in Sri Lanka - strict priorities needed for environmental protection
The ravages caused by the tsunami in Sri Lanka have been limited to the coastal belt but what happened on Sunday, December 26, 2004 is a salutary lesson for this country in regard to the mischief that is brought about when fundamental norms of environmental protection are disregarded. Insofar as the tsunami itself was concerned, as opined by international experts throughout the preceding weeks, the damage both to humans and to the environment may have been much less if the natural defence cover of the coastlines had been protected and expanded instead of allowing it to be systematically stripped by developers and hotel owners throughout the many decades.

Currently, though the Government has said that it would strictly enforce the three hundred metres prohibition of any development activity within the coastal zone as measured from the mean high water line, the manner in which such a prohibition will operate is yet unclear. The applicable law as mandated by the Coast Conservation Act, No 57 of 1981 (as amended) and subordinate documents such as the Coastal Zone Management Plan has to be applied strictly with ministerial discretion thereto being subject to rigorous standards of accountability. In the past, casual visitors to the coast could have seen for themselves, the pattern of haphazard building activity on the coastline. This has to be stopped forthwith.

The overall burden to ensure that the norms of sustainable development are met in the re-building process rests not only with the government and domestic political actors but also with the donors. The latter has a positive duty vested in them to ensure that the rebuilding and restructuring process is comprehensively monitored so that the money is wisely spent. Where we see squandering of aid given for rebuilding purposes, the donor in each case should also bear an equal share of the burden for the wastage and the corruption.

A case in point is the Southern expressway which led to one of the many judgements in recent years where the court stressed certain cautionary principles regarding the manner in which development ought to take place vis a vis the rights of people who are affected. Appealing from the dismissal of their applications by the Court of Appeal, a primary argument of the affected villagers from Akmeemana and Bandaragama before the Supreme Court was that the summary changing of the trace over which the expressway was due to run without notice to them by the road development authority affected their rights.

Accepting this argument, the Supreme Court emphasized that the courts in Sri Lanka have long recognized and applied the "public trust" doctrine: that powers vested in public authorities are not absolute or unfettered but are held in trust for the public, to be exercised for the purposes for which they have been conferred, and that their exercise is subject to judicial review by reference to those purposes;

Executive power is also necessarily subject to the fundamental rights in general, and to Article 12(1) in particular which guarantees equality before the law and the equal protection of the law. The "protection of the law" would include the right to notice and to be heard. Administrative acts and decisions contrary to the "public trust" doctrine and/or violative of fundamental rights would be in excess or abuse of power.

Here, the villagers whose land were going to be taken away as a result of the changed trace were entitled to notice and to be heard as per the principles of natural justice and their fundamental right to equal treatment and to the equal protection of the law. In not being given such a hearing, they were at least entitled to compensation for the violation of their rights. Though the Court thought it fit, (albeit rather disappointingly), to limit relief to the awarding of compensation without ordering a second environmental assessment which was what the villagers actually wanted, these principles are outstandingly important in determining future governmental action in the context of development processes. (See Mundy vs CEA and Others, SCM 20/1/2004 per judgement of Mark Fernando J.)

Later, some of these affected villagers appealed to the United Nations Human Rights Committee in terms of the right of individual communication granted under the International Covenant on Civil and Political Rights. Among the primary questions asked by them was that the UNHRC consider as to whether the challenged deviations brought in by the changed trace violated their right to life, their right to information (as this had been almost wholly deprived to them during the process of changing the trace) as well as their right to non-arbitrariness and equal protection of the law. The application is pending before the Committee.

In all these instances, whether the issue concerns a major expressway or the substantial rebuilding of infrastructure that is devastated owing to a natural calamity, the guiding principles are the same. Where the priorities of sustainable development, (economic cost as well as environmental cost), are not transparent/accountable and involve massive human cost, such processes are in violation of basic rights. Hitherto widespread reports of corruption and mismanagement have dogged not only the Southern highway but also the other pending highways linking the capital to the Katunayake International Airport as well as to the hill capital, Kandy. These are allegations in which the major donors of the projects are also substantially implicated.

A particular duty of reasonableness is imposed thereby on the Government to engage in careful and meticulous planning when putting into effect the proposed rebuilding after the tsunami in a manner that balances competing ecological concerns and proportionately affects members of the community as little as possible. The Directive Principles of State Policy as contained in Article 27(14) of the Constitution specifically requires the State to protect, preserve and improve the environment for the benefit of the community.

Management of vast highway projects as well as the future development of the coastal zone in Sri Lanka should be subject to a public trust, to be exercised for the benefit of the public, primarily the affected individuals. Actions of the donors as well as that of the government should be strictly monitored for this purpose.

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