The story of the power plant in Chunnakam is a grim reminder that Sri Lanka’s natural resources are being polluted, destroyed, and neglected
In April this year, the Sri Lankan Supreme Court declared that ‘the citizens of Sri Lanka’ have a ‘fundamental right to be free from unlawful, arbitrary or unreasonable executive or administrative acts or omissions which cause or permit the causing of pollution or degradation of the environment’ (p 52). At a time when the impact of climate change is keenly felt in Sri Lanka due to extended droughts, life threatening rain, landslides and a looming water crisis, this judgement provides some clarity on the responsibilities of state agencies with regard to monitoring and prevention of environmental pollution.
The determination of the Court is an encouraging sign. It suggests that significant infrastructure projects run by private companies can and will be held accountable for the damage they cause to the environment. In addition to upholding environmental rights, the judgement provokes debate on how the armed conflict has impacted the environment and about the regulation of foreign investments that impact the environment. It offers material for debate on the relevance of expert opinion and scientific methods for determining the outcome of fundamental rights petitions.
It also highlights (once again) the unique role that the Department of the Attorney-General can play in constitutional adjudication. This judgement will be instructive reading for public officers and potential foreign investors. It will be encouraging reading for those engaged in social movements for justice. It is likely that it will be compulsory reading for students of law and lawyers alike.
The present piece offers some reflections that are restricted to the following aspects of the judgment – environmental justice, the remedy ordered by the Court and its impact on ‘public interest litigation’.
The Chairman of the ‘Centre for Environment and Nature Studies’ (the petitioner) filed a fundamental rights petition before the Supreme Court alleging, among other things, that the Northern Power Company (the power plant) had polluted the groundwater in the Chunnakam area in the Jaffna peninsula making it ‘unfit for human use’ (p 3).
The petitioner further claimed that the Central Environmental Authority (CEA), the Ceylon Electricity Board (CEB), the Board of Investment (BOI), and the National Water Supply and Drainage Board (NWSDB) had failed to carry out its statutory duties. The due performance of those duties, the petitioner claimed, would have prevented the power plant from polluting the environment.
The two central questions of fact that the Court had to decide on were – 1) whether the power plant had contaminated ground water and soil in the area and 2) whether the statutory authorities had failed their statutory responsibilities to monitor the operations power plant. In seeking answers to these questions, the Court had to examine several laws, regulations made under those laws, reports by expert bodies, etc. Even a cursory reading of the judgement makes it clear that the Court has carefully analysed the relevant material in determining its answers to these questions.
Though a correlation could be established between the activities of the power plant and ground water and soil pollution there was no ‘scientific evidence’ to establish causation. However, the Court took the view that the reports before them and the complaints of the residents of the area adequately established that the plant had been negligent and had failed in its due diligence.
On that basis, the Court held the power plant responsible for environmental pollution. The records before the Court clearly established that the regulatory bodies had failed to carry out its duties of monitoring and supervision of the operations of the power plant. The questions of law that the Court was faced with include the following. 1) Did the petitioner have standing to make this application before Court? and 2) Did the alleged actions of the statutory authorities and the power plant amount to a violation of a fundamental right of the petitioner? A related but separate issue that the Court had to decide on was on the most suitable remedy in these circumstances.
A right to be free from pollution or degradation of the environment
The Sri Lankan Constitution does not recognise specific environmental rights. That however has not stopped the Supreme Court from recognising the responsibility of the state to protect the environment. In several cases the Court has interpreted the right to equality (Art 12(1)), the freedom to engage in a lawful means of employment (Art 14(1)(g)) and the right to freedom of movement (Art (1)(h) to include environmental rights. In several of these cases the Court referred to the obligation cast on the state in the Constitution to ‘protect, preserve and improve the environment for the benefit of the community’ (Art 27 (14)) to justify the judicial recognition of environmental rights.
The ‘Eppawala’ case (2000) is emblematic of this judicial trend. In this case the Court held that permitting a company to mine the phosphate deposit in Eppawala would violate the collective freedom of movement of local residents. Court declared that the state has an obligation to protect natural resources and to use them in a manner that ensures sustainable development and inter-generational equity.
The power plant is a foreign investment project. It is likely that the investor did not anticipate being subjected to the fundamental rights jurisdiction of the Supreme Court. However, the evidence before the Court suggests that the power plant had failed in its due diligence. Given that the Court had found the statutory authorities to have failed in their statutory duties of monitoring the operations of the power plant, the Court would have been well within its jurisdiction to order that the power plant ceased operations
Accordingly, the concept of sustainable development was judicially incorporated into Sri Lanka’s fundamental rights jurisprudence almost 15 years before it was recognised formally and adopted by the General Assembly of the United Nations (i.e. as the Sustainable Development Goals).
The Chunnakam case adds to this growing jurisprudence on environmental justice in two ways. 1) By clarifying three substantive aspects of environmental rights that are recognised in Sri Lanka and 2) by expanding the scope of the Court to grant remedies in the exercise of its ‘just and equitable jurisdiction’. Following previous decisions, the Court determined that the failure to carry out statutory functions is a violation of ‘public trust’. Public trust is the normative basis on which discretionary legal power is vested in statutory bodies. Such breaches of statutory duties, the Court argued, is a violation of the right to equality of citizens. Accordingly, Court clarified that in Sri Lanka citizens have a ‘fundamental right to be free from unlawful, arbitrary or unreasonable executive or administrative acts or omissions which cause or permit the causing of pollution or degradation of the environment.’ (p 52). The second clarification offered by the Court is in relation to the right of ‘access to clean water’. Court observed that ‘access to clean water is a necessity of life and is inherent in Art 27(2)(c) of the Constitution’. (p. 53) Art 27(2)(c) is a Directive Principle of State Policy which declares that the state must ensure to all citizens ‘an adequate standard of living’. This is probably one of the first times that the Court has made a clear declaration on the right of ‘access to clean water’.
The third clarification offered by the Court is with regard to the duty of the state to consult the public ‘before’ approving development projects. It is noteworthy that the Court attached significance to ‘the public’ in this judgment in determining the question of pollution of groundwater. The Court stated that it is ‘(…) inclined to give weight to these complaints which have been made by the residents of the area who have first-hand and day-to-day knowledge and will be aware of signs of noticeable pollution in groundwater and soil in the area in which they live, farm and work.’ (p. 31).
Drawing upon previous jurisprudence of the Court where the Rio Declaration (the Rio Declaration on Environment and Development adopted by the UN Conference on Environment and Development in 1992) was referenced, the Court affirms the applicability of the principle on ensuring public participation. Court declared that it is of ‘vital importance’ that the relevant statutory authorities give ‘the public an opportunity to make their comments and, where required, be heard, prior to the grant of approval for the implementation’ of a project’. (p. 49).
By way of these three substantive contributions the Court adds clarity to previous judgements which have recognised environmental rights more broadly in Sri Lanka.
The Court extended the scope of the fundamental rights chapter to include specific environmental rights through the right to equality. The Sri Lankan Supreme Court has expanded the right to equality over time to include several substantive and procedural rights. The right to education, the right to a fair hearing and the right against sexual harassment are a few examples.
The Court seems to have expanded the right to equality in this manner by following the approach of the Indian court to the same right. According to the ‘new doctrine’ as described in the ‘Royappa’ case (1974) in India, any arbitrary use of public power was a violation of the right to equality. The applicability of this doctrine in Sri Lanka was rejected in the ‘Elmore Perera’ case (1985). Subsequent Courts have however adopted the new doctrine and upheld a broad interpretation of the right to equality.
In the Chunnakam case, the Court does not explain its jurisprudential basis for extending the right to equality to include a right to be free from ‘pollution or the degradation of the environment’. A reference to the ‘new doctrine’, its adaptation and expansion in Sri Lanka would have provided a strong justification for the Court in this case.
The Court references the ‘precautionary principle’, ‘the polluter pays principle’, the public trust doctrine and ‘sustainable development’ in justifying its decision and its order. Intriguingly, the Court only refers to the older international law standards on sustainable development such as the Rio Declaration of 1992 but makes no reference to the Sustainable Development Goals and the 2030 Agenda adopted by the UN General Assembly in 2015. Reference to Goal 6 – clean water and sanitation, in particular, would have strengthened the normative jurisprudential argument of the Court.
An innovative remedy?
The remedies granted by the Court are innovative and is in three parts. Firstly, Court declared that that the CEA and the BOI have violated the right to equality of the petitioner and the residents of the Chunnakam area.
Secondly, the Court ordered that the power plant pay Rs. 20 million as compensation to residents of Chunnakam within 1.5 km radius of the power plant. A panel is to be constituted under the chairmanship of the NWSDB to disburse the compensation awards. The Court has ordered that the Chief Occupant of a household is entitled to receive compensation and that the maximum award per person is Rs. 40,000.
Thirdly, the Court ordered intense monitoring (quarterly in the first year and half year in the second) of the power plant for the next two years by the BOI and the CEA. Even though the Court found that the power plant had contributed to ground water and soil pollution it noted that ‘the permanent shutting down’ of the plant ‘would be unwise and also irresponsible in the light of the prevailing need for additional electrical power generating capacity’. (p. 61).
The power plant is a foreign investment project. It is likely that the investor did not anticipate being subjected to the fundamental rights jurisdiction of the Supreme Court. However, the evidence before the Court suggests that the power plant had failed in its due diligence. Given that the Court had found the statutory authorities to have failed in their statutory duties of monitoring the operations of the power plant, the Court would have been well within its jurisdiction to order that the power plant ceased operations. The Court could have ordered that the power plant be permitted to apply for a new licence after making the necessary arrangements to ensure that ground water and soil would not be polluted by its activities.
The Court relied on ‘the polluter pays principle’ in justifying its order of compensation against the power plant. However, according to the Constitution only state agencies can be subjected to the fundamental rights jurisdiction of the Court (Art 17 read with Art 126). On what basis then did the Court order that a private company pay compensation for the violation of a fundamental right?
The Court may have benefitted from referring to its own recent jurisprudence in the case of ‘Captain Abeygunewardena v Sri Lanka Ports Authority’ (SC (FR) 57/2016, Supreme Court Minutes 20 January 2017,) where the Court gave a rigorous interpretation of what is known in public law as ‘the public function test’. Where a private actor, in this case a company, engages in a function that is ‘closely associated with the State or performs functions on behalf of the State (…)’ Court reasoned that such a private actor ‘in truth and fact’ are ‘agencies or instrumentalities of the State.’(p. 7).
Given that the power plant was providing an essential service to the Jaffna peninsula it may have been possible for the Court to argue that the obligation to respect fundamental rights could be extended to the power plant.
Moreover, the actual process of disbursing this fund is likely to be theoretically complex and ridden with practical problems. It is curious that the Court has ordered the very statutory bodies that it found to have failed to perform its duties to implement the financial remedy ordered by the Court. In any event, the petitioner had requested that the Court order the power plant to cease its activities. The Court chose not to grant that remedy. The financial compensation that the residents will eventually receive would only be symbolic and will not address the problem of pollution that the residents have to contend with.
Standing and the time bar
In the Chunnakam case, the petitioner is the chairman of an organisation that has an interest in environmental justice. According to Art 126 of the Constitution, a petition alleging a violation or an imminent violation of a fundamental right must be filed within thirty days by the victim or his Attorney-at-Law. In several cases, the Supreme Court has dispensed with these procedural requirements. One of the justifications for this approach has been that of ‘public interest’. What is meant by ‘public interest’ by the Court is unclear.
The Court has been willing to accept delayed petitions where the petitioner has claimed that the violation was ‘continuing’. What is striking about the Chunnakam judgement is that the Court does not provide an explanation as to why the requirements for standing has been dispensed with in that case. The Court does not declare whether the petitioner has come to Court within the 30 days. The Court choses to remain silent on these issues in the judgment.
The jurisprudence of the Court on ‘public interest litigation’ has been mixed. Recently in the ‘Ceylon Electricity Board Accountant’s Association’ case (2016) the Court held that unincorporated bodies do not have the standing to file a fundamental rights petition. In that case the Court took the view public interest litigation will be entertained by the Court only in extreme circumstances that concern persons who are disadvantaged due to poverty, disability, etc.
Previously, in the ‘Azath Salley’ case (2009) Court held that ‘time is opportune to forge and adopt a liberal interpretation for the purpose of making fundamental rights more meaningful for the majority of the people.’ (p. 377). The mixed experiences before the Sri Lankan Court means that it is difficult to predict the receptivity of the Court for public interest litigation. The Chunnakam case adds to that uncertainty by maintaining silence on the question of standing.
The Chunnakam judgement makes a useful contribution to Sri Lanka’s growing jurisprudence on environmental rights. However, the statutory bodies that had failed in their due diligence are only called upon to engage in additional scrutiny of the power plant for the next two years. Additionally, those agencies have the responsibility of disbursing the compensation award. The Court declared that their omissions and failures resulted in the violation of the right to equality of residents of the area.
The power plant was permitted to continue its operations although under intense forms of monitoring. The residents of the area must now go before a panel that will determine whether they would actually receive any compensation.
As the judgement indicates, another power plant in the area might also be polluting the ground water and the soil. It is likely then that the residents and animal and plant life in the area will continue to feel the impact of the pollution of the ground water. Within the confines of a constitutional remedy, the Court seems to have offered what it could for affected residents. Its more useful contribution seems to be the clarity that it has added to Sri Lanka’s jurisprudence on environmental rights.
The story of the power plant in Chunnakam is a grim reminder that Sri Lanka’s natural resources are being polluted, destroyed, and neglected. The litigation before the Supreme Court and the judgement is a reminder that when it comes to our environment, prevention of harm is the better way. Judicial remedies, if and when they are available, will often be inadequate and too late.
(The writer is a law academic.)