R E M E D I E S

A V A I L A B L E U N D E R
T H E C O M M O N L A W
A N D S T A T U T O R Y
L A W F O R T H E
V I O L A T I O N O F
T H E R I G H T T O
E N V I R O N M E N T

V I S H WA D E L I V E R A
T E N N E KO O N

AT T O R N E Y- AT- L A W

12 /0 7/ 2024
EXAMPLES AROUND THE GLOBE

Ecuador (2008): Ecuador's Constitution is particularly notable for granting rights to nature itself. It recognizes
nature's "right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in
evolution."

Brazil (1988): The Brazilian Constitution includes a chapter on the environment, asserting the public's right to
an ecologically balanced environment and the government's duty to defend and preserve it for present and
future generations.

South Africa (1996): South Africa's Constitution includes a section on environmental rights, stating that
everyone has the right to an environment that is not harmful to their health or well-being.
EXAMPLES AROUND THE GLOBE

India (1976): Through the 42nd Amendment, India added a provision to its Constitution obligating the state to
protect and improve the environment and to safeguard the country's forests and wildlife.

France (2004): France's Environmental Charter, which has constitutional status, states that everyone has the
right to live in a balanced environment which shows due respect for health.

Norway (1992, revised in 2014): Norway's Constitution includes a provision that states the people have a right
to a healthy environment and that the natural resources should be managed based on comprehensive long-term
considerations which will safeguard this right for future generations.
EXAMPLES AROUND THE GLOBE

Kenya (2010): The Kenyan Constitution includes provisions for environmental rights, stating that every
person has the right to a clean and healthy environment and obligating the state to eliminate processes and
activities that are likely to endanger the environment.

Bolivia (2009): Bolivia's Constitution recognizes the rights of the environment, or "Pachamama," where life is
reproduced and occurs. It mandates that the state will develop policies to protect biodiversity and prevent
environmental destruction.

Costa Rica: Costa Rica's Constitution was amended to include environmental rights, recognizing the right to a
healthy and ecologically balanced environment.
RIGHT TO ENVIRONMENT
Ravindra Gunawardena Kariyawasam Vs. Central Environment
Authority and Others (Chunnakam Power Station Case) as per Justice
Prasanna Jayawardene PC;
• Finally, to consider the question of whether the scope of Article 12 (1) of the Constitution extends
to environmental rights in appropriate circumstances, the Supreme Court of India has firmly
declared that the people of that country have a fundamental right to a clean environment as part of
the right to life guaranteed by Article 21 of the Constitution of India.

• Thus, in ND JAYAL vs. UNION OF INDA [at para. 22], the Supreme Court of India stated “In a
catena of cases we have reiterated that right to clean environment is a guaranteed
fundamental right.”.
RIGHT TO ENVIRONMENT
Ravindra Gunawardena Kariyawasam Vs. Central Environment
Authority and Others (Chunnakam Power Station Case) as per Justice
Prasanna Jayawardene PC;
• In Sri Lanka, Tilakawardane J., in WIJEBANDA vs. CONSERVATOR GENERAL OF FORESTS
stated [at p. 356],

“The right of all persons to the useful and proper use of the environment and the conservation
thereof has been recognized universally and also under the national laws of Sri Lanka. While
environmental rights are not specifically alluded to under the fundamental rights chapter of the
Constitution, the right to a clean environment and the principle of inter generational equity
with respect to the protection and preservation of the environment are inherent in a
meaningful reading of Article 12 (1) of the Constitution.”.
RIGHT TO ENVIRONMENT
Ravindra Gunawardena Kariyawasam Vs. Central Environment Authority and
Others (Chunnakam Power Station Case) as per Justice Prasanna Jayawardene PC;
• While I am in respectful agreement with Justice Tilakawardane, I wish to add that, in my view, when
Article 12 (1) of the Constitution is read in the light of Article 27 (14) of the Constitution, it
vests in the citizens of Sri Lanka 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. In this connection, I note that in ASHIK
vs. BANDULA, O-I-C WELIGAMA [2007 1 SLR 191 at p.193], Silva CJ mentioned that the Court was
acting in the public interest “to make a determination as to the effective guarantee of the
fundamental right enshrined in Article 12 (1) of the Constitution for the equal protection of the law in
safeguarding the People from harmful effects of noise pollution.”.
D I R E C T I V E P R I N C I P L E S O F S TAT E
POLICY
CHAPTER VI

DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES

Article 27 - Directive Principles of State Policy

(1) The Directive Principles of State Policy herein contained shall guide
Parliament, the President and the Cabinet of Ministers in the enactment of laws
and the governance of Sri Lanka for the establishment of a just and free
society.
D I R E C T I V E P R I N C I P L E S O F S TAT E
POLICY
CHAPTER VI

DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES

Article 27 - Directive Principles of State Policy

(2) The State is pledged to established in Sri Lanka a Democratic Socialist

Society, the objectives of which include –

(14) The State shall protect, preserve and improve the

environment for the benefit of the community.
D I R E C T I V E P R I N C I P L E S O F S TAT E
POLICY
Article 28 - Fundamental duties

The exercise and enjoyment of rights and freedoms are inseparable from the performance of
duties and obligations and accordingly it is the duty of every person in Sri Lanka -

(a) to uphold and defend the Constitution and the law;

(b) to further the national interest and to foster national unity;

(c) to work conscientiously in his chosen occupation;

(d) to preserve and protect public property and to combat misuse and waste of public property;

(e) to respect the rights and freedoms of others; and

(f) to protect nature and conserve its riches

D I R E C T I V E P R I N C I P L E S O F S TAT E
POLICY
Article 29 - Principles of State Policy and fundamental duties not justifiable

The provisions of this Chapter do not confer or impose legal rights or

obligations and are not enforceable in any court or tribunal. No question of
inconsistency with such provisions shall be raised in any court or tribunal.
D I R E C T I V E P R I N C I P L E S O F S TAT E
POLICY
Chunnakam Power Station Case as per Justice Prasanna Jayawardene PC;

In WIJEBANDA vs. CONSERVATOR GENERAL OF FORESTS [at p. 356] Tilakawardane

J. stated “The constitution in Article 27 (14) of the directive principles of state policy
enjoins the state to protect, preserve and improve the environment. Article 28 refers to
the fundamental duty upon every person in Sri Lanka to protect nature and conserve its
riches.”.

In ENVIRONMENTAL FOUNDATION LTD vs. MAHAWELI AUTHORITY OF SRI LANKA

[2010 1 SLR 1 at p.19], Ratnayake J observed “Although it is expressly declared in the
Constitution that the Directive principles and fundamental duties 'do not confer or impose
legal rights or obligations and are not enforceable in any Court of Tribunal' Courts have
linked the Directive principles to the public trust doctrine and have stated that these
principles should guide state functionaries in the excise of their powers.”
D I R E C T I V E P R I N C I P L E S O F S TAT E
POLICY
Chunnakam Power Station Case as per Justice Prasanna Jayawardene PC;

“The CEA and BOI which are agencies of the State are to be guided by these directive
principles and fundamental duties when carrying out their statutory and regulatory duties.
The Directive Principles of State Policy are not wasted ink in the pages of the
Constitution. They are a living set of guidelines which the State and its agencies
should give effect to.

Thus, where a petitioner complains of a violation of his fundamental rights arising from the
breach of a statutory or regulatory duty by the State or an agency of the State, a
demonstration that the violation is also in contravention of one or more of the Directive
Principles of State Policy, will lend strong support to his case.
C H U N N A K A M P O W E R S TAT I O N C A S E
A S P E R J U S T I C E J AYA W A R D E N E P C ;
•I might add that, access to clean water is a necessity of life and is inherent in Article 27 (2) (c) of the
Constitution which declares that the State must ensure “the realization by all citizens of an adequate
standard of living for themselves and their families, including adequate food, clothing and housing, the
continuous improvement of living conditions and the full enjoyment of leisure and social and cultural
opportunities.”.

•It is public knowledge that the majority of the people of our country have ready access to clean water
which is provided by the apparatus of the State. It is also undisputed that prior to the pollution of
groundwater in the Chunnakam area referred to earlier, the residents of that area had clean water.
Thus, the pollution referred to earlier has deprived the residents of the Chunnakam area of access to
clean water. They have, thereby, been placed at a significant disadvantage when compared to
residents elsewhere in the country.
F U N D A M E N TA L R I G H T S
Article 12 Right to equality

(1) All persons are equal before the law and are entitled to the equal protection
of the law.

(2) No citizen shall be discriminated against on the grounds of race, religion,

language, caste, sex, political opinion, place of birth or any one of such
grounds:
C H U N N A K A M P O W E R S TAT I O N C A S E
A S P E R J U S T I C E J AYA W A R D E N E P C ;
•Further, with regard to the case before us, it seems to me that when Article 12 (1) guarantees that “All
persons are equal before the law and are entitled to the equal protection of the law”, it vests in the residents
of the Chunnakam area a constitutionally guaranteed right to be protected by the provisions of the
National Environmental Act to the same extent that residents elsewhere in the country would be
protected by the same Act. This, in turn, grants the residents of the Chunnakam area the right to
legitimately expect that the CEA and BOI will fulfil their duties under the Act and the applicable Regulations
in relation to the 8th respondent’s thermal power station and not act in breach of these duties, just as these
statutory authorities are required to do and have done in relation to comparable projects anywhere else in
the country. Therefore, an arbitrary or unreasonable failure on the part of the CEA and the BOI to
perform their duties under the National Environmental Act and the regulations made thereunder which
causes loss, damage and inconvenience to the residents of the Chunnakam area, will entail a violation of
their rights guaranteed by Article 12 (1).
F U N D A M E N TA L R I G H T S
Article 14A - Right of access to information

(1) Every citizen shall have the right of access to any information as provided for by law,
being information that is required for the exercise or protection of a citizen's right held by:-

(a) the State, a Ministry or any Government Department or any statutory body
established or created by or under any law;

(b) any Ministry of a Minister of the Board of Ministers of a Province or any

Department or any statutory body established or created by a statute of a Provincial
Council;

(c) any local authority; and

(d) any other person, who is in possession of such information relating to any
institution referred to in sub-paragraphs (a), (b) or (c) of this paragraph.
F U N D A M E N TA L R I G H T S
Article 126 - Fundamental rights jurisdiction and its exercise

(1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question
relating to the infringement or imminent infringement by executive or administrative action of any
fundamental right or language right declared and recognized by Chapter III or Chapter IV.

(2) Where any person alleges that any such fundamental right or language right relating to such
person has been infringed or is about to be infringed by executive or administrative action, he may
himself or by an attorney-at-law on his behalf, within one month thereof, in accordance with such
rules of court as may be in force, apply to the Supreme Court by way of petition in writing addressed
to such Court praying for relief or redress in respect of such infringement. Such application may be
proceeded with only with leave to proceed first had and obtained from the Supreme Court, which
leave may be granted or refused, as the case may be, by not less than two judges.
ARTICLE 126

Bulankulama and Others v. Secretary, Ministry of Industrial Development and others

(Eppawela Phosphate mining case) – 2000 (3) SLR 243

Environmental Foundation Limited Vs. UDA, SCFR 47/2004, S.C. Minutes of 28.11.2005

Wijebanda Vs. Conservator General of Forests (2009) 1 Sri.L.R. 337

ARTICLE 126

The Supreme Court in Al Haj M.T.M. Ashika Vs. R.P.S. Bandula, OIC Weligama
(Noise Pollution case) allowed the intervention of EFL which was not a party to the
case which involved a dispute between two groups wanting to use loudspeakers,
was permitted to intervene as amicus curiae on behalf of the Public.

In Peiris Vs. Rupasinhghe (1999) 6 S.A.E.L.R. 141 which involved a physical

attack on the head of an organisation that was campaign on an environmental
issue. The Court held that there had been an infringement of the Petitioner’s rights
under Articles 14(1)(a), 14(1)(b) and 14(1)(c).
ARTICLE 121
Ordinary exercise of constitutional jurisdiction in respect of Bills

(1) The jurisdiction of the Supreme Court to ordinarily determine any such question
as aforesaid may be invoked by the President by a written reference addressed to
the Chief Justice, or by any citizen by a petition in writing addressed to the Supreme
Court. Such reference shall be made, or such petition shall be filed, 117 [within
fourteen days] of the Bill being placed on the Order Paper of the Parliament and a
copy thereof shall at the same time be delivered to the Speaker. In this paragraph
"citizen" includes a body, whether incorporated or unincorporated, if not less than
three-fourths of the members of such body are citizens.
ARTICLE 140
Power to issue writs, other than writs of habeas corpus

Subject to the provisions of the Constitution, the Court of Appeal shall have full
power and authority to inspect and examine the records of any Court of First
Instance or tribunal or other institution and grant and issue, according to law,
orders in the nature of writs of certiorari, prohibition, procedendo, mandamus
and quo warranto against the judge of any Court of First Instance or tribunal or
other institution or any other person:
ARTICLE 140
Heather Therese Mundy Vs. Central Environmental Authority S.C.
Appeal 58 / 2003, S.C. Minutes 20.01.2004 Fernando, J states thus;

“Powers vested in public authorities are not absolute and unfettered

but are held in trust for the public, to be exercised for the purpose for which
they have been conferred, and that their exercise is subject to judicial
review by reference to those purposes.”
ARTICLE 140
The case of Wijesiri V. Siriwardena 1982 (1) SLR 171 confirmed the right of
the Petitioners to file writ applications in the public interest.

Read:

Environmental Foundation Limited Vs. Land Commissioner 1993 (2) SLR

41

EFL Vs. CEA, C.A Application No. 1556/2004, C.A> Minutes of 31.07.2006

Center for Environmental Justice (Guarantee) Ltd Vs. Anura

Satharasinghe & Others (the Willpattu Case) decided on 16.11.2020
ARTICLE 154 P (4)(B)
Every such High Court shall have jurisdiction to issue, according to law-

(a) orders in the nature of habeas corpus, in respect of persons illegally detained
within the Province; and

(b) order in the nature of writs of certiorari, prohibition, procedendo, mandamus

and quo warranto against any person exercising, within the Province, any power
under -

(i) any law; or

(ii) any statutes made by the Provincial Council established for that Province,

in respect of any matter set out in the Provincial Council List.

T H E C O N S T I T U T I O N O F B U H TA N
ARTICLE 5. ENVIRONMENT

1. Every Bhutanese is a trustee of the Kingdom's natural resources and environment for the benefit of the present and future generations and it is the fundamental
duty of every citizen to contribute to the protection of the natural environment, conservation of the rich biodiversity of Bhutan and prevention of all forms of
ecological degradation including noise, visual and physical pollution through the adoption and support of environment friendly practices and policies.

2. The Royal Government shall:

1. Protect, conserve and improve the pristine environment and safeguard the biodiversity of the country;
2. Prevent pollution and ecological degradation;
3. Secure ecologically balanced sustainable development while promoting justifiable economic and social development; and
4. Ensure a safe and healthy environment.

3. The Government shall ensure that, in order to conserve the country's natural resources and to prevent degradation of the ecosystem, a minimum of sixty
percent of Bhutan's total land shall be maintained under forest cover for all time.

4. Parliament may enact environmental legislation to ensure sustainable use of natural resources and maintain intergenerational equity and reaffirm the
sovereign rights of the State over its own biological resources.

5. Parliament may, by law, declare any part of the country to be a National Park, Wildlife Reserve, Nature Reserve, Protected Forest, Biosphere Reserve, Critical
Watershed and such other categories meriting protection.
CRIMINAL PROCEDURE CODE
• Provisions in relation to Public Nuisance – Section 98 – Section 106

• Section 261 of the Penal Code

C I V I L S U I T S F O R P R I VAT E
NUISANCE
• Cause of action – Section 5 CPC

Neglect to perform a duty and the infliction of an affirmative injury

Class Action with permission of Court – Section 16 CPC

Interim Injunction – Section 54 Judicator Act & Section 662 – Section 667 CPC
S TAT U T O RY O F F E N C E S A N D
E N V I R O N M E N T R E L AT E D L AW S
Public Nuisance Ordnance

Coast Conservation Act No. 57 of 1981

Fauna and Flora Protection Ordinance No. 2 of 1937

Forests Ordinance No. 16 of 1907

Marine Pollution Act No. 35 of 2008

Mines and Minerals Act No. 33 of 1992

National Environmental Act No. 47 of 1980

National Heritage and Wilderness Act, No. 03 of 1988

Soil Conservation Act

Fisheries and Aquatic Resources Act