• Nature: a kind of reverse order
• Kamal and the question of consent
• What really happened?
• Judgment

Nature: a kind of reverse order

Some of the issues raised by Justice Mark Fernando in his keynote address at the National Environmental Law Conference held at the Holiday Inn on February 28, 1998.

Certain key issues confront environmental ists today. Consider for example, the prob lem of informing and educating people about environmental concerns. How could this be done best ? One method is of course the media, but this is limited. A more effective method of disseminating information about environmental issues would be to reach the schoolchildren who are often more idealistic, more receptive, and more likely to be active. Thought should be given therefore to revising school curricula so that environmental issues are given significant place for discussion. Similar reform ought to take place in order to stimulate discussion of other topics of interest like fundamental rights, children's rights and women's rights. Education ought to be the main focus, for much damage is done to the environment not by people who are deliberately malicious but by those who are ignorant.

What are the remedies available when there has been a despoiling of the environment ? Two phrases that have been often misunderstood are public interest litigation and judicial activism. They mean different things to different people. For some, it means that to be activist, a judge must interpret the law in a certain manner, even if the law is clearly not inclined towards that particular interpretation. But, judges are given the function of interpreting the law, not of changing it. They should not be asked to be judicial insurgents, and simply because public interest litigation flourishes in India, one cannot say that it should take place here. To the extent that the law permits it, it ought to be allowed here. To do more would belong to the province of legislators, not of the judges.

When one analyses the nature of the bases on which remedies may be given in environmental law cases, it is relevant to ask whether the doctrine of public trust applies to these cases. This states that powers vested in public officers are not absolute or unfettered, and that they should be used for the benefit of the public rather than at the whim and fancy of particular officials. The manner in which they use these powers could be scrutinized to see whether they have been exercised for the purpose for which they have been granted. These principles could be argued to apply to a duty that public officials have in respect of the environment. The doctrine of public trust in environmental matters certainly merits serious consideration.

Often, it appears that environmental action is geared to stop action that has already taken place that is criticised as affecting the environment in a negative manner. Sometimes, the activities that are sought to be stopped are not wholly evil. They have a need for the community, but, in fact, the environmental cost is too high. Perhaps, we should think of alternatives that would allow these activities to proceed without allowing them to be too harmful. For example, there was recent criticism about a garbage disposal site for the city of Colombo. A particular site had been chosen, but controversy arose when residents of that area protested. The question is whether the alternatives to such a system of garbage disposal was fully considered. A recent low level technology practised in some countries makes use of the common earth worm to convert household waste into organic matter. These are all alternatives that ought to be given fuller consideration. One other area of discussion concerns international environmental interdependence. On the international scene, a great deal is happening that is affecting the environment, and it is happening very fast. We are very poorly informed about all these developments. The world media portrays one point of view that is certainly not the only point of view. There is a serious inadequacy of information about these matters, and the moral, ethical and legal issues involved.

In the 1930's, when the Great Depression occurred, it was said that when Wall Street sneezes, the rest of the world catches a cold. Now, the world is a global village where economic events in one part of the world affect the rest of the world in weeks or months, and it could be said that when the U. S. sneezes, it is only the 1st World that catches a cold, the rest of the world gets pneumonia. Environmental conditions in one part of the world have an equally drastic effect on other parts of the world. One has to only look at the phenomenon of El Nino, the recent forest fires in Indonesia, and before that, the effects of the Chernobyl disaster, to name a few, to realise this. Each country has to be conscious of this interdependence with regard to environmental concerns.

In the quest for sustainable human development, we have to have some norms in the balancing act that we have to engage in. In some countries, you have very strict standards laid down as regards polluting industries, yet they are allowed to function with impunity in other poorer countries. Should not there be guarantees that these industries ought not be allowed to operate anywhere if they cannot conform to certain basic standards ?

The question of international equity is also important. It has been pointed out that 20% of the world's population consumes 80% of the world's energy and is responsible for 80% of the world's pollution. In this context, is it not fair that an attempt ought to be made to look first at the volume of pollution that the world can tolerate and then very carefully lay down certain standards that ought to be adhered to, the violators of whom ought to pay for the cost ? In other words, if you consume more, then you must pay more. We do this in the case of scarce resources for consumption like water and electricity where the more units you consume, the more you have to pay. There must be an international order that is based on the same kind of principles. At present, a kind of a reverse order operates where those who consume the earth's resources more can get it cheaper. Although they pollute more, they end up paying less. This is a continuing injustice that ought to be taken note of, at an international policy level, without which all the high powered conferences at Rio, Kyoto and elsewhere would be meaningless.

Kamal and the question of consent

By Kishali Pinto Jayawardena

At first sight, the question seems absurdly simple. Is it only fair to a woman and not in the least unfair to a man that he should be under a duty to take reasonable care to find out whether she is consenting to sexual intercourse, where such intercourse is admitted to have taken place, and be at the risk of a prosecution if he fails to take such care ?

First appearances, as always, are deceptive. The question in dispute, in fact, bristles with uncertainties. What is meant by reasonable care ? What is meant by consent ? On the one hand, the woman might well be at the receiving end of sexual abuse, conveniently interpreted as consent, if the duty to take reasonable care is treated lightly. On the other hand, the danger that a consenting partner might turn around at a later date, and accuse the other of rape has also to be guarded against. Balancing the tightrope between these twin dangers has not been easy for courts in any part of the world, nor was the task any the less easier in the Kamal Addararachi case, decided by the Colombo High Court in December last year.

Predictably, the sentencing, of Addararachi to ten years rigorous imprisonment and a fine of Rs one million for the abduction with intent to rape and rape of Inoka Gallege, by Colombo High Court Judge Shiranee Tillekewardene, provoked a storm of protest, with the undeniably talented actor's fans and colleagues leading the fray on his behalf. Rather ironically, most of them were female. Addararachi's lawyers were quick to file appeal on the conviction to the Court of Appeal. The case is pending.

As the hysteria dies down months after the verdict, a more sober look at the issues involved seems opportune. Addararachi vs the Republic was undoubtedly, what could be termed as a "hard case".

There was no forcible abduction of Gallege, the alleged victim, she had no physical injuries on her body and she had complained about the rape only several hours later.

The Colombo High Court decided the case under Section 363 of the Penal Code which states that rape is said to have been committed when sexual intercourse is had with a woman under circumstances that show that such intercourse has been without her consent or against her will.

Was consent on the part of the victim found to be absent in the instant case ? The defence argued that as Gallege had no injuries and she had not bitten or scratched or fought back against the accused, she had therefore tacitly consented . Rejecting this argument, the High Court stressed that mere passivity does not amount to consent.

"The freedom of an individual, whether it is a man or a woman, fundamentally allows them mobility. To say when and where women should go is to lay curbs on their freedom. Such would be to detract from the fundamental concept of the equality of men and women. To say that a particular presence of a woman at a particular place, or attired in a particular manner provoked a man to lose control, to act in a sexually violent manner, would be to give a licence to the use of force and give rise to oppression of women and lead to a situation that is discriminatory, and biased against women. The law precludes men from oppressing women based on their physical strength alone.

The law guarantees and protects the rights of men and women to ensure the fundamental concept of equality. The law upholds gender equality," the Colombo High Court warned, in what could be said to be the strongest pronouncement on–gender rights yet to come from the Sri Lankan judiciary. The High Court went on to state that the mere fact that a woman is willing to enter a room with a man does not mean that she was consenting to the act of intercourse. This may be an item of evidence, but ultimately, the question is whether she gave her consent. The absence of consent could be apparent by both verbal and non verbal behaviour, and the accused could be found guilty if it is proved beyond reasonable doubt that he was aware of or recklessly or wilfully blind to the fact that consent was not communicated.

On the other hand, Addararachi's testimony was rejected by the Court as being unworthy. Not only had he changed his version of the events that had occurred but in general he was not wholly open about his answers , as for example when he deliberately refused to give the location of the place where he had taken Gallege on the night in question.

The defence suggestion was that the victim could not reasonably have been a person who was so naive and trusting, to almost a point of foolishness, in the extent of the trust that she reposed in Addararachi. Her behaviour was said to go against the behaviour of any reasonable woman. The Court however warned against stereotyping the behaviour of men and women as to what they should do and what they should not do and when and where.

"To do so would be to detract from the basic equality of men and women," the Court said.

It was from this angle that the Court looked at the behaviour of Gallege in driving off with Addararachi in the middle of the night. She had got into his car at the insistence and with the consent of the accused's aunt. She herself would have had no qualms about it as she had received only kindness and consideration from the accused upto that time. An ordinary more experienced person might have made a different choice. The victim however was barely seventeen years at that time and was in a desperate situation. The mere fact that she had acted as she did was held not to detract from the probability of her version of the incident. It was after consideration of the totality of these circumstances that the Court ruled that the offences of abduction with intent to rape, and rape had been committed by the accused.

Whatever the merits and demerits of this December decision that continues to be a topic for debate with the occasional and inevitable risque joke thrown in for good measure, one fact is clear. The judgment in Addararachi vs the Republic has thrown into bold relief, the new penal laws relating to rape that were enacted by Parliament in September 1995, though the Addararachi case itself did not come within the ambit of these laws as the offence had been committed prior to their enactment. The amendments in 1995 provided for the offence of marital rape in respect of judicially separated spouses and also changed the law in other respects as well. An earlier legal condition that actual physical injury should be shown as indicative of resistance was deleted. The phenomenon of custodial and gang rape was recognised, and enhanced punishment was provided for both these two offences as well as rape of a minor (under 18 years), rape of a pregnant woman and rape of a woman mentally or physically disabled. The laws specified that a minimum of 7 years and a maximum of 20 years be imposed in the case of rape while aggravated rape counted a minimum of–10 years with the maximum remaining the same. The minimum was further increased to 15 years in the case of statutory rape which is also incest.

Assuredly, the Addararachi case was a break from this trend, as its supporters would argue. On the other hand, its detractors would say that it weighed the scales too much in favour of the complainant. Both would however have to acknowledge that the case has led to a heightened public consciousness regarding rape in a manner that Parliament was not able to achieve in 1995. For the more detached observers, the case has rekindled the argument that when putting forward a definite policy on certain issues, the State ought to do more than pass laws in Parliament. For example, it has been pointed out that people ought to have demanded and policy makers ought to have implemented specific programs of awareness of the new laws along with their enactment in 1995. Resources ought to have been put aside for this purpose, and an aggressive campaign of education launched. The reality was, of course, very different, and it took the prosecution of a popular actor for rape to jolt the majority of our stout hearted citizens, male and female, out of our placidity, either in a positive or negative manner.

What more indeed, needs to be said.

Judgment

Ahungalle zoo

Environmental Foundation Ltd Vs Minister of Public Administration Ratnasiri Wickremanayaka &–Others
Application 137/96
Decided on 17. 12. '96
Facts–

The case concerned the filing of an application for writs in the nature of certiorari and mandamus by a public interest, environmental law and advocacy organisation quashing the issue of permits by the Minister of Public Administration and the Director, Department of Wildlife Conservation allowing the owner of the Ahungalle private zoo to continue his establishment despite clear violations of the law as to the nature and number of animals that he is allowed to keep

Judgment of the Court of Appeal by Dr Ranaraja J.

(Extracts from the judgment with specific reference to the question as to whether the petitioner is entitled to appear before court in this matter as a public interest organisation. )

The respondents contended that only an aggrieved party or a member of the public can ask for a certiorari to be granted. If the applicant is a member of the public, he must have sufficient interest to make the application.

Locus standi with regard to mandamus is more strict. The petitioner must have a personal interest in the subject matter. The petitioner, on the other hand stated that it had as its objectives, the protection of nature and the conservation of its riches. It is genuinely concerned with the implementation of the law in relation to nature, its conservation and the environment in general and is performing a duty cast on it under the Directive Principles of State Policy in the Constitution. It is to be noted however, that these Principles do not confer or impose legal rights or obligations and are not enforceable in a court of law.

However, there are decisions both here and abroad that have expanded the principle of locus standi to include an applicant who can show a genuine interest in the matter complained of and who comes before the court as a public spirited person concerned to see that the law is obeyed in the interest of all. Unless any citizen has standing therefore, there is no means of keeping public authorities within the law, unless the Attorney General will act, which frequently, he will not. That private persons should be able to obtain some remedy is therefore "a matter of high constitutional principle", though the Court will not "listen to a mere busybody who is interfering in things that do not concern him."

If the application is made by, what one may call for convenience, a stranger, the remedy is purely discretionary. Court retains the discretion to refuse to act at the instance of a mere stranger if it considers that no good would be done to the public. As a party genuinely interested in the matter complained of, the petitioner has the locus standi to make this application.

The Court of Appeal went on to find however that the petitioner had failed to establish that the decisions taken by the respondents to issue and restore the impugned permit was contrary to a mandatory rule of law or to natural justice and the application had to be dismissed.

Upon appeal to the Supreme Court, it was agreed that as subsequent to the judgment of the Court of Appeal, the permit issued to the owner of the Ahungalle Zoo had been cancelled, and the animals taken into the custody of the State, that the judgment of the Court of Appeal should be set aside without prejudice to the finding of the Court of Appeal that the petitioner has the locus standi to make the application)

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