By C. A. Chandraprema Courtesy The Island

• Unbridled corruption over two decades alleged
• Loopholes in 13th amendment exploited
• Supreme Court misled
•  Need for parliament to override provincial council statutes

September 8, 2016, 9:37 pm

(A picture of Norochcholai Coal Power Plant)

A website reported a recent incident which had simply gone over the heads of the mainline media; President Maithripala Sirisena had pulled up the Director of the controversial Wayamba Environmental Authority and after questioning him on the period he had served in that position and other matters, ordered the Chief Minister to transfer him out. The incident highlighted by the aforesaid website is not simply a case of a provincial government employee staying in one position for too long and doing you-know-what; it concerns a complicated matter of constitutional law in this country. Given the importance of the issue at stake, President Sirisena’s attempt to intervene in this matter should have hit the headlines, but it went virtually unnoticed. Almost everybody has heard of the Central Environmental Authority and its acronym CEA is well known.

But, very few people have heard of the Wayamba Environmental Authority or are even aware that the Wayamba province has its own environmental authority and that the CEA has no authority in that province thanks to the devolution of power. Furthermore, Wayamba is the only province that has its own environmental authority. Even the north does not have its own environmental authority. Many readers will be surprised to learn that the Norochcholai power plant (located in Wayamba) which gained much publicity as a possible environmental hazard has commenced operations without an Environmental Impact Assessment from the Central Environmental Authority. Even in India, coal powered thermal power plants have to be granted environmental certificates by the central government.

How did this situation come about and how is it that only the Wayamba province has its own environmental authority? More than a quarter of a century ago in 1990, the then UNP Chief Minister of the North Western Provincial Council Gamini Jayawickrema Perera decided to have a separate Environmental Authority for the North Western Province. Under the provisions of the 13th Amendment, ‘protection of the environment’ comes under the concurrent list of powers which fall under the purview of both the provincial councils and the government. According to Article 154G (5)(b) of the 13th Amendment, a provincial council can make statutes on any matter coming under the concurrent list ‘after such consultation with Parliament as it may consider appropriate in the circumstances of each case’. Conversely, according to Article 154G(5)(a) Parliament, too, can make laws on any subject coming under the concurrent list after consulting each and every provincial council as parliament ‘may consider appropriate’ on a case-by-case basis. The system is weighted against the government because the centre has to consult nine separate provincial councils and get the assent of them all whereas a province which wants to make statutes relating to a subject on the concurrent list has only to consult one parliament.

Parliamentary oversight circumvented

After the NWPC drafted the ‘North Western Province Environmental Statute’ it was sent to Parliament for consultation. Parliament referred this to Standing Committee A for a report. Standing Committee A was at that time headed by Gamini Fonseka and had nine other members which included Vasudeva Nanayakkara and Dinesh Gunawardene. The conclusion that this parliamentary standing committee arrived at was that ‘there are many constitutional inconsistencies in the draft statute’ and that therefore parliament should send it to the president to be referred to the Supreme Court for clarification. When this draft statute was referred to them by Parliament, the Presidential Secretariat sought the views of the Attorney General on this matter and the opinion expressed by the AG was that parliament could not refer a draft statute of a provincial council to the president to be in turn referred to the Supreme Court but that it was the Governor of the Province who had to send such a statute to the President to be referred to the Supreme Court. So, the presidential secretariat wrote back to parliament saying that they had no authority under the Constitution to refer this draft statute to the Supreme Court.

Thus, the parliamentary consultative process with regard to the North Western Province Environmental Statute remained stalled. All this took place in 1990 and in this situation of gridlock, the NWP provincial administration went ahead and set up the Wayamba Environmental Authority under the North Western Environmental Statute No: 12 of 1990 and this institution was operational by the 1st July 1993. Since that time this institution has continued to exist amidst legal and administrative confusion. Even the Attorney General’s department was uncertain as to whether the North Western Environmental Statute had been legally passed. In a letter dated 5th August 1994, regarding the North Western Province Environmental Statute and the National Environmental Authority, the Attorney General wrote that ‘he presumes’ that the NWP Environmental Statute was passed in consultation with Parliament in which case, the National Environmental Act would be inoperative in the North Western Province. So, one year after the NWP Environmental Authority became operational, even the Attorney General’s Department was not really sure whether the NWP Environmental Statute had been passed in consultation with Parliament as required by the Constitution!

On 12 January 1995, Saman Senanayake, the Director of the NWP Environmental Authority admitted at a meeting with the Central Environmental Authority that they did not have the capacity to issue Environmental Protection Licences (EPL) and Environmental Impact Assessments (EIA) because of ‘lack of staff and technical expertise’ within the NWP Environmental Authority. Then it was decided that the Central Environmental Authority would issue EPLs and EIAs in the North Western Province as well until further notice. Nearly two years later, on 12 December 1996, the NWP Environmental Authority had a meeting with the then minister in charge of the subject of Environment, Srimani Athulathmudali, and here, too, emphasis was placed on building up the institutional capacity of the NWP Environmental Authority.

Govt. grovels before PC

Nobody seemed to know whether the NWP Environmental Authority was legally instituted, yet there was an ‘authority’ functioning with dubious legal status and with virtually no technical expertise or institutional capability to carry out the duties for which it was ostensibly established. The Central Environmental Authority could enter the NWP only on the sufferance of this dubious body. In the year 2000, the government wanted to pass an amendment to the National Environmental Act to among other things, stipulate punitive measures for those disposing of waste that could damage the environment without a valid licence and in accordance with the procedure laid out. Since the subject of environment was on the Concurrent List, Parliament had to consult each and every provincial council before this legislation could be passed. When the Bill that was to become the National Environmental (Amendment) Act No. 53 of 2000 was first sent to the NWPC, they threw it out.

The Secretary to the Ministry of Forestry and Environment then wrote to the Chief Minister of the NWPC pleading that the proposed national legislation would not have any impact on the NWP because there was a different Environmental Statute in force in the NWP. The grovelling worked and the NWPC gave their assent to the National Environmental (Amendment) Act No. 53 of 2000. Thus the North Western Provincial Council gave its assent to a law that would have effect everywhere else except the NWP! One would think that if a law is not applicable to a province, then they should have not have any role in either approving or rejecting that piece of legislation. But that is not how the 13th Amendment is drafted. According to Article 154G (5) (a) of the 13th Amendment, when parliament is enacting legislation in relation to a subject on the concurrent list, they have to consult ALL provincial councils regardless of whether the law they were enacting has any relevance to that particular province or not.

Be that as it may, the uncertainty as to whether the NWP Environmental Statute had been passed legally continued into the new millennium. On June 28, 2001, the Court of Appeal observed on an application made by an environmental NGO that in the event of a coal power plant being located in Norochcholai, the Chief Minister of the NWP would obtain an Environmental Impact Assessment from the Central Environmental Authority. There was no reference made to the NWP Environmental Authority. The Appeal Court probably thought quite correctly that the latter institution did not have the capacity to carry out such an assessment and hence the instruction to the NWP chief minister himself to seek CEA certification.

The question whether the NWP Environmental Authority was a legally constituted entity was not asserted by anybody with any degree of confidence until on the 18th May 2009, the Supreme Court in hearing a different case declared that according to a report submitted by Saman Senanayake, the process of ‘consulting’ Parliament had taken place and that the relevant Standing Committee of parliament had expressed the opinion that the Statute be accepted subject to certain inconsistencies between the Constitution and the statute being ironed out. The Supreme Court said that the inconsistencies had been removed in the statute that has been published in the gazette and that accordingly, the Supreme Court declared that the North Western Province Environmental statute No: 12 of 1990 had been constitutionally enacted by the Western Provincial Council and that therefore national environmental legislation did not apply to the NWP.

Though the Supreme Court declared that the Provincial Council Statute setting up the NWP Environmental Authority had been passed constitutionally, that was on the basis of a report submitted by the controversial Director of the Wayamba Environmental Authority himself – the very person reportedly pulled up by president Sirisena. The question arises as to what is meant by the term ‘consultation’ – whether it is merely ‘informing’ Parliament and not seeking its approval on matters relating to the concurrent list. The North Western Province Environmental Statute was referred to Parliament for consultation and the recommendation made by Standing Committee A of parliament was that it should be sent to the president to be forwarded for clarification from the Supreme Court because it had sections that were inconsistent with the constitution. This was all that Parliament did. Parliament never approved the NWP Environmental Statute. After being sent to the President, it was found that the president had no power to forward a provincial statute to the Supreme Court and that it was the Governor of that province who should refer it to the President to be sent to the Supreme Court for an opinion.

Salvation lies in Article 154G(9)

It’s now more than a quarter of a century since the NWP Environmental Authority started operations in a state of constitutional confusion. In the meantime, an improperly constituted body in the NWP with questionable technical expertise and resources is in charge of granting environmental approvals. Thus, it has come to pass that the Norochcholai power plant does not have Central Environmental Authority certification. As pointed out earlier, even in India, from where we are supposed to have borrowed our model of devolution, coal powered thermal power plants need environmental certification from the central government even though the states in India are bigger and have larger economies than many nations in the world. If anything goes wrong in the Norochcolai power plant it will affect the whole of Sri Lanka not just the NWP and this mega project has got off the ground without the CEA having assessed its environmental impact.

We have to be mindful of the fact that the only reason why other provinces have not followed the example of the NWP and had their own environmental authorities is because the controversy surrounding the NWP Environmental Authority has alerted parliament and the confusion that gave the NWP Environmental Authority the cover to commence operations is unlikely to be replicated. It is still too early to say whether President Maithripala Sirisena’s initiative to remove the controversial and long serving Director of the Wayamba Environmental Authority will have any effect. Those who are familiar with the issue say that if this controversial Director Saman Senanayake is removed and the files of the Wayamba Environmental Authority are handed over to the CEA, that will solve the problem.

The incumbent government which kicked out a sitting Chief Justice saying he had not been lawfully appointed should be able to do the same thing with much greater justification in the case of the NWP Environmental Authority. In the case of Mohan Peiris, this government has not yet explained in what way his appointment was irregular. Finding an answer to that question will have to wait for a change of government. However, in the case of this NWP Environmental Authority, the foregoing account shows that it was never properly constituted. That alone will be enough to dissolve the institution and bring its functions under the CEA. We hear that the long serving and controversial Director of the NWP Environmental Authority has been frantically canvassing his erstwhile bosses in the UNP including Gamini Jayawickrema Perera in a bid to prevent the dissolution of the NWP Environmental Authority.

This Saman Senanayake, described as a skilled operator, has managed to retain his position through six governments from the early 1990s to the present – an unparalleled feat. If even the president’s personal intervention in this matter does not work, the only alternative may be to invoke Article 154G (9) of the Constitution which states that where a provincial council makes laws that come into conflict with a pre-existing national law relating to a subject in the Concurrent List, the said national law will stand suspended in the province concerned. However, Parliament can by a resolution passed with a simple majority, override the new statute made by a provincial council and decree that the pre-existing national law will continue to be enforced in that province. If proper closure is to be brought to this sordid episode of the NWP Environmental Authority, perhaps the only real option may be to invoke Article 154G(9) of the Constitution.