WATTE GEDERA WIJEBANDA VS. CONSERVATOR GENERAL
OF FORESTS AND OTHERS

SUPREME COURT
SARATH N. SILVA, C. J.
SHIRANEE TILAKAWARDANE, J. AND
SALEEM MARSOOF,
S.C. APPLICATION NO. 118/2004
SEPTEMBER 7TH, 2005,
OCTO MER 10TH AND 24TH, 2005,
JANUARY 9TH,2006,
JUNE 5TH,2006

Fundamental Rights - Constitution - Article 12(1) - Equality before law - Article 27(4) - Directive principles of State policy enjoins the State to protect, preserve and improve the environment - Article 28 - Fundamental duty upon every person to protect nature and conserve its riches - Public Trust doctrine - Present generation holds the natural resources in trust for future generations - National Environment Act No. 47 of 1980 - Section 26(1) as amended by Section 9 of the National Environmental (Amendment) Act No. 56 of 1988 - Permit delegation of the powers and functions of the Central Environmental Authority to any Government Department, Corporation, Statutory Board, Local Authority or any Public Officer - Fauna and Flora Protection Ordinance No.2 of 1937 - Section 2 - Minister has power to declare a specified area of land to be a national reserve.

The Petitioner was granted leave to proceed in respect of an alleged infringement of Article 12(10) of the Constitution.

The petitioner instituted this application for violation of his fundamental rights, after being refused a permit for quarry mining of silica quartz in an environmentally sensitive area. However, he became aware that one, several or all the 1st to 5th respondents had granted a mining permit to the 6th respondent with respect to the same area to carry out quarry mining. The petitioner claims that the respondents have acted in a discriminatory manner depriving and denying the petitioner of his right to equal treatment.

Held:

(1) The Constitution in Article 27(4) 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 to protect nature and conserve its riches.

(2) The doctrine of "public trust", recognized that the organs of State are guardians and preservers of the resources of the people.

(3) Under the 'public trust doctrine' as adopted in Sri Lanka, the State is enjoined to consider contemporaneously, the demands of sustainable development through the

     efficient management of resources for the benefit of all the protection and regeneration of our environment and its resources.

Per Shiranee Thilakawardena, J.

    "Human kind of one generation holds the guardianship and conservation of the natural resources in trust for future generations, a sacred duty to be carried out with

     the highest level of accountability."

(4) Even if environmental rights are not specifically alluded to under the fundamental rights chapter of the Constitution, the right to clean environment and the principles

     of equity with respect to the protection and preservation of the environment are inherent in a meaningful reading of Article 12(1) of the Constitution.

(5) Although the Directive Principles of State policy in Article 27(4) of the Constitution, are riot specifically enforceable against the State, they provide important

     guidance and direction to the various organs of State in the enactment of laws and in carrying out the functions of good governance.

(6) Although, the international instruments and constitutional provisions are not legally binding upon governments, they constitute an important part of our environmental

     protection regime, and the importance and relevance of which must be recognized when reviewing executive action vis-a.-vis the environment.

(7) In terms of Article 3 of the Constitution the sovereignty is in the people, and is inalienable and being a representative democracy, the powers of the people are

     exercised through persons for the time

    being only, entru