The decision by the Court of Appeal against Rishad Bathuideen on his conduct, with regard to the violations of multiple laws in the destruction caused to the Kallaru Forest Reserve as the minister in charge of Industry and Commerce is one that could have far reaching impact than even it has on the immediate respondent. One such is that it could arguably be the first time such a severe decision has been made against a minister of a cabinet ranking, on any violation, let alone environment.
The CA ordered the former Minister to contribute from his personal funds, once the Conservator General of Department of Forest Conservation makes the calculation of the tree planting programme as ordered by the court. Interestingly, the court is not specific as to the location where the above tree planting is ordered to be carried out. All that the judgment states is it should be ‘’equivalent to the Reserve Forest area that was used for the resettlement of internally displaced people’’ from Jaffna due to LTTE threats. It’s also interesting that the court uses the term ‘any area’, thereby creating the likelihood of the planting programme to be done in another area other than the location where the people have been settled.
But in practical terms, the availability of such a huge tract of land anywhere else in Sri Lanka would border on the impossible. Further, any such exercise by the Forest Department would increase the costs for the minister concerned. With the above issues in play, the most feasible location for the tree planting programme would obviously be the very area destroyed for the settlement of 1500 families-the fate of which the court has not directly addressed to, other than stating that it recognizes the ‘’need to settle down all IDPs who were displaced due to the war in Sri Lanka as far as possible in the areas where they were residing’’. On the other hand the CA , in no uncertain terms, ‘’concludes that the re-settlement of the IDPs was made in violation of the provisions of the Forest Conservation Ordinance’’ and ‘’the resettlement has been done in breach of the law and the Court must do all what can be done within the law to address the unlawful acts’’.
Court goes on to order the First Respondent, Conservator General of Department of Forest Conservation to provide the required assessment of expenditure within 2 months, which in turn would compel the respondent minister to pay the relevant sum of money within 30 days, once the assessment is made.
Incidentally, the name of the minister has not been included by the plaintiff as a respondent party to the Mandamus order requested from the court .However, the court of appeal finds the minister ‘’ was instrumental in getting this land released for the resettlement of IDPs. On 15.01.2013 a meeting was held under the chairmanship of the 7th Respondent (Rishad Bathuideen) with the participation of the Secretary, Ministry of Environment and Sustainable Energy, Director General of Forest Conservation and his officers and a decision was made to release several lands for the re-settlement of IDPs’’. Court observes that ‘’ Such a release of reserved forest land for re-settlement of IDPs could have been done only if there had been an order made by the Minister[for environment] in terms of section 4(2) of the Forest Conservation Ordinance declaring that the land in dispute is no longer reserved forest. No such order has been made.’’
It’s further interesting to note the scathing remark by the court that the conduct by the then Conservator General of Forest K.G. Ariyadasa had been deplorable in his signing the said illegal decision. Quite surprisingly, the respondents had been unable to produce any documentary evidence of a decision made by the Presidential Task Force for Resettlement and Security, or the Committee appointed by the Task Force to make recommendations to resolve land related issues in Muslim Villages Displaced in 1990 in support of the encroachment made in to the forest reserve, despite the assertions by the respondents that they had been authorized to do so.
However, it’s not only the eventual decision by the Court of Appeal that would hearten the environmentalists, but the use of a number of provisions in the constitution such as article 140 which gives the right to the court to move beyond the prerogative writ actions and grant ‘’orders that constitute one of the principal safeguards against excess and abuse of executive power’’.
Further, court emphasizes on article 27 which implies that the judiciary is part of the State and ‘’is bound to protect, preserve, and improve environment for the benefit of the community.’’
Yet another has been the use of both Public Trust Doctrine which ensures ‘’that powers vested in public authorities are not absolute or unfettered but are held in trust for the public, to be exercised for the purposes’’ and ‘’that their exercise is subject to judicial review by reference to those purposes’’. The most significant aspect of the judgment has been the Polluter Pays principle, which has been imposed on a senior politician in this case, arguably for the first time ever in Sri Lanka.
In addition to the direct effect of the judgment, the implications from it may have far reaching consequences. A judicial precedent of this scale would reverberate across the political spectrum. Regional politicians with the ever common Mafia Don-benefactor style are quite simply law unto themselves, and their servile public officials may take note that their fortress of impunity has been compromised .A determined effort of public interest litigation could make inroads in to their fiefdoms of criminality and most importantly the possibility that they could be made to pay for their daylight robbery of State assets for own gain has just got higher.
The court of appeal has made a deep incision into the seemingly impregnable armor of executive decisions in violating laws of the land in the looting of national assets. Its opportune times for the environmental organizations to set aside their petty jalousies and work together in bringing to justice even larger crimes against the environment, wantonly committed by various regional war lords during recent past.
The painful fact however, has been the plight of the 1500 families who had suffered untold miseries for 30 long years, who with this decision may find that they occupy a land to which they have no entitlement to. For three long decades they have been the helpless innocent pawns of vicious pocket borough politics that abuses the poor for own selfish motives. (KS)