Litigation

On going cases

Seeppukulama Medawewa CA 87/2017 (Writ)

The history of Irrigation Tanks (Wew) in Sri Lanka dates back to the 5th century BC and it is believed that the 1st tank Panda Wewa located in the Ancient Kingdom of Panduwasnuwara of Sri Lanka was built by King Panduwasdeva in 450BC. This is also believed to be the 1st man made tank in the world. Thereafter, the Kings who ruled the country contributed towards the development of a complex network of tanks in the dry zone of Sri Lanka, some big and some small, mainly for the purposes of irrigation. The North Central Province of Sri Lanka has been called the Wew Bendi Rajje because of its advanced historical network of tanks and tank systems. Many of these tanks are of ancient vintage and are part of the agricultural, cultural, historical, archaeological and social heritage of the Country. Even today, they store and supply water for the agricultural and agro based industries as well as for a large number of other uses, including domestic use. Majority of the people of the North Central Province of Sri Lanka depend on basic agriculture and agro based industries for their livelihood and are dependent on the waters of the Tanks for agriculture as well as other domestic uses.

At present most of the remaining tanks of the dry zone of Sri Lanka face numerous threats such as encroachment of tank reservations which affect the wellbeing of the tank as it results in siltation, water pollution and forest destruction on tank reservations. Eventually, it affects the livelihoods of the farmers. The Seeppukulama, MedaWewa situated in the Anuradhapura District of the North Central Province and the farmers dependent upon it are also facing a similar plight as this tank has been entered and encroached upon. Parts of the tank and its reservation have been filled and converted to other uses including construction and cultivation, some of it permanent – all with drastic effect on the livelihoods of the farmers. The Seeppukulama, Meda Wewa supplies water to approximately 79.5 acres of paddy land and is governed in terms of provisions of the Agrarian Development Act No. 46 of 2000. The key government agency responsible for the protection of small tanks including the Seeppukulama Meda Wewa tank, is the Department of Agrarian Development.

With the view of protecting this heritage, the Public Interest Law Foundation (PILF), a public interest non-governmental organization working inter alia for the protection of environment together with three farmers representing the Seeppukulama Govi Sanvidanaya, the farmer’s Organisation for the purposes of the Agrarian Development Act, filed Writ Application No.87/2017 in the Court of Appeal of Sri Lanka in March 2017. It compelled the relevant government agencies,(including the Department of Agrarian Development) that are under a public duty, to implement the law to protect irrigation tanks, to take appropriate measures, to ensure the protection of the Seeppukulama, Meda Wewa and its surroundings, which includes forests in the tank reservation that is vital for the well-being of the tank. Illegal activities of the encroachers are also being challenged.

The matter is pending in court and will be argued on 17/10/2019.

 

Sinharaja CA 527/2015 (Writ)

In 1875, Sinharaja rainforest located in the South- West of Sri Lanka was declared as a reserved forest in terms of Ordinance No.24 of 1848 (an Ordinance to regulate the cutting down and removal of Timber grown on Crown Lands of Sri Lanka). In 1978, Sinharaja was recognized as an International Man and Biosphere Reserve by UNESCO. In 1988, it was declared as a National Heritage and Wilderness Area under the National Heritage and Wilderness Areas Act No.3 of 1988 of Sri Lanka. In the same year it was inscribed on the world heritage list of UNESCO. The inscription as a world heritage was justified as ‘Sinharaja is the last remaining relatively undisturbed remnant of tropical humid evergreen forest in Sri Lanka’.Its endemism is extremely high with at least 139 species of endemic plants and its faunal endemism particularly for birds, mammals and butterflies exceeding 50%. Sinharaja is also an important watershed, as a network of waterways, generating from it feeds two major rivers, Gin Ganga and Kalu Ganga.

In November 2015, the Public Interest Law Foundation (PILF) through media reports became aware that a 600 Kw mini hydropower plant was being built at the Koskulana River in the Kalawana Divisional Secretariat Area in the District of Ratnapura causing adverse impacts on Sinharaja World Heritage site and the river itself. Upon inquiry PILF became aware that the mini hydropower project was right on the boundary of the Sinharaja World Heritage Site.

The Central Environmental Authority (CEA) had approved the project on the submission of an initial environmental examination report (IEE). PILF’s point is that irreversible adverse impacts of the project on Sinharaja, is best carried out through an Environmental Impact Assessment (EIA) and not through IEE. EIA is a more in depth study than an IEE. The National Environmental Act No.47 of 1980 as amended allows public participation in the decision making process of EIAs and this right is not available for IEEs. During investigations it was observed that the Forest Department under whose control the Sinharaja lies had initially objected to the implementation of the project but had subsequently sent a letter of no objection with no reasons for justification. Also, the IEE report has been submitted to the CEA after the period given for submission in the Terms of Reference. The CEA has granted approval for the project within one day after submitting the IEE report. Another issue taken up by PILF was that the alienation of State land was done in violation of the State Lands Ordinance.

PILF filed Writ Application No.527/2015 in the Court of Appeal of Sri Lanka on 23rd December 2015 challenging the approval process of the project in question. The matter is pending in Court and is fixed for argument on 18/07/2019.

Concluded cases

Trade Union rights and public health

PILF vs. Government Medical Officer’s Association (GMOA) (5366/Spl DC Colombo)
Sumedha Senanayake vs. GMOA(5365/Spl DC Colombo)

The PILF successfully secured an order against the GMOA prohibiting the continuation of strikes which interrupted medical services causing several hardships to the general public. GMOA continues to strike despite the order and PILF was forced to charge the GMOA with contempt of Court. GMOA made point that the District Court (DC) could not entertain contempt of Court applications. The DC decided in favour of PILF and the GMOA appealed against this decision to the Court of Appeal. The case was subsequently withdrawn by PILF since it became academic once the strike ended.

Rights of the Differently –abled

PILF vs. The Colombo Municipal Council (CMC) CA 602/00 (Writ)

PILF Vs M.S Jayasinghe ,Secretary, Ministry of Justice CA 603/00 (Writ)

PILF’s writ applications forced CMC and the Ministry of Justice to provide disabled access in the City of Colombo and the buildings of the latter. The Ministry of Justice settled the case agreeing to correct all existing Courts and for disabled access in new Courts to be constructed. The CMC agreed to settle the case by undertaking and implementing PILF’s proposal on facilities for disabled in the City with Council approval.

 

Saving the Kantale Bund

PILF Vs. Minister of Transport et al, CA 627/2004 (Writ)

The writ application on the protection of the Kantale Bund was concluded in favour of the PILF. The State agreed to suppress the regulation that increased maximum weight of vehicles that should be permitted on roads, to bring back previous regulations in respect of the same and to carryout scientific studies before determining the gross maximum weights that should be permitted on roads.

Protecting public officers serving the environmental cause

H.G.R Dissanayake vs. B.L.V de S Kodituwakku, IGP, et al

M.S. Nandana vs. B.L.V de S Kodituwakku, IGP, et al

W. N de Silva vs. B.L.V de S Kodituwakku, IGP, et al

PILF appeared for the three Wildlife Officers who filed fundamental rights applications in the Supreme Court against a Member of Parliament (MP) and his Security who assaulted them when the politician and his visitors were not allowed to enter the Udawalawe National Park without a tracker. The MP paid compensation to the officers out of Court and settled the matter by apologizing in Court. The Attorney General undertook to prosecute the persons involved in the incident.

Failure to consider alternatives in the EIA for the Southern Expressway (SE)

PILF vs. The Road Development Authority et al

PILF’s writ application challenging the decision of the Central Environmental Authority to approve the EIA for the SE on the basis that it did not consider alternatives to project as required under the EIA law was decided against PILF. The Court of Appeal (CA) also ordered PILF to pay costs. The PILF appealed against the CA judgement and the Supreme Court (SC) dismissed PILF’s appeal. However, the order on costs was dismissed by the SC.

Failure to carry out a fresh EIA for the Southern Expressway (SE)

Dahanayake et al, vs Wijewickrama et al, 1330/02 and 1447/02 and SC 135/02 and 136/02

The residents of Akmeemana filed the writ applications complaining that the deviated route to the SE (after the original trace was approved) was not studied under the EIA report and that it required a fresh EIA report prior to its approval. THE CA appointed a committee of 03 retired Supreme Court Judges to make their recommendations on the matter. The said committee reported to Court that the deviation could only be considered practical anddesirable if the procedure set out in the law relating to changes to projects is complied with. However, the Court of appeal dismissed the applications without going ahead on the recommendations. The residents appealed against the judgment to the Supreme Court (SC). The SC justifying the CA judgment ordered that the residents be paid compensation.

Failure to carry out a fresh EIA for the Southern Expressway

United Nations Human Rights Commission Communication No. 1331/2004

The communication was concluded on the 25th of July 2007. UNHRC decided that the communication submitted on behalf of the affected people is inacceptable under the optional protocol. Previously, the affected persons were compensated by the Supreme Court (SC) in a special leave to appeal application. The people’s argument before the UNHRC was that instead of granting relief in compensation, the SC should have enjoined the project when it found out that the law and their fundamental right to equality was violated.

Case to prevent land acquisitions for expressway

G. Gunadasa and A.A. Sunanda Vs. G.A.A.L.Wijewickrama and four others and a connected application CA 557/2005 (Writ) and CA 939/2005

The Road Development Authority (RDA) paid compensation to the petitioners and they were directed to challenge the amount of compensation before the Land Acquisition Board of Review if they were not satisfied withit. PILF assisted the people in this application.

Regulating the disposal of garbage by Local Authorities

PILF v CEA CA 601/00 (Writ)

PILF filed a writ application seeking an Order against the CEA to regulate random garbage dumping by Local Authorities (LAs). The CEA settled the case by issuing orders under the National Environmental Act to all LAs to submit plans for proper management of garbage and undertaking to monitor the implementation of the said plans. As prayed for by PILF the Court directed the relevant Municipal Councils to start monitoring committees (with the representation of PILF) and to continuously monitor progress of waste management within each Municipal Council limit. All relevant agencies including the CEA were represented at these committees

Non appointment of Elections Commission

PILF vs. AG et al

Failure to appoint an independent Elections Commission by HE the President in terms of the 17th Amendment to the Constitution was challenged by PILF through a writ application in the Court of Appeal.

Conservation of Knuckles Forest Case

PILF and other Vs. CEA and eight others (S.C. Special L.A. 165/2007)

The PILF filed a petition in the Court of Appeal against the CEA and seven others in order to protect the Knuckles Conservation Forest from illegal constructions. The PILF when filing action took into account the biological and hydrological value of the Knuckles Forest range, the public interest in particular and the interest and welfare of the residents of the village of Pitawala and Mahalakotuwa in Illukkubbura in the District of Matale. The case was concluded on 18.5.07 in favour of the Respondents. PILF filed a special leave to appeal application in the Supreme Court against the Court of Appeal decision and the said appeal was also concluded in favour of the Respondents.

Requesting the government to enforce regulations on air emission standards

PILF Vs. Samastha Lanka Threeroda Ratha Riyadurange Subha Sadhaka Sangamaya and 58 others (S.C.F.R. 68/2007)

The PILF wanted to intervene in an application filed by the trishaw drivers association against the government’s decision to ban importation of two stroke trishaws. Since its inception PILF has taken an active interest in securing suitable legal and administrative measures to control air pollution in Sri Lanka, and in particular the city of Colombo. The PILF, in its application requested inter alia to direct the State to enforce the Regulations in respect of air emission standards. The Respondents to the case informed Court that the Hon. Minister of Environment has referred this matter to a committee of experts and PILF was directed to submit its comments to the said committee. PILF sent its comments accordingly.

Enforcing the EIA Regulations

PILF and others Vs.Geological Surveys and Mines Bureau and other CA 459/00 (Writ)

PILF and affected residents of Narankaduwa challenged the industrial mining license issued by the Geological Surveys and Mines Bureau (GSMB) for a quarry, activities of which threatened the surrounding environment and lives and property of the people. The case sought to create a precedent on the EIA procedure applicable to industries that use explosives.

There were several landslides as a result of quarrying activities which led the GMSB to suspend the license issued. GMSB gave an undertaking that no licenses will be issued for further quarrying by Daya Constructions (Pvt) Ltd, the 2nd respondent.

A report was also been issued by the National Building Research Organization (NBRO) setting out procedures for the removal of boulders from the site, which had been deposited after the earth slip. Final terms of settlement were entered between parties based on the said report. The 2nd Respondent agreed amongst other things to restore and rehabilitate the quarry site and its surrounding environment. Progress reports were to be filed in Court. No fresh licences were issued to the said respondent for quarrying at this site.