LAW MANTRA

THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 23216417)

Singalanka Standard Chemicals Ltd vs ThalangamaAppuhamilageSirisena and Others

Facts in Brief: Facts reveal that the Petitioners factory commenced operations in 1984 after obtaining the approval of the governmental authorities including the Central Environmental Authority, with an initial investment of nearly 50 million rupees and had been engaged in the manufacture of AluminiumSulphate popularly known as Alum for more than 11 years. On a complaint made to the effect that the emissions/discharge from the said factory, constituted a public nuisance the learned Magistrate ofHomagama, acting under the provisions of Chapter IX of the Code of Criminal Procedure dealing with public nuisance, ordered the closure of the factory. Analysis: The issue in the preliminary stage was whether the jurisdiction of the Magistrate can make orders under Chapter IX of the Code of Criminal Procedure Act has been ousted by the provisions of the National Environment Act . In this aspect it is important to note that the judge mentioned it is often argued that Section 29 of National Environmental Act has the effect of making the provisions of the Act prevails over the provisions of Chapter IX of the Code of Criminal Procedure Act. It is important to note that in support of this analysis the argument that was put forward is where a statute creates a special remedy for the resolution of certain class of disputes, the statute takes away the jurisdiction of the ordinary courts in respects of such matters. The judge has made a comprehensive case analysis regarding this aspect and they are as follows. HendrickAppuhami v. John Appuhami Mansoor and Another v. O.I.C. Avissawella Police and another Farook v. Gunawardena Guneratne v. Abesinghe

Keangnam Enterprises v. E.A. Abeysinghe and Eleven Others

Out of the observations made by the court, one important aspect to be noted is that by implication what was held in that case was that if there had been a certificate issued by the Central Environmental Authority the jurisdiction of the Magistrate Courts would have been ousted. The reason behind such a statement is because the Petitioner Company cannot rely upon the provisions of the Act due to the reason it had not obtained license from Central Environmental Authority. Therefore in my opinion this is a very clear principle in law which explains that one needs to have a legal right to rely on a particular law. The judgment has also referred to a recent case named R.P. Weerasekara v. Keangnam Enterprises Ltd where the Magistrate of Balangoda issued a conditional order overruling the objection taken by the company which had obtained an Environmental Protection License for its proposed activities. Importance of using relevant authorities in a judgment is highly significance at a time because this particular Keangnam case is very supportive to establish a strong stance in this case in question, stating the view of the Magistrate was that such a license did not fetter his power to determine whether a public nuisance is being committed. The company moved in revision in the Provincial High Court which set aside the order of the Magistrate. The case then went before the Court of Appeal, which extensively reviewed the authorities in Sri Lanka and other jurisdictions and held that the Magistrate had jurisdiction to determine whether a public nuisance has been committed. The fact that the activity in question had been authorized by some other law was a relevant consideration, but the question whether the statute in question authorized the committing of a public nuisance was ultimately a matter for the Magistrate to decide. The court also went to the extent of highlighting the importance of why powers of the Magistrate Court should not be taken away by referring to an Indian Court judgment, Nagarjuna Paper Mills Ltd v. Sub Divisional Magistrate and Divisional Officer, Sangareddy. The judgment also states that the National Environmental Act and the Chapter IX of the Code of Criminal Procedure are two statutes that operate in different fields, and even though has a clash between the two they could coexist. Therefore the judge has analyzed it stating that the basis of Section 98 of the Criminal Procedure Code is that, there needs to be an imminent danger of an act of nuisance being committed and that if the Magistrate does not take prompt action irreparable damage will ensure to the public. In my opinion the pure intention of the Criminal Procedure Code is to secure the public from nuisance activities to avoid any imminent danger that could arise, therefore the Magistrate has been identified as the person

who should take the necessary action on such activities to prevail justice. Another important aspect which arose from this judgment is that it was noted when there is a court case pending with regard to an alleged commission of an act of public nuisance under the Criminal Procedure Code then the environmental authority should not grant a license till that matter is finally adjudicated by courts.The judgment has also reflected on the fact of striking a balance between development and environment impact as follows: The purpose of issuing the license under the Environmental Act is to balance environment concerns with development needs. Sustainable development is an attempt to reconcile two contradictory human rights namely the right to development and the right to environment conservation. Simply stated it would imply a benign balance between environment and development or in other words eco-development. The society has to develop but not at the expense of the environment and in similar vein, the environment has to be protected but not at the cost of the development of the society. Development is not possible without some adverse effects on the ecology. There shall have to be both development and proper environment and as such a balance has to be found out and administrative actions ought to proceed in accordance therewith. This judgment has addressed on the importance of striking a balance

betweendevelopmentsandpreserving the environment significantly because with the increasing globalization activities and commercialization this has become an issue worldwide which needs to be addressed firmly. The decision has gone beyond the above explanation and categorized few important environmental principles,explaining each aspect briefly which has made the judgment more attractive by emphasizing the importance of those principles, making it an eye opener to reflect on those principles thoroughly when deciding an environmental issue. I have briefly commented on those principles as how it was discussed in the case extracting most important statements are as follow:

Environmental Principles referred in the Case: Public Nuisance viewed in the light of Fundamental Rights Polluter Pays Principle Principle of Precaution

Universal Obligation The Principle of Trusteeship and the Principle of Intergenerational Rights

Public Nuisance viewed in the light of Fundamental Rights The decision states that the Sri Lankan Constitution Article 27(14) has imposed a public duty by way of directive principles upon the state. It is therefore reasonable to think that the right to move the appropriate court to direct the state to perform their duty cannot be denied. At present this is not only a directive principle but has been recognized and enlarged by judicial ingenuity into a fundamental right. In another important case named Fernando and Others v. Officer In Charge of Seeduwa Police Station Her Ladyship ShiraniBandaranayake, J held that according to our Constitution Article 13 by implication embodies the right to life. Her Ladyship has stated that Article 13(4) should be interpreted broadly to mean that the said article recognizes the right to life impliedly and that by reading Article 13(4) with Article 126 (2) of the Constitution which would include the lawful heirs and/or dependents to be able to bring in an action in a situation where death has occurred as a result of violation of Article 11. In year 2003 Fernando, J. held in a case that Article 11 and 13 (4) by necessary implication recognize the right to life. Thejudgment has next referred to a case named Subash Kumar v. State of Bihar decided in Indiawhich has stated right to life is a fundamental right under Article 21 of the Constitution which includes the right of enjoyment of pollution free water and air for full enjoyment of life. After giving reference to these cases and emphasizing the importance of right to life the Judge has stated as follows; The right to life would take within its sweep the right to a decent environment. In the spirit of this approach the judges must apply the law to the facts of an individual case mindful all ways that they are called upon to ensure the fundamental rights of the citizen. Therefore with all these authorities what is significant is that, states are expanding the fundamental right clauses by including rights such as right to life so forth. This is definitely a necessary impact on having an eye opener how Public Nuisance could be viewed in the light of Fundamental Rights due to the broad interpretations coming up from Fundamental Rights clauses. Polluter Pays Principle This particular principle has been used in the judgment to show the importance of how an enterprise could be absolutely liable and not get subject to any exceptions by referring to one

of the famous case in India, Olium Gas Leak Case which stated, Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of inherently dangerous activity. The enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis--vis the tortious liability or strict liability under the rules of Rayland v. Fletcher . In my opinion the judge has highlighted on the fact, if the environment is getting polluted, it will be the polluter who is responsible for it and needs to bear the cost of it. This principle in other hand shows the responsibility a polluter has towards the society back, because the environment is the core base of every human life on the planet. Principle of Precaution This Principle involves the anticipation of environmental harm and taking measures to avoid or choose the least environmentally harmful activity. The said principle in its turn has also led to the special principle of burden of proof in the environmental cases. Herein, the burden of proof as to the absence of injurious effect of the actions proposed was placed on those who wanted to change or have changed the status quo. This amounted to a reversal of the burden of proof as it would be unfair to order those who opposed the change to shoulder the burden (Vide. 1996, 5SCC 647 -A.P. Pollution Control Board v. Professor M.V. Nayudu 1999, 2 SCC 718). In the case Bulankulama v. Secretary Ministry of Industrial Development it was mentioned that it is the license holder who needs to lead evidence and satisfy the court that he has not violated conditions in the license. If the conditions are unreasonable and against concept of sustainable development then the remedy would lie elsewhere by way of a fundamental rights application in the Supreme Court of by way of writ in the Court of Appeal. The interesting fact is that in this case the judge has gone further and stated that even if it is found that the respondent has not violated the conditions laid down in the license still, if the act complained it is hazardous, and it appears to Court that the relevant licensing authority had not applied its mind to the safety of the people, the Magistrate has the power to make an order to prevent a nuisance if he is satisfied thatthe nuisance should be abated . (Vide. TehiriBandhVirodhiSangashSamithi v. State of Uthar Pradesh )

Universal Obligations (ergaomnes) This concept has been very precisely but emphasizing on the importance of the Universal Obligation has been expressly stated in this case. The judgment states that there are environmental rights which is distinct from ordinary civil rights and that they could be called as universal rights. Under universal rights, rights such as pollution free water and intergenerational right to natural resources could be given as examples. The decision also state why it becomes a universal obligation is because environmental hazards affect not only the present generation but also generations to come and the right to a healthy environment is a right even the unborn have. The reason behind identifying it as a universal obligation is because

environment hazards will not affect only particular individual but also it can impact on the entire universe. Also it carries the feature that it is not possible to compensate and the judgment highlight it by stating as follows; the harm or the evil that may cause would be irreversible and lasting, the effects of which cannot be compensated. The Principle of Trusteeship and the Principle of Intergenerational Rights The principle of trusteeship and the principle of intergenerational rights and the principle of development and environment conservation must go hand in hand, land is to be respected as having a vitality of its own and being integrally linked to the benefit of the community when it is used by human, every opportunity should be afforded to replenish its resources. There is a duty lying upon all the members of the community to preserve the integrity and purity of the environment, this is a universal obligation which cannot be restricted by agreements between private parties or between the state and private parties or between state and state. Conclusion: After observing all the issues, concepts, principles, rules and relevant authorities, judge is in the view that the jurisdiction to try public nuisance matters should go unhampered and undeterred or untrammeled by the ordinary rules which apply in ordinary matters to restrict the jurisdiction of the Magistrates Court. Therefore in this case decision concludes with the observation where a statute creates a special remedy to the resolution of a certain class of disputes the statute takes away the jurisdiction of the ordinary courts in respect of such matters would become irrelevant in the case of an act of public nuisance causing environmental hazards and thus the jurisdiction of the Magistrates Court to proceed under Chapter IX of the Criminal Procedure Code in the case of an act of public nuisance is not ousted by the provisions of the National Environmental Act. In my view this judgment has observed the

issue in question successfully while addressing the other important aspects too very attractively which needs to be looked at when it is a case upon an environmental issue. By:- Jayani De Silva, LL.B. (Hons) (Colombo)