Are administrative authorities in slumber while nature is at stake?
Controversially, the deforestation accusations are aimed at State agencies and the issue is further ethno-politicized due to the accusations made at Muslim communities engaging in forest clearing and illegal land settlement, particularly aimed at the Minister of Trade and Commerce Rishad Bathiudeen’s alleged patronage for such settlements…While there are many laws in place for the regulation of state owned forest resources, the issue is the discrepancy that exists between the law and its procedural enforcement.
The Wilpattu Wrangle
The wrangle in Wilpattu has now complicated into an issue of environmental politics taking an ethnic twist discerned by deforestation; unauthorized land settlement in forest reserves and encroachment of the WNP as a whole. Although the debates against deforestation have lingered in international environmental politics since the second half of the 20th century, it is now full-blown in the Wilpattu forest complex especially in the forest reserves of Kallaru, Karadukkuli and Vilaththakulam. In fact, the tropical deforestation discourse in Wilpattu dates back to 2009, where the contiguous Northern Sanctuary was under destruction due to the development of certain housing schemes for internally displaced persons (IDPs) of the war. Moreover, debate arose as to how the road B379 was built right through the WNP, which is a pathway for human hands to encroach the forest, thereby disrupting the prolific eco-system as a whole. In the years 2011 and 2012, Kallaru continued to be encroached by human habitats while the area of Vilaththikulam in the Musalai Divisional Secretary’s Division in Mannar District is threatened by rapid deforestation since 2015.[i] Controversially, the deforestation accusations are aimed at State agencies and the issue is further ethno-politicized due to the accusations made at Muslim communities engaging in forest clearing and illegal land settlement, particularly aimed at the Minister of Trade and Commerce Rishad Bathiudeen’s alleged patronage for such settlements.
Given these controversies surrounding the devastation in Wilapattu, the issues are no longer clear-cut or easily discernible. Much of the debate is now tug-war mayhem, when what really required is an analysis of what administrative action that ought to be taken in order to halt the devastation.
Actions speak Louder: what can be done?
The two main agencies accused of the slumber whilst Wilpattu is devastated are the two agencies responsible of managing state owned forest resources: the Forest Department and the Department of Wild Life Conservation. While there are many laws in place for the regulation of state owned forest resources, the issue is the discrepancy that exists between the law and its procedural enforcement. For example, according to the FFPO no person shall enter into a National Park except for the purpose of observing Fauna and Flora (S. 3(2)). Then, using the WNP for any other purpose other than for observation and study is a clear violation of the law. Yet, it takes place in broad daylight.
The investigations on administrative inaction regarding the unauthorized Kallaru resettlements, initiated by the Ministry of Environment and Mahaweli Development in 2015 are pending and the progress of these investigations remain ambiguous to the public eye.[ii] Theoretically, ministerial responsibility in accounting for administrative errors has been understood to have deficiencies; where eminent scholars like William Wade and Christopher Forsyth outlines that administrative justice demands regular, efficient and non-political machinery for investigating individual complaints against governmental action of all kinds.[iii] In the English case Dyson V Attorney General, Justice Farwell famously stated that, Courts are the only defense of the liberty of the subject against departmental aggression.[iv] Thus, in terms of the transgressions that have already occurred, it is apparent that the judiciary has a strong role to play in terms of corrective justice. In fact, currently there are several cases filed against authorities on the issues of WNP by Environmental Organizations.
Responsibilities: Legal and Social
However, in terms of the future of WNP and its conservation, it is not only the judiciary that has a role to play. There are legal and social responsibilities entrusted on administrative bodies in protecting natural resources. On the one hand, the famous Bulankulama case (Eppawala case) has rendered the State the rightful trustee of all natural resources. And on the other hand, Sri Lanka committed to the 15 Sustainable Developmental Goals (SDGs) to be achieved by 2030, where the 15th goal is none other than the conservation of territorial eco systems, including forest networks.
In that note, the substantive legal duties and responsibilities are listed in various legislations including the FFPO. For example, in the 2009 Amendment to the Ordinance it was specifically noted that there cannot be any development activity carried out without obtaining the prior written approval, whether it is private or state led (S. 9A). Moreover, sections 3 and 6 enacted that it is not only illegal for anyone to construct a road through a National Park but is also illegal to use it given that there are restrictions of entry. Apart from the legal framework provided by the Flora and Fauna Protection Ordinance, the Forest Ordinance, National Environmental (Protection) Act, Soil Conservation Act, Felling of Trees (Control) Act, Land Development Ordinance, Crown Land Ordinance and the Land Settlement Ordinance have also provided for the substantive legal responsibilities in terms of conservation of Wilpattu. For example, to clear a forest for 12 acres and initiate 100 settlements, an Environmental Impact Assessment (EIA) is required as per the National Environmental (Protection) Act. Allegedly, no such report has been made for the current settlement program in Wilpattu. Thus, irrespective of the voluminous black and white law, the administrative arm has failed in terms of its procedural enforcement. In fact, the short sighted settlement programs have nothing but intensified the man vs. wild battle. Today, elephant corridors are mushrooming with settlements, only to signal another disaster lurking at dawn.
The underlying issue in Wilpattu, is undoubtedly the lack of a strong institutional backing in conserving natural resources entrusted to the state. Institutions, simply put are the “rules of the game”; where the problem at hand entails weak institutions resulting in the players flouting the rule of Law, which forms the very marrow of strong institutions. According to the World Justice Project[v], there are 4 basic principles facilitating the rule of Law, where the first principle clearly points at the government and its officials and agents alongside individuals and private entities being accountable for their actions under the law. Moreover, the third principle specifies that the process by which the laws are administered and enforced should be accessible, fair and efficient. It further stipulates that justice is best served timely by competent, ethical and independent representatives and neutrals that are of sufficient number and have adequate resources.
Corruption and bribery also lies in the roots of the Wilpattu predicament. Given that the institution is politicized in itself, the natural resources are compromised for personal gain which demarks the vitality in understanding the social responsibilities of administrative officials in conserving Wilpattu. The theory of the “Tragedy of the Commons” put forth by Garret Hardin is of grave importance in this regard. “Commons” refer to any shared and unregulated resource such as atmosphere, oceans, rivers, fish stocks including forest reserves. The problem emerges when each individual has an incentive to increase production (which is rational) but when everyone decides to increase production, the system falls apart. Thus, each man is locked into a system that compels him to increase his production without limit – in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all or locks everyone into a system of “fouling our own nest…”[vi] The issue of deforestation in Wilpattu and administrative slumber and corruption is largely an example of this tragedy of the commons and requires to be consciously understood.
Strong Institutions not only Conscience
Hence, the crux of the debate of how administrative authorities should conserve Wilpattu, lies in building strong institutions, which are mutually coercive or in other words, are bound by the Rule of Law. Else, if the institutional rules fail, the players of the game will invariably flout the loopholes for individual self interest as in the case of Wilpattu resulting in administrative controversy. Thus, the fundamental role that should be played by administrative officers revolve around materializing the black letter law in order to facilitate the due enforcement of the legal framework provided to conserve environmental assets such as Wilpattu.
[i] Deforestation – North of Wilpattu National Park Site Visit Report 26.12.2017 & 13.01.2017 available at http://efl.lk/v2/wp-content/uploads/2017/03/wilpattu-site-visit-report-final.pdf