CRIMINAL LAW IN THE PROTECTION OF THE ENVIRONMENT
D.P. KUMARASINGHA
PRESIDENT’S COUNSEL
VICE PRESIDENT-ACPF SRI LANKA
On the 5th of June 1997, the world celebrated the 25th anniversary of the World Environment Day, on the global theme “For Life on Earth”. In the U.N.D.P. parlance this means the sound management of all the planet’s resources to sustain plant, animal and human life for our generation and beyond. It means management of the development process in such a way as to enable the resources to regenerate and sustain further development. As development progresses, there must be a healthy balance between development and the environment.
SRI LANKA is one of the South Asian nations aspiring to reach NIC status in the next decade. Industrialization brings with it a host of environment related problems. The use of more natural resources would, if not controlled, lead to their depletion and other related consequences which would hamper sustainable development.
The Government has identified the following problem areas as needing prompt attention ?
A team from the International union for Conservation of Nature recently conducted a comprehensive survey of the forests of Sri Lanka ? the first ever such survey. Around 70 000 species of plants and animals were recorded. 281 forests were evaluated on their importance to soil and water conservation.
Deforestation due to illicit logging, clearing for cultivation and to make way for the expansion of human settlements have affected the weather patterns of the country. Long periods of drought have resulted in the destruction of food crops and caused power crises.
Denudation of forests in turn lead to soil erosion. Sloping land, river catchment areas and natural forests are being cleared and cultivated with food crops. This leads to soil erosion causing landslides. Sri Lanka experienced a fair number of large scale landslides in the recent past. These landslides caused loss of human life in addition to large scale economic losses. A UNDP funded project has now completed a study of landslide prone areas in the upcountry and produced landslide hazard maps. These maps would be of great help to development planners.
Sri Lanka’s coastal belt is another matter for grave concern. Indiscriminate coral and sand mining, has resulted in the erosion of the coast line with the sea engulfing houses, plantations and roads.
Unauthorized methods of fishing have resulted in the depletion of fish stocks around the island. Sri Lankan government has undertaken coast conservation projects and also has passed legislation outlawing unauthorized methods of fishing. However, no appreciable progress has been made in arresting the deteriorating situation.
Pollution from vehicle emissions and industry is another problem faced by Sri Lanka. Virtually no action is taken against vehicle emissions although there are laws pertaining to this subject. Despite stringent legal provisions, factories keep on discharging chemical effluents into streams and rivers. This not only destroy aquatic life but also pollute drinking water.
ROLE OF CRIMINAL LAW
There are more than 50 Enactments relating to the conservation of the environment. Contravention of these laws carry penalties in the form of fines, imprisonment and confiscation of property used in the commission of offences.
The National Environmental Act No: 47 of 1980 as amended by Act No: 56 of 1988 (NEA), has created a Central Environmental Authority (CEA) with responsibility to oversee the implementation of the provisions of the Act. Specific provision is made in respect of the following subjects ?
Land
Section 15 NEA mandates the CEA to formulate and recommend to the Minister a land use scheme with the object of providing a rational, orderly and efficient system of land use and to encourage the prudent use and conservation of land resources in order to prevent an imbalance between the needs of the nation and such resources.
Section 17 requires the CEA to recommend to the Minister the basic policy on the management and conservation of the country’s natural resources and the general measures through which such policy may be carried out effectively.
Section 18 requires the CEA to recommend to the Minister a system of rational exploitation of fisheries and aquatic resources within the territorial waters of Sri Lanka or within its exclusive economic zone or within its inland waters.
Section 20 requires the CEA to recommend to the Minister a system of rational exploitation and conservation of Wildlife Resources.
Section 21 requires the CEA to recommend to the Minister a system of rational exploitation of Forest Resources and promoting a continuing effort on reforestation.
Section 22 requires the CEA to recommend soil conservation programmes including the identification and protection of critical watershed areas, encouragement of scientific farming techniques and physical and biological means of soil conservation.
In respect of the each of the above subjects the CEA is vested with the authority to co-ordinate, supervise and centrally control the activities of diverse institutions dealing with the environment.
Contravention of the provisions of the Enactments dealing with the subjects mentioned above result in prosecutions in the Magistrate’s Courts, which are empowered to impose fines and terms of imprisonment.
In addition to the above penal provisions the Criminal Procedure Code of Sri Lanka makes provision for a Magistrate to make an order for removal or abatement of a public nuisance. This provision is widely resorted to in order to deal with errand industrialists who pollute the air and water resources.
ENFORCEMENT
Lackadaisical enforcement has rendered these laws largely ineffective.
Several projects have been tried out in the private sector with a view to reducing the rate of pollution from industry. The UNDP sponsored Industrial pollution Reduction Programme trains production professionals to examine processes of production and find ways of reducing waste. Often this leads to an increase in the profits by turning waste into produce. Masons Mixtures, a paint manufacturing company, one of the first volunteer companies to take part in the project, has reduced its dust and fume emissions by 70%, decreased its waste of xylene by 60% and begun using 75% more of the residual chemicals in its supply containers. At the same time it has increased its profits appreciably. They have done so simply by examining every stage of the manufacturing process where waste matter is produced and reducing this to the minimum.
This project is using the same technique to streamline the production processes of many other industries.
A recent publication issued by the United Nations Environmental Programme (UNEP) points out the following constraints on the implementation of environmental legislation.
In a situation where social needs are many and the material and the human resources are limited, the need for environmental improvements must be perceived by the leadership as of highest priority before there can be a will to meet the need. The tendency is economic development at the cost of the environment.
In most of the developing countries, public involvement in the affairs of the state is minimal. The people’s understanding of the importance of participation in Governmental affairs, particularly at village level, leaves much to be desired. In modern times the complexity of technology such as in the cases of nuclear power-plants and chemical manufacturing complexes defy public understanding of technical aspects and related policy and legal issues involved. This leads to the alienation of the public from those activities. In such a situation there is a lack of demonstrated public concern against environmental hazards and the political leadership will have no indication of the pulse of the public. Efforts must be made to make the people understand the importance of observing environmental regulations by increasing awareness of the dangers of pollution and the need for enforcement of the legal provisions to prevent such pollution. The public also should be made to participate in the process of decision making by Governments on matters affecting the environment such as siting power stations and industrial plants and the development of industrial zones and complexes.
Enforcement of environmental standards require highly sophisticated equipment which are expensive. It also requires trained scientists and law enforcers. The developing nations do not have the resources to adequately meet these needs.
Many developing nations fail to integrate environmental dimensions with economic development. As a result, programming and funding become difficult at later stages.
It must be borne in mind that incentives are a driving force behind economic development. So also the penal law must be supplemented with economic incentives for maintaining a clean environment.
Dr. Saman Kelegama in a contribution to the Ceylon Daily News of 17.4.97 has succinctly set out the relationship between economic policy and environment. He states ? “While environmental law and environmental planning ( e.g. environmental impact assessment ) are worthwhile parts of an environmental strategy, they must be combined by greater awareness of the economic cause of environmental damage. Environmental damage, after all, is the result of a rational response by individuals to existing economic incentives. By changing the economic incentives to change the behaviour of individuals from making a basic rational response to a concerned rational response, environmental degradation can be reduced. The changing economic incentives should be such that it reduces environmental degradation”.
He goes on to say some economic incentives for this purpose, namely ?
Dr. Kelegama suggests that mechanisms could be evolved by which a tax imposed could be returned to the polluters on condition that it is used for cleaning up damage. This is in accord with the internationally agreed “Polluter Pays Principal”. This must not be taken to mean that a polluter can pollute and pay. Environmental regulations and the law must be strictly enforced.
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