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Judges & Environmental xxi Judges & Environmental Law A Handbook for the Sri Lankan Judiciary 2009 Published by : Environmental Foundation Limited No. 146/ 34, Havelock Road Colombo 5, Sri Lanka Tel: + (94 11) 250 2609 Fax: + (94 11) 452 8483 Email: [email protected] Website: www.efl.lk Sponsored by : United Nations Environment Programme (UNEP) © United Nations Environment Programme, 2009 This publication may be produced in whole or in part and in any form for educational or non-profit purposes without special permission from the copyright holder, provided acknowledgement of the source is made. UNEP would appreciate receiving a copy of any publication that uses this publication as a source. No use of this publication may be made for resale or any commercial purpose whatsoever without prior permission in writing from the United Nations Environment Programme. DISCLAIMER The contents and views expressed in this publication do not necessarily reflect the views or policies of the United Nations Environmental Programme or its member states. The designations employed and the presentation of material in this publication do not imply the expression of any opinion whatsoever on the part of UNEP concerning the legal status of any country, territory or city or its authorities, or concerning the delimitations of its frontiers and boundaries. This publication is available online from: www.sljti.org and www.efl.lk ISBN : 978-955-8302-03-3 Designed & : Karunaratne & Sons (Pvt) Ltd. Printed by No. 67, UDA Industrial Estate Katuwana Road Homagama, Sri Lanka [email protected] The Judicial Editorial Panel The Judicial Editorial Panel appointed by the Sri Lanka Judges’ Institute played an important role in the process leading up to this publication. The panel, comprising of Justice Shiranee Tilakawardane (Judge of the Supreme Court of Sri Lanka), Justice Nissanka Udalagama (former Judge of the Supreme Court of Sri Lanka and Director of the Sri Lanka Judges’ Institute), Justice N.E. Dissanayake (former Judge of the Supreme Court of Sri Lanka) & Justice L.K. Wimalachandra (former Judge of the Court of Appeal of Sri Lanka) read and commented on drafts produced by the authors, and provided guidance and direction to the development of the several chapters. This publication would not have been possible without their input. iii iv Contributors Editor Mario Gomez Authors Chapter 1: Environmental Challenges and Basic Legal Principles Manishka De Mel (Environmental Scientist) and Nilshantha Sirimanne (Attorney-at-Law) Chapter 2: Environmental Laws, Institutions and Mechanisms: An Overview Anandalal Nanayakkara (Attorney-at-Law) Chapter 3: How Environmental Cases Come before the Courts Ruana Rajepakse (Attorney-at-Law) Chapter 4: The Interpretation of Scientific Evidence in Environmental Cases Jagath Gunawardana (Attorney-at-Law) Chapter 5: Multilateral Environmental Agreements and the Sri Lankan Legal System Rukshana Nanayakkara (Attorney-at-Law), assisted by Wardani Karunaratne (Attorney-at-Law) Editorial assistance Venuri De Silva, Manishka De Mel and Wardani Karunaratne, Environmental Foundation Limited v Acknowledgements Many individuals and organisations contributed to this publication. Without their support the publication would not have been possible. We would like to thank: The Chief Justice Honourable Asoka de Silva for his support. The Judicial Editorial Panel comprising of Justice Shiranee Tilakawardane (Judge of the Supreme Court of Sri Lanka), Justice Nissanka Udalagama (former Judge of the Supreme Court of Sri Lanka and Director of the Sri Lanka Judges’ Institute), Justice N.E. Dissanayake (former Judge of the Supreme Court of Sri Lanka) and Justice L.K. Wimalachandra (former Judge of the Court of Appeal of Sri Lanka) for their input. Former Chief Justice, Honourable Sarath N. Silva. The Sri Lanka Judges’ Institute. The United Nations Environment Programme (UNEP) for financing this publication. Bakary Kante, Director, Division of Environmental Law and Conventions (UNEP). Lal Kurukulasuriya, Director, Centre for Environmental Research, Training and Information (CERTI) for conceptualising this publication, and for his support and direction. The Editor of the publication, Mario Gomez. The authors of this publication Ruana Rajepakse, Jagath Gunawardana, Anandalal Nanayakkara, Rukshana Nanayakkara, Nilshantha Sirimanne and Manishka De Mel. Wardani Karunaratne for her research. Sharmini Ratwatte, Chair of the Environmental Foundation Limited, for her guidance and inspiration. Venuri De Silva, Manishka De Mel, Wardani Karunaratne and the team at Environmental Foundation Limited (EFL) for coordinating, providing editorial support and research for the publication. vi Message from the Chief Justice of Sri Lanka The purpose of law is to provide order, stability and justice. Thus viewed, the law consists of relatively fixed rules which regulate conduct according to the values shared by a community. Many factors and institutions contribute to moulding the notion of justice. Individual perceptions of justice vary in terms of personality, training and social and economic position. Justice has different meanings to the employer and employee, to the millionaire and the pauper, to the industrial worker and the farmer, to a liberal and conservative. The twentieth century saw tremendous strides made by man in the spheres of technology and industry. Yet this was accompanied by decades of neglect by man towards his natural surroundings. Modern society has come to realise that its very existence is intertwined with that of the environment. Thus the law incorporated this ‘new value’ of environmental conservation. However it cannot be denied that for the effective maintenance of law and order in a state, action by government authorities alone to administer the law of the land is insufficient to secure the objectives, unless there is active cooperation of the citizens. Modern environmental law provides for a system of regulation by statute. Administrative agencies established under the environmental statutes are required to implement legislative mandates. Due to various factors such as lack of staff or personnel, finances or will, these agencies failed to implement the laws under which they operate. The resulting position is that ecological degradation continues unabated. In this situation citizens have no choice but to seek redress from court. The Environmental Foundation Limited has already taken the initial step of educating the public of the importance of conservation and protection of the Sri Lankan environment. By preparing the handbook for the judiciary in consultation with the Judges’ Institute, they have gone one step further. Judges cannot be expected to have all the laws at their fingertips. In this respect, ‘Judges & Environmental Law: A Handbook for the Sri Lankan Judiciary’, is a handy reference to assist them in dispensing justice in this field. J.A.N. de Silva Chief Justice vii Message from the Judicial Editorial Panel The judiciary plays a pivotal role in shielding and conserving the environment. Courts are the forum through which the environmental laws are implemented. Lawyers, prosecutors, aggrieved parties whether as individual petitioners or as public interest petitioners, must all necessarily access the courts system to ensure that both state and private sectors act in compliance with the legal regime on the environment. This publication brings together a collection of essays on different aspects and perspectives of the environment and the law. It seeks to complement the knowledge of judges in the enforcement of Sri Lanka’s environmental laws and recognises them as vital in the effectual implementation of environmental legislation and its policies. Despite considerable progress in recent years, much remains to be done to restore and preserve Sri Lanka’s natural resources and its rich biodiversity. All Sri Lankans, as custodians of the environmental rights of future generations, share a common goal and responsibility to be accountable and responsible for long term environmental sustainability. Judges, as interpreters of the constitution, statutes and environmental policies, and as guardians of the rule of law, are recognised for their unique role in the substantive and effective implementation of the law. This publication is the product of a process of collaboration between specialists on the environment and the law. We, as members of the Judicial Editorial Panel, are delighted to have been part of this important endeavour and to have contributed with suggestions and ideas to consolidate the drafts prepared by the individual authors. We would like to thank the Sri Lanka Judges’ Institute, the Environmental Foundation Limited, the United Nations Environmental Programme and the several authors for their invaluable input. We commend this publication and hope that it will make an important contribution to the environmental security in Sri Lanka. Justice Shiranee Tilakawardane Judge of the Supreme Court of Sri Lanka Justice Nissanka Udalagama Former Judge of the Supreme Court of Sri Lanka Director of the Sri Lanka Judges’ Institute Justice N.E. Dissanayake Former Judge of the Supreme Court of Sri Lanka Justice L.K. Wimalachandra Former Judge of the Court of Appeal of Sri Lanka viii Message from Director United Nations Environment Programme I am happy to note that this publication, Judges & Environmental Law: A Handbook for the Sri Lankan Judiciary written under the editorial direction of a team of judges of the Supreme Court and Court of Appeal of Sri Lanka, explores the
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