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Environmental Constitutionalism in South Asia: Analyzing the Experiences of Nepal and Sri Lanka

Published online by Cambridge University Press:  06 May 2015

Joshua C. Gellers
Joshua C. Gellers*
Affiliation:
Department of Political Science and Public Administration, University of North Florida, Jacksonville, FL (United States). Email: josh.gellers@unf.edu.
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Abstract

Why do some countries adopt constitutional environmental rights while others do not? This article uses qualitative content analysis of interviews conducted in Kathmandu (Nepal) and Colombo (Sri Lanka) to analyze the cases of Nepal, which adopted a constitutional environmental right in the 2007 Interim Constitution, and Sri Lanka, which has not enacted such a right in any of its governing charters. It finds that the presence of a constitutional environmental right in Nepal and the absence of such a right in Sri Lanka can be best explained directly with reference to domestic political conditions and structures, and indirectly in terms of the international normative environment in which the constitution was written. The article outlines a research agenda which focuses on evaluating the impacts of constitutional environmental rights. This research provides important insights into the process of constitutional design in developing states and the translation of international norms in domestic contexts.

Keywords

Environmental rightsConstitutional designInternational normsSustainable development, Nepal, Sri Lanka
Type
Articles
Information
Transnational Environmental Law , Volume 4 , Issue 2 , October 2015 , pp. 395 - 423
Copyright
© Cambridge University Press 2015 

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Footnotes

The author would like to thank the Southasia Institute of Advanced Studies in Nepal, the Open University of Sri Lanka, and the American Institute of Sri Lankan Studies for providing assistance during field work in Nepal and Sri Lanka. Thanks also to Louis Kotzé, Jim May, Erin Daly, and three TEL anonymous reviewers for their helpful comments on earlier versions of this article; Wayne Sandholtz, Richard Matthew, Diana Kapiszewski, Joe DiMento, and David Feldman for their guidance and intellectual support; and the Center for Global Peace and Conflict Studies at the University of California, Irvine (US) for funding critical portions of this research.

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19 In order to maximize the universe of potential cases for this portion of the study, I defined constitutional events as occurrences that involved the passage of a new constitution or the official approval of a draft, interim or proposed constitution during a given year.

20 Nepal adopted a constitutional environmental right in its 2007 Interim Constitution (n. 41 below), whereas Sri Lanka did not enact such a right in its 1978 Constitution (n. 76 below) or its 2000 Draft Constitution (n. 76 below).

21 While results of the statistical analysis indicated that regional influence was not a significant factor in the adoption of a constitutional right, the fact that both Nepal and Sri Lanka are located in the same region (South Asia) introduced a convenient de facto control for geography.

22 Interviewees in Nepal included (in alphabetical order) Somat Ghimire, Dilraj Khanal, Ghanashyam Pandey, Naya Sharma Paudel, Ananda Pokharel, Bharat Pokharel, Pitamber Sharma, and Prakash Mani Sharma.

23 Interviewees in Sri Lanka included (in alphabetical order): Ravi Algama, Jayantha Dhanapala, Mario Gomez, Sumith Pilapitiya, Ruana Rajepakse, Jayampathy Wickramaratne, and Manuja Wimalasena.

24 Interviews were transcribed using f4, a transcription software tool.

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26 Elo, S. & Kyngäs, H., ‘The Qualitative Content Analysis Process’ (2008) 62(1) Journal of Advanced Nursing, pp. 107–115CrossRefGoogle Scholar. I chose to employ qualitative content analysis as opposed to quantitative content analysis because of the relatively low number of interviews conducted. Therefore, throughout the analysis no attempt was made to quantify the frequency with which certain codes appeared in the interviews, as such an effort would have run afoul of the threshold needed to make viable statistical inferences.

27 This meant that codes and categories would be drawn from the qualitative data itself as opposed to using preconceived codes and categories discussed in relevant literature: see Kondracki, N.L., Wellman, N.S. & Amundson, D.R., ‘Content Analysis: Review of Methods and Their Applications in Nutrition Education’ (2002) 34(4) Journal of Nutrition Education and behavior, pp. 224–230CrossRefGoogle ScholarPubMed.

28 ‘Open coding’ refers to a process by which quotes relating to the phenomenon in question were selected and notes and headings were typed in the margins of the text in order to ‘describe all aspects of the content’: Elo & Kyngäs, n. 26 above, at p. 109. Interviews were analyzed using ATLAS.ti 7, a qualitative analysis software tool.

29 The ten categories were ‘case’, ‘country’, ‘event’, ‘group’, ‘institution’, ‘international law’, ‘key actor’, ‘political debate’, ‘process’ and ‘rationale’.

30 The two categories were ‘law’ and ‘rationale’.

31 Hachhethu, K., Kumar, S. & Subedi, J., Nepal in Transition: A Study on the State of Democracy (International Institute for Democracy and Electoral Assistance, 2008)Google Scholar.

32 ‘Nepal Overview’, World Bank, available at: http://www.worldbank.org/en/country/nepal/overview.

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35 Constitution Making in Nepal (United Nations Development Programme, 2007).

36 A. Shrestha, ‘Necessity of Constitution Assembly in Nepal’ (2007) Kathmandu School of Law, available at: http://www.ksl.edu.np/ca/students_article/aarati_shrestha_a_necessity_ca.pdf.

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40 Hachhethu, Kumar & Subedi, n. 31 above, at p. 2.

41 Interim Constitution of Nepal, 2063 (2007).

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45 Although international aid donors possessed ‘considerable leverage over the policies of Nepal’ during the period leading up to the 1990 People’s Movement, the donor community ultimately had limited influence during the drafting of the 1990 Constitution: see Parajulee, R.P., The Democratic Transition in Nepal (Rowman & Littlefield, 2000), p. 224Google Scholar.

46 Godavari Marble, n. 44 above.

47 M.C. Mehta has been credited with helping to establish the concept of environmental rights in India through his work as a public interest lawyer: see ‘M.C. Mehta: Environmental Jurisprudence’, M.C. Mehta Environmental Foundation, 2009, available at: http://mcmef.org/environment_jurisprudence.html. In perhaps his most famous case, Mehta successfully argued that Art. 21 of the Indian Constitution, the right to life, should be applied in order to award compensatory damages to individuals harmed by an oleum gas leak: see M.C. Mehta v. Union of India and Others (Oleum Gas Case 3), 1987 AIR 1086, 1987 SCR (1) 819, 1987 SCC (1) 395, JT 1987 (1) 1, 1986 SCALE (2) 1188.

48 Godavari Marble, n. 44 above.

49 P.M. Sharma, personal interview.

50 A. Pokharel, personal interview.

51 N. 41 above.

52 D. Khanal, personal interview; P. Sharma, personal interview.

53 Justice Aryal would later become a powerful advocate of environmental rights during a subsequent constitution-drafting process. During a two-day interaction programme co-organized by the International Union for Conservation of Nature and Natural Resources (IUCN) and Janahit Sanrakshan Manch of Pro Public, a public interest law firm in Nepal, Justice Aryal delivered a presentation to members of the Constituent Assembly entitled ‘Clean and Healthy Environmental Rights: Basis for Basic Environmental Rights in New Constitution’: see Thapa, L.B., Mainstreaming of Environmental Rights in New Constitution: Right to Clean and Healthy Environment (IUCN, 2009)Google Scholar, p. 15, available at: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169.

54 Geneva (Switzerland), 27 June 1989, in force 5 Sept 1991, available at: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169.

55 P. Sharma, n. 52 above.

56 E.g., a group of international NGOs in Nepal worked together to draft a letter to the Hon. Laxman Prasad Aryal, head of the ICDC, in which the parties recommended that four kinds of provision related to environmental rights be included in the Interim Constitution: see Care Nepal, the International Centre for Integrated Mountain Development (ICIMOD), the IUCN, the Mountain Institute, Winrock International, and the World Wildlife Fund, ‘Suggestions Given to the Interim Constitution Drafting Committee by INGOs Working in Environment and Biodiversity Conservation, and Sustainable Development’, 13 July 2006, available at: http://www.constitutionnet.org/files/NGO%20recommendations%20to%20the%20IC%20drafting%20Committee.pdf.

57 Khanal, n. 52 above.

58 B. Pokharel, personal interview.

59 A. Pokharel, n. 50 above.

60 Khanal, n. 52 above; G. Pandey, personal interview.

61 B. Pokharel, n. 58 above.

62 Ibid.

63 Khanal, n. 52 above; B. Pokharel, n. 58 above.

64 It was also suggested that the popular awareness of environmental issues was partly as a result of the efforts of civil society organizations: see A. Pokharel, n. 50 above; Khanal, n. 52 above.

65 N.S. Paudel, personal interview.

66 B. Pokharel, n. 58 above.

67 P. Sharma, n. 52 above.

68 P.M. Sharma, n. 49 above.

69 Gilmour, D.A., ‘Not Seeing the Trees for the Forest: A Reappraisal of the Deforestation Crisis in Two Hill Districts of Nepal’ (1988) 8(4) Mountain Research and Development, pp. 343–350CrossRefGoogle Scholar.

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71 The World Bank, ‘Sri Lanka Overview’, available at: http://www.worldbank.org/en/country/srilanka/overview.

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75 Rajepakse, n. 73 above.

76 Constitution of the Democratic Socialist Republic of Sri Lanka (1978). A new Sri Lankan Draft Constitution was proposed in 2000 by then President Chandrika Kumaratunga following two drafts prepared in 1997, but it met a controversial defeat in Parliament: D. Bastians, ‘Communal Conundrum and Constitutional Calculations’, Colombo Telegraph, 30 May 2013, available at: http://www.colombotelegraph.com/index.php/communal-conundrum-and-constitutional-calculations.

77 S. Pilapitiya, personal interview.

78 Coomaraswamy, R., Sri Lanka, the Crisis of the Anglo-American Constitutional Traditions in a Developing Society (Vikas, 1984)Google Scholar, p. 40.

79 J. Wickramaratne, personal interview.

80 Wickramaratne, J., Fundamental Rights in Sri Lanka (Navrang, 1996), p. 27Google Scholar.

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82 New York, NY (US), 10 Dec. 1948, GA Res. 217A (III), UN Doc. A/810, 71, available at: http://www.un.org/en/documents.udhr; S. Sharvananda, Fundamental Rights in Sri Lanka: A Commentary (S. Sharvananda, 1993), pp. 13–4.

83 One analyst argues that the changes to the enumeration of fundamental rights were overwrought in that ‘the rights are spelled out too profusely and as a result the restrictions are spelled out equally profusely’: see N.M. Perera, Critical Analysis of the New Constitution of the Sri Lanka Government, Promulgated on 31-8-78 (V.S. Raja, 1979), p. 26. For a comprehensive analysis of the differences between the 1972 and 1978 Constitutions, see Warnapala, W.A. Wiswa, ‘Sri Lanka’s New Constitution’ (1980) 20(9) Asian Survey, pp. 914–930CrossRefGoogle Scholar.

84 Coomaraswamy, n. 78 above, at pp. 54–5.

85 Item 3 of the Select Committee’s questionnaire posed the following question: ‘What are the other fundamental rights which you would like to be guaranteed in the revised Constitution?’: see Jayasuriya, D.C., Mechanics of Constitutional Change: The Sri Lankan Style (Asian Pathfinder, 1982), p. 64Google Scholar. At the time of writing, I have been unable to obtain the 1978 Report of the Select Committee on the Revision of the Constitution, which describes the results of the questionnaire.

86 M. Gomez, personal interview. The lack of advocacy efforts relating to environmental rights may be partly as a result of a ‘rights consciousness’ which only began to emerge in the late 1970s: see Coomaraswamy, n. 78 above, at p. 48. This issue is addressed in greater depth in the section below on the political environment.

87 Atapattu, S., ‘Sustainable Development, Myth or Reality: A Survey of Sustainable Development under International Law and Sri Lankan Law’ (2001) 14 Georgetown International Environmental Law Review, pp. 265–300Google Scholar, at 293.

88 R. Algama, personal interview.

89 I did not include among the attempts listed the 2003 National Environmental Policy, which, under s. 4.3 (‘Outcomes to be Achieved’), emphasizes that the Policy focuses on striving to attain ‘[a] clean and healthy living environment maintained’ and ‘[a] healthy ambient atmospheric environment maintained’, since neither can be considered legally enforceable rights: see Sri Lanka Ministry of Environment & Natural Resources, Caring for the Environment 2003–2007: Path to Sustainable Development (Ministry of Environment and Natural Resources, 2003), pp. 42–3.

90 This draft featured the proposal of a legally enforceable right to ‘an environment adequate for health and well being’: see the National Environmental Act, 1995.

91 Atapattu, S., ‘A Commentary on the Draft Fundamental Rights Chapter’, in Sri Lanka: State of Human Rights 1998 (Law & Society Trust, 1998), pp. 173–191Google Scholar, at 182.

92 Fortnightly Review, Vol. VII, Issue No. 113, March 1997.

93 See ‘The Government’s Proposals for Constitutional Reform’, 1997, p. 287.

94 Ibid., at p. 295.

95 Ibid., at p. 296.

96 Dr Deepika Udagama, a former member of the subcommittee responsible for drafting the portion of the Bill of Rights concerned with socio-economic rights, reports having examined the South African constitution, constitutional jurisprudence of the Indian Supreme Court, and another African constitution in the course of composing the ‘Right to an Adequate Environment’ in s. 14T: D. Udagama, personal communication.

97 Sri Lanka, Ministry of Plantation Industries and Office of Special Envoy on Human Rights, 2011, ‘Sri Lanka National Action Plan for the Protection and Promotion of Human Rights 2011–2016’, p. 9, available at: http://www.hractionplan.gov.lk/posters/National_action_plan_for_the_protection_and_promotion_of_human_rights_2011_2016_English.pdf (emphasis added).

98 Gomez, n. 86 above.

99 Coomaraswamy, n. 78 above, at p. 74.

100 Wickremaratne, D., Sri Lanka Directory of Environmental NGOs (Sri Lanka Environmental Journalists Forum, 2004)Google Scholar.

101 J. Dhanapala, personal interview.

102 Indeed, Justice Kanagasabapathy Sripavan of the Supreme Court of Sri Lanka has acknowledged the importance of the judiciary in safeguarding the environment: ‘We, the judges of various jurisdictions, as custodians of the rule of law, have a vital role to play in protecting the environment. If we fail to protect the physical factors of the surroundings of human beings, including the land, soil, water, atmosphere, climate, sound, tastes and biological factors of animals and plants of every description, nature would hit us back and if nature really starts becoming furious, we would all be wiped off like ants. Let us hope that man becomes awakened very soon and transforms himself’: see K. Sripavan, ‘Judicial Innovations in Environmental Jurisprudence: Sri Lankan Experience,’ in Asian Judges Symposium on Environmental Decision Making, the Rule of Law, and Environmental Justice (presented at the Asian Judges Symposium on Environmental Decision Making, the Rule of Law, and Environmental Justice, Manila (the Philippines), 28–29 July 2010, p. 16, available at: http://www.scribd.com/doc/37087509/Kanagasabapathy-Sripavan-Judicial-Innovations-in-Environmental-Jurisprudence-Sri-Lankan-Experience.

103 Gomez, n. 86 above.

104 Algama, n. 88 above; R. Rajepakse, personal interview. At the same time, at least one observer notes how ‘[t]he Sri Lankan Supreme Court has not exhibited the enthusiasm for such judicial activism and has not adopted the new doctrines evolved by the Indian Court’: see Sharvananda, n. 82 above, at p. vi.

105 1(1) South Asian Environmental Reports 17 (S.C. App. No. 128/91, 1992).

106 Founded in 1981, The Environmental Foundation Ltd (EFL), the ‘first public-interest law firm in Sri Lanka’, was conceived based on the idea that ‘Sri Lanka possessed a well-developed framework of environmental laws that were ineffectively implemented and which could be used as a lever to promote environmental action’: see Guneratne, A., ‘The Cosmopolitanism of Environmental Activists in Sri Lanka’ (2008) 3(1) Nature and Culture, pp. 98–114CrossRefGoogle Scholar, at 108.

107 S.C., F.R. App. No. 38/2005, SCM 07.11.2007.

108 However, despite the order from the Supreme Court to enjoin the activities deemed to be a public nuisance, the ‘practice continued unchanged’: see Pinto-Jayawardena, K., Post-War Justice in Sri Lanka: Rule of Law, the Criminal Justice System, and Commissions of Inquiry (International Commission of Jurists, 2010), p. 42Google Scholar.

109 Bulankulama v. Ministry of Industrial Development, S.C., F.R. App. No. 884/99, 2000.

110 Stockholm (Sweden), 5–16 June 1972, UN Doc. A/Conf.48/14/Rev. 1(1973), available at: http://www.un-documents.net/unchedec.htm.

111 Adopted by the UN Conference on Environment and Development, Rio de Janeiro (Brazil), 3–14 June 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. I), 14 June 1992, available at: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm. Voigt, C., Sustainable Development as a Principle of International Law: Resolving Conflicts between Climate Measures and WTO Law (Brill, 2009), p. 181Google Scholar.

112 Atapattu, n. 87 above, at p. 296.

113 Watte Gedara Wijebanda v. Conservator General of Forest and Eight Others, S.C. App. No. 118/2004, SCM 04.05.2007.

114 Karunaratne, W., Some Significant Environmental Judgments in Sri Lanka (EFL, 2009), p. 36Google Scholar.

115 Dhanapala, n. 101 above.

116 Zubair, L., ‘Challenges for Environmental Impact Assessment in Sri Lanka’ (2001) 21(5) Environmental Impact Assessment Review, pp. 469–478Google Scholar, at 471.

117 K.H.J. Wijayadasa, Towards Sustainable Growth, the Sri Lanka Experience: The Evolution of Environmental Policies and Strategies in Sri Lanka, 1978–1993 (Central Environmental Authority, Ministry of Environment and Parliamentary Affairs, 1994), p. vi.

118 Despite the fact that legal commentators have consistently stated that Sri Lanka does not have a constitutional environmental right per se, EFL, the Sri Lankan public interest environmental law firm (n. 106 above), has published a handbook which declares unequivocally that ‘[a] healthy environment is both a right and a responsibility of all Sri Lankans’ in the first sentence of a section entitled, ‘Sri Lankans’ Constitutional Right to a Healthy Environment’: see Your Environmental Rights and Responsibilities: A Handbook for Sri Lanka (EFL, 2006), p. 11. The section mentions the relevant Directive Principles, codes, ordinances, and acts, but nowhere is an actual constitutional right cited.

119 Sri Lanka Constitution, n. 76 above, Art. 12(1): the right to equality provision states: ‘All persons are equal before the law and entitled to equal protection of the law’.

120 Rajepakse, n. 104 above.

121 Sri Lanka Constitution, n. 76 above, Art. 27(14).

122 Ibid., Art. 28(f).

123 Rajepakse, n. 104 above.

124 Ibid.

125 Schukoske, J.E., ‘Enforcing Environmental Laws in Sri Lanka through Fundamental Rights Litigation’ (1996) 8(2) International Legal Perspectives, pp. 155–172Google Scholar, at 158.

126 At the same time, as one scholar cautions, ‘the case law illustrates that the success or failure of public nuisance as a means of environmental protection and the degree of either is, to a large extent, dependent on judicial sensitivity, attitude and approach in the particular case’: see Puvimanasinghe, S.F., ‘An Analysis of the Environmental Dimension of Public Nuisance, with Particular Reference to the Role of the Judiciary in Sri Lanka and India’ (1997) 9 Sri Lanka Journal of International Law, pp. 143–171Google Scholar, at 169. Furthermore, public nuisance prosecutions might not result in the desired environmental outcomes because ‘there is no procedure for the abatement of nuisance nor direct relief to the victims of such a nuisance’: ibid., at p. 145.

127 Rajepakse, n. 104 above.

128 Schukoske, n. 125 above, at p. 168, n. 60.

129 Created in 1980 with the passage of the National Environmental Act (n. 131 below), the Central Environmental Authority, the main environmental agency in Sri Lanka, ‘enforces environmental laws’. Schukoske, n. 125 above, at p. 156.

130 M. Wimalasena, personal interview.

131 National Environmental Act No. 47 of 1980, s. 31.

132 Inspector General’s Circular No. 1196/95, Crime Branch Circular No. 05/95, 04.10.1995.

133 National Environmental (Procedure for Approval of Projects) Regulations, No. 1 of 1993.

134 The EIA process is designed ‘to predict the environmental consequences of development projects and is an important tool to achieve sustainable development’: see Samarakoon, M. & Rowan, J.S., ‘A Critical Review of Environmental Impact Statements in Sri Lanka with Particular Reference to Ecological Impact Assessment’ (2008) 41(3) Environmental Management, pp. 441–460CrossRefGoogle Scholar, at 441–2.

135 N. 76 above.

136 Gomez, n. 86 above.

137 Jayasuriya, n. 85 above, at p. 2.

138 Coomaraswamy, n. 78 above, at p. 55.

139 Edrisinha, R., ‘Conflict and Constitutional Process: Some Sri Lankan Experiences’, in Democratic Constitution Making: Experiences from Nepal, Kenya, South Africa and Sri Lanka (Nepal South Asia Center, 2007)Google Scholar, pp. 133–8, at 133.

140 Perera, n. 83 above, at p. 107.

141 At the time of the ratification of Sri Lanka’s 1978 Constitution, only two countries in the world had constitutions with environmental rights: Yugoslavia and Portugal. In that same year, over three months later Spain enacted a constitution with environmental rights.

142 N. 41 above.

143 N. 76 above.

144 Watte Gedara Wijebanda v. Conservator General of Forest, n. 113 above.

145 Boyd, n. 13 above, at pp. 278–91.

146 Epp, n. 12 above.

147 See, e.g., Van Liere, K.D. & Dunlap, R.E., ‘The Social Bases of Environmental Concern: A Review of Hypotheses, Explanations and Empirical Evidence’ (1980) 44(2) Public Opinion Quarterly, pp. 181–97Google Scholar; Inglehart, R., ‘Public Support for Environmental Protection: Objective Problems and Subjective Values in 43 Societies’ (1995) 28(1) PS: Political Science and Politics, pp. 57–72Google Scholar.

148 See, e.g., Tyler, T.R., ‘Public Mistrust of the Law: A Political Perspective’ (1998) 66 University of Cincinnati Law Review, pp. 847–876Google Scholar; Persily, N. & Lammie, K., ‘Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law’ (2004) 153(1) University of Pennsylvania Law Review, pp. 119–180CrossRefGoogle Scholar.

149 See, e.g., Gerber, T.P. & Mendelson, S.E., ‘Russian Public Opinion on Human Rights and the War in Chechnya’ (2002) 18(4) Post-Soviet Affairs, pp. 271–305CrossRefGoogle Scholar; Hertel, S., Scruggs, L. & Heidkamp, C.P., ‘Human Rights and Public Opinion: From Attitudes to Action’ (2009) 124(3) Political Science Quarterly, pp. 443–459CrossRefGoogle Scholar.