Towards a Jurisprudence of Sustainable Development in South Asia: Litigation in the Public Interest

Author:Shyami Fernando Puvimanasinghe
Position::Senior Lecturer, University of Colombo, Sri Lanka
Pages:41-49
SUMMARY

This paper presents an updated version of part of a chapter in "Foreign Investment, Human Rights and the Environment: A Perspective from South Asia on the Role of Public International Law for Development", published by Koninklijke Brill NV, Leiden, The Netherlands, in 2007, which in turn consisted of an adapted version of the author’s PhD thesis.

 
CONTENT
41 SUSTAINABLE DEVELOPMENT LAW & POLICY
TOWARDS A JURISPRUDENCE OF SUSTAINABLE
DEVELOPMENT IN SOUTH ASIA:
LITIGATION IN THE PUBLIC INTEREST
by Shyami Fernando Puvimanasinghe*
This paper presents an updated version of part of a chapter
in “Fo reign Investment, Human Rights and the Environment:
A Persp ective from South Asia o n the Role of Public Interna-
tional Law for Development,” published by Koninklij ke Brill
NV, Leiden, The Netherlands, in 2007, which in turn consisted of
an adapted version of the author’s PhD thesis.
INTRODUCTION
South A sia, accord ing to the grouping o f the South
Asian Association for Regional Coopera tion, c onsists
of Afghanistan, Bangladesh, Bhutan, India, Maldives,
Nepal, Pakistan and Sri Lanka. A lthough Southern Asia is b y
and large one of the economically poorest regions of the world,
it is rich in non-economic terms—ecological, historical, cultural,
ethical, philosophical, and spiritual. The Indian sub-continent is
home to a value system involving the spiritual, ethical, individ-
ual, and collective dimensions of human life, which are all inter-
connected and require mutual accommodation, as all phenomena
in nature are united in a physical and metaphysical relationship.
Religious traditions and philosophical thought in Southern Asia
find close links with justice , equity, and sustainab le develop-
ment; non-violence and compassion for all; reconciliation, har-
mony, e quilibrium and the middle path; equitable distribution
of r esources and moderation i n consumption. Throughout the
colonial and post-colonial history of most of the countries in the
region, however, the traditional wisdom of holistic approache s
to development have been gradually replaced by globally domi-
nant models of economic development and today the problems
of development versus the environment and human rights, pov-
erty, pollution and overpopulation: indiscriminate liberalization
and urbanization are commonplace.
In a variety of issues ranging from a massive leak age of
methyl-isocyanate gas to phosphate mining, and from the noise
of a t hermal power p lant ge nerator to Gene tically Modified
Organisms, p ublic interest litigat ion1 (“PIL”) has evolved as a
popular tool in the South Asian region2 since the mid-1980s. It
has take n diverse for ms, like repre sentative standing, where a
concerned person or organization comes forward to espouse the
cause of poor or otherwise underprivileged persons; and citizen
standing, which enables any person to bring a suit as a matter of
public interest , as a concerned member of the citizenry. Given
the vario us and numerous classifications that divide the social
fabric i n this region, it is fair that po or, illiterate, legally-illit-
erate, minority , low caste, and other disadvantaged and under-
privileged perso ns gain access to justice through distor tions of
traditional doctrines of s tanding. The test for locus standi in
these cases has, within limits, been liberalized from the need to
be an aggrieved person, to simply being a person with a genu-
ine and sufficient concern. In addition, class actio ns allow one
suit in the case of multiple plaintiffs and/or defendants, and have
been useful in this area.
Before the Bhopal disaster, PIL emerged as a tool in cases of
social injustice, for instance bonded and child labor, and issues
of public accountability, like illegal payments to public officials.
In relation to challenges to development projects, Indian courts
had consistently been slow to i nterfere with projects be neficial
to development.3 In the case of the Sardar Sarovar Dam Project,
PIL was invoked by the Narmada Bachao Andolan, challenging
the failu re to ensure rehabilitation for millions of p ersons dis-
placed by the construction of over 300 dams across the Narmada
river. Protracted litigation ended years later in 2000.4 The main
catalyst for the evolution of PIL was the Bhopal disaster. In its
immediate aftermath, the victims of this catastrophic industrial
accident first brought action against Union Carbide in India. The
Indian government then passed legislation, assumed the role of
parens patriae, and filed suit against the parent company in the
US, on behalf of the victims. This course of action was largely
due to lack of legisla tion, enforcement ca pacity, and legal
resources in India at that time. The ensuing case of In re Union
Carbide Corp. Gas Plant Disaster5 concerned liability and com-
pensation for thousands of deaths and personal injuries. How-
ever, the case was sent back to India on the basis of forum non
conveniens. Finally, it was settled out of court, and the settlement
was given judi cial assent in the Supreme Court of India.6 Thus
the iss ue of liabil ity was neve r adjudicated by a court of law.
Under the settlement, Union Carbide was to pay $470 million,
generally thought to be inadequate.7 Poor implementation means
that victims of Bhopal lacked redress for decades, as highlighted
on the 20th anniversary of the disaster, on December 3, 2004.8
The realization of the total incapacity of the host state legal
system to deal with suc h a disaster led to the passage of envi-
ronment-related laws and litigation in India in the years imme-
diately following the Bhopal accident. Most states in the region
have sin ce invoked legis lative, consti tutional, and ju dicial
mechanisms to further environmental protection and sustainable
* Having s erved as a Senior Lecturer, University of Colombo, Sri Lanka, and
worked for human rights, heal th, HIV/AIDS, environm ent and development in
non-governmental organizati ons in Gaborone, Botswana , the author, a Senior
Research Fellow, Cen tre for Sustainable Development L aw, McGill Univer-
sity, Montreal, Canada is currently employed in the intergovernmenta l sector
in Geneva, Switzerland. This article represents the views of the author in her
personal capacity.
42FALL 2009
development, and their experience can be informative for other
developing countries.9 Legislation for environmental protection
has now been passed in most countr ies in South Asia.10 This
includes provisions requiring environmental impact assessments
for developmen t pro jects, statutory environme ntal pollution
control by administrati ve agencies,11 and environme ntal stan-
dards for discharge of emissions and effluents.12
Several constitutions in the region re cognize an obligation
of the state as well as citizens, to protect the enviro nment.13 In
addition, the right to life (and liberty) is enshrined in some con-
stitutions14 and has been interpreted
by the jud iciary to includ e the
right to a clean and h ealthy envi-
ronment.15 In the Indian case of
Subash Kumar v. State of Bihar,
the petitioner filed a public inter-
est litig ation pleading inf ringe-
ment of the right t o life arising
from th e pollution of the Bokar o
River by the sludg e di scharged
from the Tata Iron and Steel Com-
pany, alleged to have made the
water unfit for drinking or irriga-
tion. The court recognized that the
right to life includes t he right to
enjoyment of pollution-free water
and air. It stated that if anything
endang ers or impairs th e qual-
ity of life, an af fected person or
a genuinely interested person can
bring a public interest suit, which
envisag es le gal proceedings for
vindication or enforcement of fun-
damental rights of a group or community unable to enforce its
rights on account of incapacity, poverty, or ignorance of law.16
In Pakistan, an adequate standard of living has been inter-
preted to include an environme nt adequate for the health and
well-being of the people.17 In the case of Shehla Zia an d Oth-
ers v. WAPDA,18 the right to life was uph eld and interpreted
to include a healthy environment. The pet itioners, who were
residents in the vicini ty of a grid station being constructed by
the res pondents, alleged that the electromagnetic field created
by high voltage transmission lines would pose a serious health
hazard. It was held that the word “life” cannot be res tricted to
the vegetative or animal life or mere existence between concep-
tion a nd death. Life should be interpreted widely, to enable a
person not only to sust ain life, but also to enjoy it. Where life
of citizens is degraded, the quality of life is adversely affected,
and health hazards are creat ed af fecting a large number of
people, the court may order the stoppage of activities that cre-
ate p ollution and environmental deg radation. Since the scien-
tific evidence was inconclusive in this case, the court applied
the precaut ionary principle. Notin g that energy is essential for
life, commerce, and industry, th e court h eld that a balance in
the form of a policy of sustainable development was necessary,
appointing a Commissioner to examine and study the scheme
and report back to it.
A bod y of juri sprudence on sustainable deve lopment and
its domestic implementation has evolved in India.19 Most other
countries in the reg ion have followed in the same direction .
Their various efforts viewed c ollectively point t o the evolu-
tion of a body of regiona l, or comparative, jurisprudence on
issues of development and en vironment with an overt human
rights dimension, largely through the agency of citizen involve-
ment, legal r epresentation in the public interest, and judic ial
innovati on. Th e cont ribution of
the judiciar y—especially the
higher judiciary —is st riking,
especiall y in the light of the
lesser commi tment to sustain-
abili ty on the part of mos t
third world p oliticians . The
case law should in principl e
be applicab le to bot h gl obal
and local busines s, pr ovided
that transnational cor porations
can also be subject to domestic
law in host states. Most of the
cases concern local industries,
but some a lso deal with trans-
nation al business. Whatever
the fac tual context may be,
the legal issues are the same,
and the le gal princi ples have
been applied to the balancing
of conflicting interests of envi-
ronme nt, de velopmen t, and
human rights. The case law is
therefore of bas ic relevance to this study and to foreign invest-
ment activities.
JUDICIAL INTERVENTION IN SUSTAINABLE
DEVELOPMENT IN THE REGIONAL TERRAIN
Heightene d sensiti vity and concert ed actio n in the judi-
ciary, le gal profession, an d civil society have helped to create
an expanded notion of access to justice20 and to foster the phe-
nomenon of PIL.21 Related developmen ts include a degree of
shift from adversarial to inquis itorial judicial methods22 suited
to environmental issues, a broad and purposive approach to stat-
utory interpretation,23 and a measure of flexibility in procedure
adopted and re dress granted.24 The Dhera Dun case25 involved
a public in terest pet ition addr essed to the Supreme Court of
India by the Rural Litigation and Entitlement Kendra. The court
directed that all fresh quarrying in the Himalayan region of the
Dhera Dun district be stopped and ultimately ordered the closure
of several mines. The lessees of the mines submitted a scheme
for limestone quarrying, which was reje cted. On appeal, the
court emphasized that the environmental disturbance caused by
limestone mining had to be balanced against the need for lime-
stone in industry. After careful consider ation and study of the
Heightened sensitivity
and concerted action
in the judiciary, legal
profession, and civil
society have helped to
create an expanded
notion of access to
justice and to foster the
phenomenon of [Public
Interest Litigation]
43 SUSTAINABLE DEVELOPMENT LAW & POLICY
issues, mostly on its own initiative, the court upheld the closure
of the quarries. In view of the unemployment that would ensue,
the court ordered employment of the workers in the reforestation
and soil conservation program in the are a. This type of strong
and proactive judicial action is eviden t in a va riety of other
PIL cases. Aruna Rodrigues v. Union of India, for example, is
an ongoi ng litigation ov er Genetically M odified Organisms in
which the Supreme Court has placed tight restrictions on GMO
crop testing, like prescribing safe distances for test crops from
other far ms and requiring testing to confirm that no crop con-
tamination has occurred.26
Judicial intervention has served to scrutinize governmental
and private sector activities and abate admini strative apathy.27
Significant measures include the creative usage of Dire ctive
Principles of Sta te Policy,28 judicial recognition of a right to
a healthy environment,29 and the interpretation of an adequate
standard of living to include an adequate quality of life and envi-
ronment. In c ases like Juan Antonio Oposa v. The Honourable
Fulge ncio S. F actoran i n the
Phili ppines, wh ich recogni zed
intergenerati onal equity and the
right to a balanced and healthful
ecology, 30 human rights provi-
sions have been used for env i-
ronmental protection.3 1 Judicial
measure s ha ve also liberalized
locus standi to include any per-
son genuin ely concerned for the
environm ent,32 placed a public
trust obl igation on state s over
natu ral re source s,33 i mposed
absolut e l iability for accid ents
aris ing fr om ult ra-haz ardous
activities,34 applied the polluter-
pays and precautionary principles,35
and promoted sustainable development and good governance.36
The Indian case of M unicipal Council Ratlam v. Var d-
ichand37 extended the frontiers of public nuisance through inno-
vative interpretation in light of India’s constitutional embodiment
of soci al justice a nd human rig hts. The fact s arose from what
the Supreme Court described as a “Third World Humanscape,”
where overpopulatio n, large-scale pollution, ill-planned urban-
ization, abject poverty, and dire need of basic amenities com-
bined with of ficial inact ion and apathy to create a miserable
predicament f or slum and sh anty dwellers in a particular ward
in Ratlam, Madhya Pradesh. Justice Krishna Iyer confirmed the
finding of public nuisance by the lower courts.38 Fortifying judi-
cial powers to enforce laws, the judge stated that the nature o f
the judicial process is not merely adjudicatory nor is it that of an
umpire only. Affirmative action to make the remedy effective is
the essence of the right, which otherwise becomes sterile. Justice
Iyer al so referred t o the need for the judiciary to be informed
by the broader principle of access to justice necessitated by the
conditions of developing countries and o bligated by the Indian
Constitution. This case adopts a holistic approach in terms of its
orders for local development and provision of basic needs.
Several recent cases of pub lic interest litigation in South
Asia fu rther elucidate the concept of sustainable development
and move its implementation fo rward. The superior courts of
India were the catalysts for judic ial activism and innovation in
the r egion and public interest litigation is now al so common-
place in the lower courts. Cases include Akhil v. Secretary A.P.
Pollution Control Board W.P.;39 A.P. Pollution Control Board
v. Appell ate Authority Un der Water Act W.P.;40 A.P. Gunni es
Merchants Association v. Government of And hra Prades h;41
Research Foundation for Science v. Union of I ndia;42 Chin-
nappa v. Union of India43 and Beena Sarasan v. Kera la Zone
Management Authority et al.44 In Research Foundation for Sci-
ence a nd Technology and Natural Resources Policy v. Union
of India et al.,45 a public interest suit led to the appointment by
the Supreme Court of a Committee to inquire into the issue of
hazardous wastes.
In Pakist an, recent cases
incl ude Bo khari v. Fede ra-
tion of Pakistan46 and Irfan v.
Lahore De velopment Autho r-
ity ( “Lahor e Air Pol lution
Case”).47 The first ca se con-
cerned the groundi ng and col-
lapse of a s hip in the port of
Karachi in 2003, leading to a
major oil-s pill, which caused
far -reac hing e nviro nment al
damage. The ability of the legal
system to respond was, in this
case before the Supreme Court,
found to be totally lacking due
to many reasons including lack
of preparedness and failure to rat-
ify relevant international conventions. This case was held to be
suitable for public interest litigation. The Court went on to dis-
cuss public interest litigation as it had evolved in India and Paki-
stan, where it was said t o be particularly u seful because of th e
realities of poverty, illiteracy, and institutional fragility. It was
found that in Pakistan, PIL had been used in a very wide range
of social issues, from environmental pollution to the prevention
of exploitation of children. The Lahore Air Pollution Case con-
cerned air an d noise pollution from ri ckshaws, mini buses, and
other v ehicles and th e non-performance of statutory duties by
the relevant authorities, charged with ensuring a po llution free
environme nt for the citizens. The court cited several Indian
judgments, including Ratlam Municipality v. Vardichand, where
Justice Krishna Iyer had touched on the need to be practical and
practicable and order only what can be performed.
In Nepal, Sur ay Prasad Sharma Dhung el v. G odavari
Marble Industries et al.48 was a landma rk case, decided by a
full b ench of th e Supreme C ourt. The C ourt held that a clea n
and healthy environ ment is part of the right to li fe under the
Constitution. It upheld the locus standi of NGOs or individuals
PIL has also become a
common feature in cases
concerning development,
environment, and human
rights, which have closely
linked jurisprudence in
Sri Lanka
44FALL 2009
working for environmental protection, and directed that relevant
laws necessary for the protection of the environment be enacted.
In Sharma et al. v. Nepal Drinking Water Corporation et al.,49
the Supreme Court emphasized the significance of pure drinking
water to public health and, without explicitly saying that it is a
basic right, expressed that its provision was a responsibility of a
welfare state. The Court took acc ount of several aspects of the
Nepali Constitution, including the main o bjectives of the state,
and the spirit of the Constitution. Without issuing a writ of man-
damus to guarantee the right to pure drinking water, as requested
by the petitioner public interest lawyer, it alerted the Ministry of
Housing and Physical Development to hold the Drinking Water
Corporation accountable in complying with its legal obligations
under its governing statute. In Sharma et al. v. Hi s Majesty’s
Government Cabinet Se cretariat et al.,50 the Nepali Supreme
Court was petitioned to “quash a government decision allowing
unfettered import of diesel taxies and leaded petrol from India.”
It held that a hea lthy environment i s a prerequisite to the pro -
tection of the right to personal freedom under the Constitution
and that the state has a pri mary obligation to protect the right
to personal libert y under Article 12 (1) b y reducing environ-
mental pollution as much as possible. Based on the concept of
sustainable deve lopment, the court s tated that the envir onment
cannot be ignored for development. The court issued a directive
to enforce essential measures within a maximum of two years
in or der to re duce vehicular pollution in the Kathm andu Val-
ley, we ll known for its historical, cultural, an d archaeological
significance.
In Banglad esh, the case of Bangla desh Environmen tal
Lawyers Association v. Secretary, Ministry of Environment and
Forests,51 concerned the neglect, misuse, and lack of coordina-
tion by governmental authorities in relation to Sonadia Island,
a precious forest area and rich ec osystem. Authorities were
instead alleged to be preparing th e land for industrial purposes
destructive of the environment, like shrimp cultivation, thereby
destroying the habitat for fauna and flora, and weakening natu-
ral di saster prevention benefits. More recently, in Bangladesh
Environmental Lawyers Association v. Bangladesh et al., the
Supreme Court ordered the closing of ship breaking yards that
were operating without necessary environmental clearance and
a vari ety of actio ns to be taken by the government to prevent
future environmental harm, including establishing a committee
to ensure that regulations are created and followed.52
PUBLIC INTEREST LITIGATION AND SUSTAINABLE
DEVELOPMENT LANDSCAPE IN SRI LANKA
Sri La nka’s mode rn domestic jurisprud ence is lin ked
closely to relevant inte rnational law. The dynamic currents
of sustainable deve lopment law—espe cially in the context of
human rights, public interest litigation, and the environment—in
the domestic courts of the South Asian region have influenced
the ebb and flow of the waters of the island’s jur isprudence,
making fundamental changes in its course. The fabric of the
domestic law, therefore, acquires new motifs and designs, creat-
ing an interesting mosaic. For a just, equitable, and sustainable
development in Sri Lanka it is necessary to identify where envi-
ronmental degra dation and resource depletion make it difficult
to meet basi c needs, and to modify human activities to both
eliminate undesirable side-effects and satisfy these needs.53
Sri Lanka’s 1978 Constitution has some provisions on the
environment in its chapter on Directive Principles of State Pol-
icy and Fundamental Duties. Article 27(2) says that the state is
pledged to establish in Sri Lanka a democratic socialist society,
the objectives of which include (e) the equitable distribution
among all citizens of t he material resources of the comm unity
and the social product, so as best to sub-serve the common good.
Article 27 (14) asserts that the state shall protect, pre serve and
improve the environme nt for the benefit of the community.
According to Article 28(f ), it is the duty of every person to pro-
tect nat ure and conser ve its riches. Although Artic le 29 states
that t he Directive Principles of State Policy and Fundame ntal
Duties a re not justiciab le,54 the Sri Lankan Courts have given
recognition to these principles, which they have read in the light
of principles of international law. In a dualist country such as Sri
Lanka, they have been an invaluable aid to the incorporation of
international law, and have facilitated the infiltration of interna-
tional public and community values into the domestic legal sys-
tem. The Sri Lankan Constitution does not provide for the right
to life, and its chapter on fundamental rights deals mainly with
civil and poli tical rights, with limited protection of social, eco-
nomic and cultural rights. Given these limitations, broad inter-
pretations of the Directive Principles by the judiciary can tru ly
advance social justice. As pointed out by Savithri Goonesekere:
The j urispruden ce being d eveloped i n the Indi an
Supreme Court is important for Sri Lanka and South
Asia, since it provid es in sights into the manner in
which pol icy perspectives recognized in in ternational
standards can be in tegrated into domes tic law. This
process is importan t because international treaties in
India and Sri Lanka as well as some other countries do
not become locally enforceable as law unless they are
integrated into local law by courts and legislatures.55
Many public nuisance cases constitute the relevant jurispru-
dence in the pre -environmental era. The first such major case
in Sri Lanka after the enactment of the National Environmental
Act (“NEA”) wa s Keangnam Enterprises Ltd. v. Abeysinghe.56
It arose from a complaint by the inhabitants of a village in the
North-Western province to the Magistrate’s Co urt (“MC”) of
Kurunegala regar ding public nuisance from blasting and met al
quarrying operations. The metal was used to develop a major
road. Exces sive noise and vibration from bla sting day and
night had led to severe damage to person and property, includ-
ing insomnia, fea r psychosis, loss of hearing and bu rsting of
ear-drums, the drying up of well s, failure of crops, and struc-
tural damage to property. The Magistrate granted an injunction
restraining the operation of the quarry and a conditional order
to rem ove the nu isance, upon which the company applied for
revision to the Court of Appeal (“CA”) und er Article 138 of
the Cons titution. The Keangnam company had obtained some
licenses, such as a site clearance , but not an En vironmental
45 SUSTAINABLE DEVELOPMENT LAW & POLICY
Protection Licence (“EPL”) as required by the NEA. The CA
insisted on this requirement, which the company had applied for
but not yet obtained. The Court also did not accept the argu-
ment that the possession of an EPL would oust Magisterial juris-
diction for public nuisa nce, since the company did not have a
license.57 In a subsequent case, the MC stated that the blasting
of rocks and operation of a metal crusher amounted to a pub-
lic nuis ance, even tho ugh the compan y had an EPL, since the
terms of the EPL were bein g violated, causing severe damage,
including physical injury to persons, damage to over 100 houses,
and metal dust pollution.58 The qu arry was required to comply
with the standards set by the Central Environm ental Authority
(“CEA”) in the EPL. A conditional order for the remo val of a
public nuisance w as also granted in a c ase of pollution f rom
untreated c hemical effluents disch arged into public waterways
by a textile dying plant causing skin rashes; a lime kiln around
which there was an increased incidence of cancer and tuberc u-
losis; a factory producing rubber gloves and boots which caused
groundwater pollution from toxic chemicals an d wastes lead-
ing to respiratory problems; and a factory pr oducing sulphuric
acid.59 In Hettiarachchige Premasiri et al. v. Dehiwala – Mount
Lavinia Mun icipal Council,60 pu blic nuisance provi sions were
used for the removal of a nuisance, in this case garbage, causing
a major threat to public health as well as danger to a bird sanctu-
ary in the vicinity. Since the nuisance was not removed by the
Municipal Council in spite of having been given ample time, the
interim order was made absolute.
In all these cases, the env ironmental factor weighed heav-
ily with the courts. While this is indeed a welcome position, it
is submitted that sustainable development rather th an environ-
mental protection per se should be the guide to both legislation
and case law in the developing country context. Public nuisance
being a criminal law remedy does not allow much leeway for
the balancing of conflicting interests, un like its civil law coun-
terpart, private nuisance. The facts o f the above cases are such
that the decisions appear to be just and equitable. However, this
may not always be the case, and it is important that environ-
mental p rotection does not become a counterproductive issue.
Nuisance remedies are ex post facto, and in this sense, Environ-
mental Impact Assessments (“EIAs”) provide a better source of
protection, as they are prospective and can adopt a preventive
approach.
PIL has also become a common feature in cases concern-
ing deve lopment, environment, and human r ights, which hav e
closely linked jurisprudence in Sri Lanka.61 These cases usually
involve executive or administrative action and, frequently, busi-
ness activities. When major administrative decisions concern the
natural resources of the country an d other impor tant issues of
public i nterest, there is little room for the community at large
to question these decisions, to be informed about their implica-
tions, and to ensure accountable and good governance.62 Deci -
sions are sometimes made behind closed doors and a culture of
disclosure is not common in public affairs.63 In this context, PIL
serves as a legal tool to raise issues of social accountabilit y in
decision-making by the government and industry.
In S ri Lanka, most environmen tal cases have been based
on rem edies in a dministrative law, fundamental rights, public
nuisance, and the public trust doctrine. Th e question of locus
standi usually arises in writ applications, which are particularly
useful in invalidating unlawful action by g overnmental bodies
and compelling them to carry out their statutory duties, respec-
tively.64 The first Sri Lankan case in the nature of PIL in the
environmen t/development context was Environmental Foun-
dation Ltd. v. The Land Commissioner et al. (“The Kandalama
case”),65 which concerned the gra nting of a lea se of state l and
to a private company for the purpose of building a tourist hotel.
The hotel was to be built in close proximity to an ancient tank
and sacred Buddhist temple, u psetting the local envir onment,
both natural and cultural. In spite of the public interest suit ques-
tioning the irregularity of the lease, and in contravention of the
relevant statutory pr ovisions, the project d id go t hrough. The
positive effect of the case was that the authorities were ordered
by the court to follow the correct procedure and were compelled
to do so by providing notice in the newspaper. This case was the
first in Sri Lanka to uphold the standing of an NGO dedicated to
the cause of environmental protection. It had important implica-
tions with respect to access to justice, the role of the judiciary,
access to information, public partici pation in decision-making,
and compliance with and implementation of the law. The Envi-
ronmental Foundation (“EFL”) has since 19 81 filed action in
environmental matters without its locus standi being challenged.
Environmental Foundation Li mited et al. v. The Attorney
General (“The Nawimana case”)66 was a class action brought by
residents of two villages in the south of Sri Lanka and involved
a fundamental rights petition over serious damage to health and
property caused by quarry-blasting operations. The petition-
ers alleged the violation of several Constitutional provisions,
namely, that sovereignty is in the people and is inalienable and
includes fundamental rights; that no per son shall be subjected
to torture or to cruel, inhuman, or degrading treatment; the free-
dom to engage in any lawful occupation; freedom of movement
and of choosing a residence;67 as well as the Directive Principles
of state policy.68 The case was settled through mediation of the
CEA, and the petitioners obtained relief. The court recognized
the possibility of invoking fundament al righ ts prov isions in
environment-r elated cases, and the connectio n between envi-
ronment, development, and human rights. It also accept ed, by
a majority decision, the possibility of public interest litigation,
since the first petitioner was an environmental NGO.
In En vironmental Foundati on Ltd. v. Ratnasiri Wickrem-
anayake, Minister of P ublic Administration et al.,69 there was
an unequivocal recognition of the possibility of bringing public
interest litigation in suitable cases. Until this judgment, cases in
the natu re of public interest suits had been heard, but with no
pronouncements on their acceptability as a matter of principl e.
The judgment is therefore significant because it disposes of the
issue as to whether public interest litigation is admissible in the
Sri Lankan legal system. In this certi orari application, Justice
Ranaraja expressly extended locus standi to a person who shows
a genuine interest in the subject matter, who comes before the
46FALL 2009
court as a public-spirited person, concerned to see that the law
is obeyed in the intere st of all. Unless any citi zen has stand-
ing, the refore, there is no means of keeping public authorities
within the law except where the Attorney General will act, and
frequently he w ill not.70 In Des han Harinda (a minor) et al.
v. Ceylon Electricity Board et al. (“The Kotte Kids case”),71 a
group of minor children filed a fundamenta l rights application
alleging that t he noise from a thermal power p lant generato r
exceeded national noise standards and would cause hearing loss
and other injur ies. Standing was granted for the case to pro-
ceed on the basis of a violation of the right to life. Although the
Sri Lankan Constitutio n does not
expressly provide for the right to
life, it was argued that all oth er
right s woul d be meani ngless
and fu tile without its existence,
at least impliedly. The case w as
settled, as the petitioners agreed
to accept an ex gratia payment
without prejudice to their civil
rights, so there is no adjudica-
tory decision.
In Gunarathne v. H om-
agam a Pra deshiya Sabh a et
al.,72 in what was the first express
reference to sustainable develop-
ment by th e Supreme Court, it
was noted that: “Publicity, trans-
parency and fairness are es sen-
tial if t he goal of susta inable
development is to be achieved.”
Here, the court r efers expressly
to the prime e lements of goo d
governance, intrinsic to the con-
cept of sustainable development.
The cou rt stated tha t the CEA and
local authoriti es must notify the neighborhood and hear objec-
tions, a s well as inform the industrialists and hear their views
in decidi ng whether to issue an E PL. The Court imported this
requirement in the lice nsing process e ven though the law was
silent on the matter. The Court also required that agencies give
reasons for their decisions and must inform the partie s of such
reasons, th us introducing facets of natural justice. In Lalanath
de Silva v. The Minister of Forestry and Environment (“The Air
Pollution case”),73 the petitioner averred that the Minister’s fail-
ure to enact ambient air quality standards resulted in a violation
of his right to life. The Supr eme Court order ed the enactment
of regulations to control air pollution from vehicle emissions in
the city of Colombo. Regulations were enacted pursuant to this
decision, which had the effect of ensuring steps for implementa-
tion of the law and compliance with it.74 Leave to proceed with
this case was granted on the basis of a viol ation of the right to
life, however, the case was decided through an order for making
regulations without deal ing with the issue of the r ight to l ife.
This case is significant for the role of civil society with regard to
laws and their implementation because th e petitioner, although
himself a lawyer, appeared in his capacity as a member of the
citizenry.
The case of Tikiri Band a Bulankulama v. Secretary, Min-
istry of Ind ustrial De velopment75 is a significant example of
how c onsensus reached in New York, Geneva, or The Hague
can touch the lives, livelihoods, and e nvironments of people
in a remote villa ge on a distant island . This case concerned a
joint venture agreement between the Sri Lankan government and
the local subsidiary of a transnational corporation for the min-
ing of phosphate in the Nort h-Central Province. The terms of
the min eral investment agreement
were high ly beneficial to t he
company and showed little con-
cern for human ri ghts and the
enviro nment; indig enous cul-
ture, history, religion and value
systems; and the requisites of
sustai nable developm ent as a
whole. It was the subject of a
public in terest suit by the local
villa gers (in cluding rice and
dairy farmers, owners of coco-
nut l and, and the i ncumbent
of a Buddh ist temple) in t he
Supreme Court.
The proposed project was
to lead t o the displacement of
over 2,600 famil ies, consi st-
ing of ar ound 12, 000 perso ns.
The Supreme Court found tha t
at previous rates of ex traction,
there would be enough depos-
its for perhaps 1,000 years, but
that the propo sed agre ement
would lead to complete exhaustion
of phosp hate in around 30 years. According to Justice A.R.B.
Amerasinghe, fairness to all, including the people of Sri Lanka,
was the basic yardstick in doing justice. The Court held that there
was an imminent infringement of the fundamental rights of the
petitioners, all local residents.76 The particular rights were those
of equality and equal protection of the law under Article 12(1);
freedom to engage in any lawful occupation, trade, business, or
enterprise under Article 14(1)(g); and freedom of movement and
of choosing a residence within Sri Lanka under Article 14(1)(h).
The judge, after referring to the concepts of sustainable develop-
ment,77 intergene rational equity,78 and human development, as
well as analyzing the agreement with reference to several prin-
ciples of international environmental law, including Principles
14 and 21 of the Stockholm Declaration and Principles 1, 2, and
4 of the Rio Declaration, stated as follows:
In my view, the p roposed agreement must be consid-
ered in the light of the foregoing principles. Admit-
tedly, the principles set out in the Stockholm and Rio
Declara tions are not legally binding in the way in
In the South Asian region
as a whole, public interest
litigation has been useful
in injecting an informed,
participatory, and
transparent approach
to the processes of
development, and to
governmental and private
sector actions involving
public resources
47 SUSTAINABLE DEVELOPMENT LAW & POLICY
which an Act of our Parli ament would be. It m ay be
regarded merely as “soft law.” Nevertheless, as a mem-
ber of the United Nations, they could hardly be ignored
by Sri Lanka. Moreover , they would, in my view, be
binding if they have been either expressly enacted or
become a part of the domestic law by adoption by the
superior courts of record and by the Supreme Court in
particular, in their decisions.79
This pronouncement could hav e significant ramifications
for a dualist country like Sri Lanka, where international law
norms need to be embodied in enabling legislat ion to be bind-
ing on courts. This judgment extends the incorporation process
to the intermediary of the Superior Courts.80 Deepika Udagama
comments th at it is do ubtful that a petition could be grounded
directly on international law and that while international human
rights standards have been increasingly used as interpretive aids,
international law will probably still have to be pleaded to expand
the scope of existing domestic legal provisions.81
The court disallowed the project from proceeding unless and
until legal requirements of rational planning including an EIA
was done. It found that the proposed project would harm health,
safety, livelihoods, and cultural her itage, as it even int erfered
with the Jaya Ganga, a wonder of the ancient world declared as a
site to be preserved under UNESCO’s World Heritage Conven-
tion. This cultural heritage, the court noted, was not renewable,
nor were the historical and archaeological value and the ancient
irrigation tanks that were to be destroy ed. Having considered
the question as to whether economic growth is the sole criterion
for measuring human welfare, the court stated that ignorance
on vital facts of historical and cultural signi ficance on the par t
of perso ns in authority can lead to serious blunders in cur rent
decision-making processes that rel ate to more t han rupees and
cents. The judgment, requiring the cancellation of the project
unless prope r procedures are followed, draws in spiration from
principles of inte rnational envi ronmental law and su stainable
development (in particular the separate opinion of Judge Weera-
mantry in the ICJ ca se, Hungary v. Slovakia82), as well as the
ancient wisdom and local history of conservation, sustainability,
and human rights. The company’s exemption from submitting
its pro ject to an EIA was held to b e an imminent violation of
the equal protection clause. Although the constitution basically
provides only for civil and political rights to be justiciable, the
court allowed for a broader interpretation to include social a nd
economic rights.83 Natural resources of the country were said to
be held in guardianship by all three branches of the government
and the public trust doctrine was recognized. The judge in this
case has been lauded for having taken “the paramet ers of th e
discourse on constitutional protection o f human righ ts to new
heights.”84 Moreover:
While harking back to ancient practices does not gen-
erally provide grounds for a legal judgment, in this
instance, it did make a positive contribution by empha-
sizing the universal a nd timeless nature of concepts
such as sustainabl e development, which are at times
percei ved as ‘western ’ or alien to non- Occidental
societies.85
Mundy v. Centra l Environm ental Autho rity and others86
concerned several appeals relating to the building of the South-
ern Expressway linking Colombo city with the city of Matara on
the Southern coast, an important step in terms of infrastructure
development towards enhancing industry, trade, and investment.
Protracted litigation opposing the project and its different alter-
native routes involved allegations of potential damage to human
rights including large-scale displacement, and injury to the envi-
ronment including sensitive ecosystems. The Court of Appeal
had upheld the developmental interest, holding that when bal-
ancing the competing interests, the conclusion necessarily has to
be made in favor of the larger interests of the community, which
would benefit immensely from the project. The Court gave high-
est priority to the p ublic interest in development, t hen to the
environmental damage to wetland ecosystems, and lastly, to the
human interests of affected persons. Several persons appealed to
the Supreme Court with regard to particular sections of the route
which resulted in the taking of their lands with no arrangements
for co mpensation. The Supreme Court varied the order of the
CA and ordered compensation under the audi alteram principle
of nat ural justice and Constitutional Article 12 (1) on equa lity
and equal protection. In an innova tive, value-laden, and exe m-
plary expre ssion of equity, equality, and social justice, Ju stice
Mark Fernando stated:
If it is permissible in th e exercise of a judicial discre-
tion to r equire a humble villager to forego his right to
a fair procedure be fore he is compelled to sacrifice a
modest plot of land and a little hut bec ause they are
of “extremely negligible” value in relation to a multi-
billion rupee national project, it is nevertheless not
equitable to disreg ard totally the infri ngement of his
rights: the smaller the value of his property the greater
his right to compensation.87
Weer asekera et al . v. Kea ngnam Ente rprises Ltd .88
involved a mining operation alleged to violate public nuisance
law by local citizens because of the noise level of its operation.
The lower court found that because the mining company had
acquired an EPL, they had no jurisdiction to hear the case. The
Court of Appeal overturned this, holding that acquiring a license
for the operation did not excuse the Keangnam mining company
from public nuisance claims over the way they run their opera-
tion. This holding is significant because it limits the ability of
a company to use their Environmental Protec tion License as a
shield to other legal claims over the impacts of their operation.
Still another significant case, Environ mental Found ation
Ltd. v. Urb an Developm ent Authori ty et al.,89 concerned the
proposed leasing out of the Galle Fa ce Green, a popular sea-
side promenade in Colombo city and a major public utility built
by a British governor in the 19th century. It has always been
a treasure d public property for use by one and all, but was by
the terms of the proposed lease to be handed over by the Urban
Development Authority (“UDA”) to a private company to build
a “mega leisure complex.” The Supreme Court, in a fundamental
48FALL 2009
rights app lication, upheld th e argument of the petitioner NGO
to preserve the country’s national heritage for use of the public.
Very significantly, the court upheld the petitioner’s argument of
infringement of the right to information by reading the Const i-
tutional Article 14(1), on the freedom of speech and expression,
as encompas sing a right to information. Th is line of argument
was adopted because the Constitution does not expressly include
the right to information. In view of the clandestine nature of the
agreement between the UD A and the pri vate compan ies, the
Court also held that the petitioner’s rights to equality under Arti-
cle 12(1) had been infringed.
Environmental Foundation Limited has handled over three
hundred cases dealing with environmenta l matters an d is cur-
rently engaged in litigation covering a wide variety of issues.
The Supreme Court has asked the organization to intervene in
a case de aling with the environmental impacts of sand mining.
Other ongoing cases have dealt with ai r pollution and included
court order s for mandatory vehicle emission t esting as well as
a var iety of actions against private par ties for noise pollution
and other torts.90 Public i nterest applications fi led by the C en-
tre for Environmental Justice—another environmental NGO—
involve irregular and/or unregulated mechanized mining an d
transport of sand from sand dunes in a wetland ecosystem in
the North-Western Province, without permits under the relevant
statutes;91 activities threatening the coastal zone and its habitats,
including destruction of mangroves; sand mining; coral extrac-
tion; destructive fishing methods; coastal pollution and improper
constructions—all needing urgent coastal pollution control and
management.
These cases are filed against relevant governmental authori-
ties, pleading for writs of mandamus for carrying out of statutory
duties,92 as the government is the guardian of natural resources
on behalf of present and future generations of the people of Sri
Lanka. The most recent cas e now pending before the Court of
Appeal, and filed by the same NGO, concerns the protection of
a major national park, forming a wetland of international impor-
tance under the Ramsar Convention on Wetlands, and alteration
of the boundaries of this park by the governmental authorities—
Centre for Environmental Justice v. Ministr y of Agriculture,
Environmen t, Irriga tion and Mahaweli Developm ent et al.93
This alter ation would, it is argued, pose a further threat to the
ecosystem, already endangered by landfills, aquaculture farms,
fisheries, pollution, mining of minerals and the clearing of man-
groves. The petition a rgues that the action of the authorities
is in breach of several international conventions includi ng the
Wetlands, Cultural and Natural Heritage, Biodiversity Conven-
tions and the Bonn Convention on Migratory Species of Wild
Animals, several declarations including the Johannesburg Dec-
laration, and relevant articles of the Sri Lankan Constitution. It
requests writs of certiorari and mandamus.
Three d ecades of civ il unrest in Sri Lanka have undoubt-
edly slowed the progress of PIL efforts to increase sustainable
development, and have retarded all development in the island. A
number of other states in South Asia have encountered political
turmoil that creates unique obstacles to sustainable development.
In Sri Lanka, several NGOs demonstrated resilience and resolve
through difficult times and continued to file suits and push sus-
tainable development forward through the court system, which
has by and large been receptive t o their efforts. Now with the
end of the civil war and what one hopes will be the dawn of an
era of recovery, reconciliation and resurrection, there is renewed
scope for sustainable development in the context of justice and
peace; equity and solidarity in bu ilding the nation of post-con-
flict Sri Lanka.
CONCLUSION
In the South Asian region as a whole, public interest liti-
gation ha s been useful in injecting an informed, participatory,
and transparent approach to the processes of development, and
to governmental and private sector actions involving public
resources. It has provided a voice to persons who would other-
wise be unheard. Through PIL, multiple sectors and stakehold-
ers become involved in the devel opment process, as envisag ed
in the idea of sustainable development. PIL has brought forth an
element of accountability, and created a space for the portrayal
of a human face in development. The tool of PIL has afforded a
viable mechanism for compliance with sustainable development
norms in a crea tive, innovative, and imagin ative manner, and
also helped to make the development process more holistic. On
the other hand, however, it has also meant that cour ts become
directly involved in m aking policy d ecisions. This in turn has
both positive and negative ramifications, and is by no means
uncontrovers ial. It could create a system of decis ion-making
that is, in a sense, ex po st facto and decentralized. If not kept
within certain limit s, it could divert the devel opment process
away from the policy-planning objectives of the state, l eading
to inconsistency and incoheren ce. One safeguard here is that
most cases revolve around the central issue of the lawfulness of
a decision or action.
PIL co uld be abuse d, overused, and misused. There must
therefore be checks, balances, and limitations in order that the
development process is not interfered with unnecessarily. Prin-
ciples of intern ational law should be selectiv ely adopted and
suitably adapted to domestic contexts. There is a tendency to use
these tools to oppose development projects, particularly because
of o pposition in the political arena or other d ynamics includ-
ing relig ion, culture, or personal reasons . In order to maintain
its credibility, PIL should be steered towards the attai nment of
sustainable development rather than the opposition to all devel-
opment. What is important is to promote development that is
sustainab le. In fact, the concept of sustainable development
stands for the spi rit of reconcilia tion and cooperati on rather
than conflic t and confrontation, making environmental protec-
tion an integral component of development. Otherwise, it would
be counterproductive to the whole project of development, and
therefore to all persons, who should be at the center of develop-
ment, and its true ben eficiaries. Sustainable development inte-
grates the right to development, and inter and intra-generational
equity. As stated in Article 1 of the Declaration on the Right to
Development, “the right to development is an inalienable human
49 SUSTAINABLE DEVELOPMENT LAW & POLICY
right by virtue of which every human person and all peoples
are entitled to participate in, contribute to, and enjoy economic,
social, c ultural and politi cal development, i n which all human
rights and fundamental freedoms can be fully realized.”94
The content of much of the jurisprudence tends to concern
the negative aspects of large development projects, such as dis-
placement, and of industrialization, such as pollution. This could
be related to the influence of norms of environmental protection
emerging from international law, and the comparative experi-
ence and jurisprudence of the “western” developed world. Envi-
ronmental legislation in developing countries often emu lates
that of developed countries, and is sometimes a virtual reproduc-
tion. This is not an ideal practice, as the context of each coun-
try is different. On some occasions, explicit reference has been
made to international law. At other times there is no reference
and the reas oning proce ss is independent, but t he argument s
and decisions come remarkably close to the law of sustainable
development. What is c lear is that the domestic jurisprudence
is influenc ed by international law, and how this law has taken
shape in the domestic courts of several states in South Asia, as
judiciaries in the region have been influenced by developments
in neighboring states.
Many concerns have been raised about the enforcement of
decisions flo wing from PIL, which often lags behind the deci -
sions and orders. In fact, the experience of South Asia has been
that implementation and enforcement have tended to lag behind
the adjudication of cases and making of orders. If enforcement
does n ot keep pac e with the jurisprudence, the whole process
will become futile and counterproductive. Therefore, an effort
must be made to ensure expedient enforcement of orders. Orders
frequently giv e remedies such as the installation of safeguards
in factories, rather than their closure, and this is in line with the
constructive spirit of sustainable development in its quest for a
balance. Equilibrium, the middle path and mutual accommoda-
tion interconnect with strands of the complex web of the South
Asian heritage - in all its diversity and yet the unity of all phe-
nomena, its abject poverty and yet the abundance of its wealth.
1 
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available at 
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able at


3 



4 
available at
5 


6 available at


7 See, e.g., Bhopal, Settlement or Sell-Out?the lawyers

8 

available at

9 Private International Law & Public International Law
rivista Di DirittO internaziOnale private e prOCessuale
10 
inDia CODe
inDia CODe
inDia CODe










11 

12 

supra 
13 inDia COnst.nepal COnst.

sri lanKa COnst.

sri lanKa COnst.


sri lanKa COnst.




Endnotes: TOWARDS A JURISPRUDENCE OF SUSTAINABLE DEVELOPMENT IN
SOUTH ASIA: LITIGATION IN THE PUBLIC INTEREST
Endnotes: Towards a Jurisprudence of Sustainable Development in
South Asia: Litigation in the Public Interest continued on page 86