After discussions that ended on 04. 08. 1997, the representatives of the Government and Freeport Mac Moran of USA and its affiliate IMCO Agrico initialled the final drafts of the Mineral Investment Agreement and subsidiary documents in respect of a deposit of phosphate rock at Eppawela in the Anuradhapura district. The proposed agreement granted the Company the sole and exclusive right (a) to search and explore for phosphate and other minerals in the Exploration Area (b) to conduct test or pilot operations at any location within the Contract Area (c) to develop and mine under Mining Licences any phosphate deposits (including associated minerals) found in the Exploration Area.
The petitioners being residents of Eppawela engaged in cultivation and owning lands there, one of whom was the Viharadhipati of a temple, complained of infringement of their rights under Articles 12(1), 14(1)(g) and 14(1)(h) of the Constitution by reason of the proposed agreement. They relied on the analysis of several professional experts and reports of the National Academy of Science and the National Science Foundation who were of the opinion that the proposed agreement will not only be an environmental disaster but an economic disaster.
Court ruling:
In the introduction to the proposed Mineral Investment Agreement, it is stated, "The Government seeks to advance the economic development of the people of Sri Lanka and to that end desires to encourage and promote the rational exploration and development of the phosphate mineral resources of Sri Lanka." (The emphasis is mine.)
Undoubtedly, the State has the right to exploit its own resources, pursuant, however to its own environmental and development policies. (Cf. Principle 21 of the U.N. Stockholm Declaration (1972) and Principle 2 of the U.N. Rio De Janeiro Declaration (1992). Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment. (Principle 14, Stockholm Declaration). Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. (Principle 1, Rio De Janeiro Declaration). In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. (Principle 4, Rio De Janeiro Declaration). In my view, the proposed agreement must be considered in the light of the foregoing principles. Admittedly, the principles set out in the Stockholm and Rio De Janeiro Declarations are not legally binding in the way in which an Act of our Parliament would be. It may be. It may be regarded merely as `soft law'. Nevertheless, as a Member of the United Nations, they could hardly be ignored by Sri Lanka. Moreover, they would, in my view, be binding if they have been either expressly enacted or become a part of the domestic law by adoption by the superior Courts of record and by the Supreme Court in particular, in their decisions.
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It is unnecessary for the purposes of the task in hand to enter into the matter of the alleged beneficial nature of the proposed agreement: The petitioners' case is that there is an imminent infringement of their fundamental rights guaranteed by Articles 12(1), 14(1)(g) and 14(1)(h). I have stated my reasons for upholding their complaints. The "balancing" exercise referred to by learned counsel has been already done for us and the Constitution sets out the circumstances when any derogations and restrictions are permissible. Article 15(7) of the fundamental rights declared and recognized by Articles 12 and 14 are "subject to such restrictions as may be prescribed by law", among other things, for "meeting the just requirements of the general welfare of a democratic society." In the light of the available evidence, I am not convinced that the proposed project is necessary to meet such requirements. In any event, the circumstances leading to the imminent infringements have not been, "prescribed by law" but arise out of a mere proposed contract, and therefore do not deserve to be even considered as permissible.
For the reasons set out in my judgment, I declare that an imminent infringment of the fundamental rights of the petitioners guaranteed by Articles 12(1), 14(1)(g) and 14(1)(h) has been established.
