Need for a constitutional and statutory framework on the environment and climate change in Sri Lanka

By Navraj Singh-Ghaleigh and Asanga Welikala

The Sri Lankan media is filled with worrying stories each day about its environment. From the human-elephant conflict to deforestation, from illegal sand-mining to the depletion of mangrove wetlands, from coastal erosion to wildlife poaching, it is becoming clear that Sri Lanka faces an environmental crisis. 

Many developing countries, of course, face similar challenges, arising from the tension between the needs of economic development, on the one hand, and the need to protect the natural environment, on the other. Poor governance and weak institutions also play a central role in aggravating this tension in developing societies. Sri Lankan environmental experts and activists are trying their best to draw attention to the crisis, and to propose policy and institutional reforms that are needed to overcome it. 

One notable gap in Sri Lankan debates, however, is that discussions about immediate and current instances of environmental violations do not seem to be conducted in the inescapable context in which they must be addressed. That context is the global climate change crisis. Sri Lanka is a signatory to the Paris Agreement, but there has been very little if any public debate on climate change, including what it means for the country, and what Sri Lankans – both its government and its people – must do to play their part in the global response to this existential challenge. 

We believe that the scale of the challenge is such that the domestic response to climate change must start with the highest level commitment any state can make, that is, a constitutional acknowledgement of climate change issues. 

The legal and regulatory response will need new laws and regulations as well as changes to sub-legal rules and practices – a pervasive change in institutional culture and morality – but the constitution must be the place where a real and serious commitment to tackling climate change should begin. 

It was in this context that in November 2020 we made a submission to the cabinet-appointed committee currently considering proposals for a new constitution for Sri Lanka. What follows is a summary of our proposal. 

The climate change challenge: The background 

Climate change poses an existential and near-term threat to nations and communities globally. The earth’s climate system is unequivocally heating. In 2018, the International Panel on Climate Change (IPCC) presented the scientific consensus, for the sixth time since 1990, that human activity is causing rapid and ongoing changes to our global climate. Scientists attribute these changes to an increase in concentration of Green House Gases (GHGs) from fossil fuel use, driven largely by global development and economic growth. The release of GHG emissions traps infrared radiation in the earth’s atmosphere, causing global heating. The ongoing release of emissions will increase the global mean temperature considerably over 2°C by 2100.

Such temperature rises will cause climatic changes that will have negative and far reaching impacts globally. Initial impacts will be felt most strongly across natural systems and will lead to adverse knock-on social and economic consequences. Across Asia, for example, sea-level rise is already threatening heavily populated coastlines and low-lying regions. Rising temperatures are also causing Himalayan glacial melt, increasing the risk of floods, and depleting the flow of major rivers. According to the World Bank, 800 million South Asians will experience declining productivity, incomes, crop yields, and health due to climate change. These impacts are a select few of the many climate-related risks to health, livelihoods, food security, water supply, human security, and economic growth which are projected to increase with global warming of 1.5°C, and would increase further with 2°C. 

Many parts of Asia are vulnerable to the impacts of climate change, owing to large coastal populations, the frequency of natural disasters, and rapid urbanisation. The Paris Agreement has been ratified by Sri Lanka, and achieved universal ratification in Asia. It commits parties to reducing their GHG emissions to meet their general obligations to limit global temperature rises. It also contains provisions specifically relevant to finance. These commitments aim to keep the increase in global average temperature to well below 2°C in comparison to pre-industrial levels, and to pursue efforts to limit the increase to 1.5°C. This equates to keeping 80% of current fossil fuel reserves in the ground. To meet Paris temperature targets, the science is unequivocal that we need collectively to achieve net zero carbon emissions by 2050. 

Whereas the science and international law are clear on what is necessary, domestic law generally, and constitutional law especially, are lacking. Only a tiny number of national constitutions have clauses relating to climate change. All are either weakly phrased, or contain standards inadequate to meet the science, or both.

How can Sri Lanka tackle climate change?

The current Sri Lankan constitutional reform process provides a unique opportunity to mark a new chapter in constitution-making, which acknowledges the urgency of the climate crisis, and the capacity of constitutional law to contribute to its resolution. 

As a first mover in the region, Sri Lanka will establish its reputation as a global climate leader which in turn will open up channels of international climate finance (both public and private) to support the transition to a low carbon economy.

We propose, accordingly, that a climate change chapter be added to the future Sri Lankan constitution. It will contain a performance standard: net zero greenhouse gas emissions by 2060. This is both regionally leading – China has recently adopted a similar standard – and provides Sri Lanka with sufficient time to make a well-planned and prosperous transition to a low carbon economy.

The transition must be based in science. To this end an independent Commission on Climate Change is also proposed. The Commission, based on the UK’s successful model of a Committee on Climate Change, would provide government with a scientifically robust basis for action, as well as report on the state’s progress towards the target. Critically, and in line with the international Task Force on Climate-Related Financial Disclosures (TCFD) process, the proposed Commission will also advise on the risks that climate change poses to Sri Lanka. These risks are both physical (i.e., more frequent or severe weather events like flooding, droughts and storms) and transitional (when moving towards a less polluting, greener economy), with social and economic consequences requiring expert information and management.

The transition to a net zero economy and society must also be sensitive to the needs of workers, especially those currently operating in carbon intensive sectors. Following recommendations of the International Labour Organisation (ILO), we propose that the state encourages the creation of decent work and quality jobs in sustainable economic sectors in accordance with its own defined development priorities.

Finally, we recall that taking constitutional and statutory measures to protect the environment via tackling climate change strongly resonates with long-standing traditions of Sri Lankan culture. 

Theravada Buddhism in particular is associated with a deep concern for respectful relationships between humans, animals, and nature. 

The framework of the Triple Gem encompasses all beings and all things. It would therefore seem entirely appropriate in such a culture to reflect at the level of the constitution the commitments of the state to the globally recognised principle of sustainable development as expressed in the biodiversity and climate change regimes.

What new constitutional provisions are needed?

Constitution-level changes that are needed are of two types: fundamental rights relating to the environment and climate change; and a new substantive chapter on climate change.

Additions to the Chapter on Fundamental Rights

We recommend the inclusion of the following justiciable fundamental rights:

1. Every person has the right to live in a healthy environment, to full enjoyment of the natural environment, and to receive any environmental information held by the state in a timely manner. 

2. The state shall adopt all reasonable measures to ensure environmental protection and the sustainable use of natural resources, and to address climate change, taking into account the interests of current and future generations, and the right of every person to participate in environmental decision-making.

New Chapter on Climate Change

At minimum, a chapter on climate change in a future constitution must provide for the following principles and institutions: 

1. Pursuant to its obligations under the Paris Agreement, the state commits to an economy with net-zero greenhouse gas emissions by 2060.

2. There shall be a Commission on Climate Change. The Commission’s function will be to provide regular, expert advice to the state to meet its net-zero obligation, define nationally determined development priorities, and respond to both physical and transition climate risks. The Commission will be independent of government, comprised of experts, and its advice will be considered in good faith by its addressees. 

3. The Commission will be provided for in an Act of Parliament to be passed within 12 months of the entry into force of the new constitution. The Act will require the Commission to advise the state on progress towards the net-zero target, regularly report and publish on the state’s progress towards the target, and require the state to respond substantively to the Commission’s advice. The Commission will also have a duty to provide advice or other assistance on request. 

4. The transition to a net-zero economy and society must protect the most vulnerable, including workers in carbon intensive sectors. To this end the state will encourage the creation of decent work and quality jobs in sustainable economic sectors in accordance with nationally defined development priorities.

What should a new Climate Change Act contain?

The constitutional clauses described would need to be elaborated by primary legislation, which must provide for the matters enumerated below. There are many comparative laws that Sri Lankan drafters can look at, but we base our recommendations on the UK Climate Change Act 2008, which is considered a model in the field. 

The future Act must provide for: 

1. Carbon targets and the procedures for carbon budgeting, and the powers, functions, and duties of the Minister;

2. The composition, appointment, powers, functions, duties, and funds of the constitutionally established Climate Change Commission, and ensure that these arrangements equip the Commission with the necessary independence, expertise, and funding to be able to meet its constitutional purpose;

3. The promulgation of trading schemes for limiting activities that cause GHG emissions, and for encouraging activities that reduce GHG emissions;

4. The development of policies and programmes, and reporting and publishing obligations, of public authorities other than the Commission, on the impact of, and adaptation to, climate change in terms of the State’s obligations under the Constitution and international law.  

In addition, we would recommend consideration of the following matters:

1. The Act must be designed with appropriate regard for the subjects devolved to the Provincial Councils. Any provisions that affect a devolved subject or function must involve the relevant devolved institution within the scheme of the Act, and must not be used, directly or indirectly, to re-centralise powers.

2. The Act must establish a transparent, accessible, and cost-effective complaints and dispute resolution framework. 

3. Without prejudice to the established ordinary or special jurisdiction of any court or tribunal, the Act should provide a procedure that facilitates legal proceedings against breaches or imminent breaches of the Act. Sri Lankan drafters can be guided in this respect by the International Bar Association’s Model Statute for Challenging Government Failure to Act on Climate Change.

4. An appropriately drafted prevalence clause which ensures that, unless there is good reason, the provisions of the Act and any lawful action taken thereunder, prevails against any inconsistent statutory provision or administrative act.

Conclusion

We have set out the contours of the constitutional and statutory framework that is indispensable to Sri Lanka’s response to the climate change challenge. The Government enjoys a two-thirds legislative majority and the practical agenda of reform we have outlined should pose no difficulty in being realised, if the political will is present. This framework will also lay the basis for responding more effectively to the more immediate and visible problems, often highlighted in the Sri Lankan media, about ecology, biodiversity, and sustainable development. 

Tackling the challenge of the climate change crisis, of course, goes much beyond institutional reforms, and demands deep change in mindsets and cultures. In concluding, therefore, we draw our readers’ attention to the following extract from ‘The Time to Act is Now: A Buddhist Declaration on Climate Change’ (2015):

“Many scientists have concluded that the survival of human civilisation is at stake. We have reached a critical juncture in our biological and social evolution. There has never been a more important time in history to bring the resources of Buddhism to bear on behalf of all living beings. The four noble truths provide a framework for diagnosing our current situation and formulating appropriate guidelines – because the threats and disasters we face ultimately stem from the human mind, and therefore require profound changes within our minds. If personal suffering stems from craving and ignorance – from the three poisons of greed, ill will, and delusion – the same applies to the suffering that afflicts us on a collective scale. Our ecological emergency is a larger version of the perennial human predicament. Both as individuals and as a species, we suffer from a sense of self that feels disconnected not only from other people but from the Earth itself. We need to wake up and realise that the Earth is our mother as well as our home – and in this case the umbilical cord binding us to her cannot be severed. When the Earth becomes sick, we become sick, because we are part of her.”

(Navraj Singh-Ghaleigh is Senior Lecturer in Climate Law and Asanga Welikala is Lecturer in Public Law at the School of Law, University of Edinburgh. Their proposal to the Sri Lankan process was made on behalf of the Edinburgh Centre for Constitutional Law.)