• We are doing a constitutional duty by trying to protect the environment
• Several issues come up at the same time and the few people who are looking at these issues have a hard time coping with them
• If we take time on ponderous activities, vital time would be lost

“Every citizen has a constitutional duty and obligation to protect the environment,” said Dr. Jagath Gunawardana, lawyer, environmentalist and educator during a lecture on the upcoming legal challenges in protecting the environment held by the Wildlife and Nature Protection Society. Gunawardana with his years of experience in the practice of environmental law and mitigation covered multiple facets through which we can protect the environment on a daily basis.

Our legal duty for the environment

The constitution mentions that the state has a duty and obligation to protect, conserve and develop the environment for the benefit of the community. The benefit of the community is of prime importance. The state cannot act against the wishes of the community but has to protect the environment for the sake of the community. Community doesn’t only mean the people who are living together but also the unborn generations. Article 27 gives an obligation to the state and also empowers the state to protect the environment for the people of this country. The constitution also states that every citizen has a right and duty to protect the environment. According to Gunawardana, this is of high importance as he considers this a sacrosanct provision since it’s not only the environmentalists but every citizen in this country has an equal right to speak for the environment. “We are doing a constitutional duty by trying to protect the environment. If someone is to say that environmentalists are making too much noise, we can tell them that they have the same duty to protect the environment as we do,” he stated.

The purpose of environmental laws

When we go through the laws and policies you can see what is meant by environmental laws in this country. First it’s the protection of life support systems. We all depend on the environment and the environment has life support systems and without this system every life will collapse and for that purpose this law plays a vital role. The next one is ensuring ecosystem services These services can be direct or indirect. Then, the protection of habitats and species, the marinating environmental quality, prevention of pollution and the management of resources, whether they are finite or infinite, it’s a prime duty to protect our resources for the future generations without misusing and abusing them.

"Public participation is the cornerstone of everything because if there is more public clamour, the laws will be made stronger"

Challenges and issues becoming more complex

Issues are becoming more complex and social issues, environmental issues, economic issues, natural resources issues, cultural issues are all interwoven together sometimes. Gunawardana explained that we need different people with different expertise to look at the same problem from different perspectives. “Several issues come up at the same time and the few people who are looking at these issues have a hard time coping with them,” Gunawardana said. He went on to explain that this overloads them both mentally and physically because the number of volunteers will not increase suddenly and the people who are geared to analyse these situations and look at the problems will not increase suddenly either. But the issues are increasing in their scale and magnitude. Another challenge is that we have to analyse issues in-depth. We can’t superficially look at an issue and come up with a statement. We have to identify the real issues and the underlying causes. The same issue should also have a multi-disciplinary approach. We can approach it from economic angles, environmental angles, national interest angles and social angles because if we neglect one aspect our adversaries will say that we are insensitive to the needs of the society. The final challenge is adopting novel, resilient and nimble methods of engagement. Traditional methods of intervention may not work anymore. We have to change ourselves quickly to meet the challenges of a situation, be faster than our adversaries and change our structures, methods, perspectives and intervention methods to meet these challenges head on. This needs adaptability, resilience and flexibility on our part.

Protection of biotic and abiotic resources

The main types of environmental protections are the protection of biotic and abiotic resources. Biotic resources are living organisms which are intended to protect the habitats of all animals and plants. This includes the protection of habitats, species and genetic diversity and every aspect that comes under biological diversity. So the environmental laws that are intended to protect biodiversity should be able to preserve all these three aspects but there may be certain laws that can protect only one aspect like the forest conservation ordinance, which is mainly geared towards protecting the habitats of animals and plants. The protection of abiotic resources include maintaining resources, maintaining the quality of the environment, setting standards so that the material or pollutants are managed through certain criteria. There are air quality standards and emission standards that help maintain the quality of air and water quality standards for depositing waste into water bodies which is about controlling discharges. Standards are maintained in two ways; by having ambient standards and by controlling the emissions and discharge of material. There are laws that have both the protection of biotic and physical environment written into the same enactment like the National Environment Act which basically qfocuses on the physical quality of the environment. There are ten environmental protection areas in our country so far.

"This is the time of incubation and preparation"

A strong legal regime for environmental protection

What makes the laws work is what’s most important when it comes to a lawyer or a layman who is interested in looking at the environment through legal means. For this, strong laws and regulations are needed. Regulations do not happen if there are no laws. Efficient law enforcement mechanisms are also vital because without the mechanism the law becomes only a bundle of papers. Public participation is important. “My personal belief and experience is that public participation is the cornerstone of everything because if there is more public clamour, the laws will be made stronger and the effectiveness of enforcement mechanisms can be strengthened in several manners.” Gunawardana stressed. By helping the law enforcement agencies, the members and the public play a vital role. He mentioned that by lobbying other representatives we can compel the authorities to make these agencies stronger and also minimise corruption and interferences against these organisations. When it comes to the law, the public eye on the situation is a vital aspect. Many people think that good laws are more than enough and some think that the institutions are the cornerstones. But it’s like a tripod and all these have to be balanced if we are to have a strong legal regime to protect the environment. We need to improve public participation and thereby ensure the maintenance of law and order as a priority. 

What we need is a multidisciplinary approach

Most necessary laws are in place when it comes to the current situation of the country but there are areas where new laws like the bio-safety act are necessary. There’s also the necessity to amend some of the existing laws such as the Marine Pollution Prevention Act. Gunawardana believes that it should be the Marine Environmental Protection Act because the mandate has to be enhanced and broadened to protect the sea around Sri Lanka. Most regulations are also in place but presently very much neglected. So rather than having one law for one issue, we should have several laws that deal with the same aspect. This multidisciplinary approach gives us a choice. When many laws have the same aspect being covered, lawyers can make use of the best law at certain points of a situation.
Unfortunately at present, the institutions are weak and the enforcement mechanisms are fragile. Many don’t have field staff capable of handling certain situations. There is also inadequate training to deal with the present situation and inadequate facilities, from vehicles to cameras, gear and surveillance equipment. Another factor is vertical and lateral interferences. Vertical interference is when the higher up in the hierarchy tries to interfere with the duties and obligations while lateral interferences are when one agency, government authority or department tries to meddle with the activities of another. Most conservation oriented departments and authorities face lateral interference as some government agencies try to stifle their activities. We have to be mindful that lateral interferences have increased in the past few years and will be increased too. Another issue is low morale. People develop low morale if they aren’t given due appreciation, encouragement and protection. Lastly, all these are based on corruption and it is relatively low in these organisations compared to the other issues. There are other obstacles that are more insidious and hidden to the untrained eye. Interferences aren’t obvious to others unless you are interested in it. But corruption is obvious to everyone.

‘‘By helping the law enforcement agencies, the members and the public play a vital role’’ - Dr. Jagath Gunawardana

Name and shame to those who go against these laws

Low public participation is a major reason for the prevailing situation. The more public participation there is, the less interference and less corruption will be there. We can always “name and shame” the corrupt people, those who are interfering with these activities and those who aren’t with the law. This is one policy that we adopted. Poor cooperation between government agencies and government and non-government organisations is another reason. When we look at government offices, authorities, departments and agencies, we always find that they don’t have the necessary resources. Sometimes we have to help them. That cooperation and support is also vital to better this situation. There is also a lack of proper knowledge among the public about the role of the departments and the problems they face and most of the time the government departments and authorities are accused of inaction whereas most of the time they are prevented from taking actions due to certain political circumstances and interferences. Sometimes they are too engrossed with their activities at present that they can’t take up new cases quickly. Quick action is key to every conservation effort. “If we take time on ponderous activities, vital time would be lost. If there is a wildlife crime or an environmental offence happening, the department or the authority should intervene quickly and take remedial actions. Delay causes futility in the actions.” Gunawardana explained.

Disregard of experts and reliance on pseudo experts

Some of the worst aspects of the current situation are disregard to existing laws and regulations. Another problem is amending laws and regulations to cater to vested interests. Amendments have to be in accordance with the existing law and the constitution. Amending laws to accommodate international conventions, treaties and protocols is not always bad but we should be mindful of the type of law we are going to enact or amend. Agreeing to the signing of treaties and protocols without proper evaluation is another. Disregarding expert opinions and reliance on pseudo experts who are not experts of the field is also extremely disturbing. Jagath explained that we can listen to everyone’s claims and opinions but relying on the advice of people who are not experts just because of their close proximity with the authorities can be very dangerous. Along with this, disregard of public opinions is also an issue as most of the time the public is not given their due place, even though everyone has a duty and obligation to protect the environment.

The necessity for correct and committed people

During his lecture Jagath stated that they don’t want to leave things in a depressed state. “This is the time of incubation and preparation and our foremost requirement is to call legal practitioners, environmental law practitioners and all the citizens of the country to do their part in trying to enhance the rule of law,” he mentioned. If the rule of law is enhanced in this country, then the enforcement of environmental laws become easier and more productive. If the rule of law breaks down as it is in the present, the enforcement of the environmental laws will also suffer. If there is a government agency or an official who is breaking the law, we can tackle them for the violation of their legal obligations. Social media is one good tool in the hands of responsible citizens. Putting pressure on government agencies and different departments and on private agencies and companies to ensure they are respecting and observing the existing laws of this country is essential. Putting pressure on violators also helps maintain the rule of law. Creating legal teams within organisations is also something that should be looked at seriously. These legal teams may be affiliated to a society or could be an independent legal team like the Young Zoologist Association. Independent legal teams are a new way of touching these problems so that they don’t have to come to an organisation, gain membership or attend regular meetings. Whenever there is an issue, they can analyse it, come up with a solution and impose the solution. There should be correct and committed people in such teams. Awareness creation of the prevailing law, how the law is not being observed and how the law is violated is also something the teams can do. They can come up with public statements and social media posts for that cause. Litigation and litigation support is the obvious last choice for a legal team. If a government agency is having a Court action against the offender, we can intervene on behalf of the government agency or as aggrieved parties and try to steer the case in the proper direction. Jagath’s personal view is that a legal team composed of junior lawyers with several areas of interests is much better than one senior person who has one particular interest as an expert. Sri Lanka needs more legal analysis to take action. One lawyer can take action and another who is more familiar with the scientific aspects and the legal aspects can analyse the situation and come up with the core issues, make the analysis and help them take legal action. There are many people who are willing to be parties to legal actions who can be harnessed to enhance their capacities. Jagath also stressed that we have to cooperate and coordinate between groups for a particular cause. In an interconnected world, getting cooperation is easy.

Doing something is better than nothing

Everyone can make a contribution as individuals, even if you don’t belong to a society. Anyone and everyone regardless of their wealth, position, education, social connections can make a contribution. For that, one has to know where their interest lies. Whether it’s combatting  pollution, welfare of animals, mangroves, coastal environments, wetlands, etc. If you’re not interested in a particular area, then your contribution will not come from your hearts. In this interconnected era, you can always enhance your voice and make it count by getting like-minded, concerned and public spirited individuals to support your cause. You can make a petition individually, have several people writing simultaneously to the government agencies on the same issue or sign the same petitions. Anything is better than doing nothing. Discussing it only will not help and taking any action is the ultimate goal. Make a complaint to the authorities or police if necessary, protest if necessary, help other people to take correctional activities if possible. “This is the most appropriate time to speak of the law because this is an era of contradictions” Jagath emphasised. The law is being disregarded and violated very blatantly for the past few months but we have also seen a fresh outlook amongst the legal professionals. We are in a contradictory position where the tide is turning against the lawbreakers and more lawyers are coming forward to help different causes. So why not the environmental cause? Jagath stated that he’s refreshed to see more young lawyers and legal professionals and even law students coming forward to assert their rights and obligations to society. He mentioned that we should look forward to that corporation, support and strengthen them. We should also get empowered by their passion and activism. “Encourage young people to join these causes so that they would look at it through fresh eyes and adapt fresh methodologies to combat environmental crimes to secure their own future,” Gunawardana concluded.