|
|
|
|
People’s Tool for the Management of Resources (Protection of human rights, environment and promotion of alternate dispute resolution) Novel role for law schools I may be pardoned for this paper seeks to deviate from any degree of formalism in order to pave way for easy assimilation. People don’t seem to love their neighbors any more. They no longer extend loving compassion to all living beings, while the God or the Gods do not seem to be answering our prayers for relief. May be He is beset with his own problems like the modern, but corrupt governments. Ministers and members of National State Assemblies seem to be busy making laws or rather devising means of gobbling up more resources for personal gain or how to go unpunished for misuse of public funds, or devising a legal framework for letting in a multi national corporation to share the exploitable resources while the subsistence farmers mourn over drying crops due to shortage of water and fertilizer while others else where are simply trying to find water for drinking or food for the starving or medicine for the sick. Not to mention the poor relief supplies that is being misappropriated on a competitive basis or the destruction of the rain forests or other earth resources else where in a bid to make quick bucks, while law enforcement authorities at public expense connive at such crimes. Oh! Currently the law is not the tool of the people to ensure proper resource management, but simply the weapon of ruthless ruler to eliminate all dissent and achieve his ends with impunity. In other words it is the weapon used for exploitation of resources. Law has surely failed to empower the people and thereby failed to cope with and contain such problems as those relating to environment and the culprits go unpunished. Why? If the law has failed to provide solutions where have we failed? What are the meaning and the purpose of law? Whose duty is it to enforce the law? The police or government or other bureaucratic machinery? Why not examine us. Turn to our selves. Have we not created the problems for ourselves? We have had unenforceable legal concepts and theories, which are not development oriented or which are not targeted to ensure resource management for the common good. In addition to that, have we not entrusted the law enforcements to culprits? Then go ahead; take it back from the culprits. Let us not trust them ever again. Don't rely on the culprits. If you do, what will happen? They will perpetuate themselves and achieve their ends that are mainly exploitation of resources, and perpetuation in political power and simply quick bucks by gobbling up resources. Where do we find the best examples, Sri Lanka. We may not be able to accomplish this in the near future unless we now undertake social mobilization programs aimed at explaining the current disillusionment that threaten the law and it’s institutions. Process of
alienation
Surely the process of alienation of law and legal institutions is as old as the first foreign invasions in this region. Every thing indigenous was replaced by the systems of the invaders. Lying at the root of these problems is the alienation of the law and the legal institutions that existed at that time with foreign models.1 We see, since then, the beginning of a process of alienation of law and its enforcement, which often creates chaos in resource utilization of a country. The necessary sustenance to a developing community has thus been lost due to our negligence. Against our wishes the duty of law enforcement has been entrusted first to foreigners then to the uninitiated, inexperienced, uneducated, unenlightened and at last to the corrupt and so on.2 Function and the purpose of the law; Resource ManagementResource management is not a function or purpose of law according to the positivist school of thought. Prior to foreign domination Sri Lanka provides a good example of how law was used as a tool of the common man to get his things done in sustainable ways. That was when indigenous dispute resolution systems had its heyday, local people managing local resources. The old irrigation system of this country provides a very good example of ecosystem management. This system has earned the commendation of most renowned experts. Dispute resolution systemIn matters of environment or any other dispute, its resolution or adjudication assumes the most important function in any civilized society. Hinduism and Buddhism together with Islamic laws provide a very fine system of informal dispute resolution. Although we call it informal it is not correct to say so, as such terms again coming from western terminology. But these systems have now been replaced by laws introduced by the colonial powers. India, the Alma mater 3500 years ago India was Hindustan, or the place of Hindus. But now look at India. It is very much a cosmopolitan state now. Thanks to Hindus, Moslems, Buddhists, and believers of other religions. More than 3500 years ago India was a trendsetter to the world. India was in fact the lawgiver to the rest of the world. India was the center for transfer of culture. India was the seat of learning and the repository of law and justice. The Lichchavis of India practiced rudiments of modern democracy.3 Basic idea of the rule of law was first introduced to the world by last words of Buddha. Rudiments of Labour law and relations are to be found in Singalowada Sutta preached by the Buddha. Ramayana spells out the attributes of a good king.4 Those are rudiments of good governance formulated very much prior to Magna Carta, or the Bill of Rights or the 12 tables. World would have been poorer without India's contribution. India therefore has vast potential to be pioneering and exemplary in introducing resource management through law schools of this region and eventually the whole world. A new liberation struggle
India is undoubtedly the home for liberation movements and revolutions. Siddhartha Goutama, the Buddha in 528 BC, set the most magnificent liberation movement and revolution in motion and taught the world how to achieve a Dharmistha or a just society, without the sacrificing the resources of the future generations while maintaining a perfect balance, harmony and tolerance with major and minor religious groups.5 But why are we suffering in silence now? Suffering in silence has come to be the norm. But surely we still have the resources. Nevertheless, our problem is that we have been trying to manage our resources with alien laws. Thus we currently experience in this region a huge problem of resource management. We will never be managing our resource and would surely continue to live below dignity until we are able to launch this revolution through the law schools, the legal profession, and the judiciary. The enormous potential of science and technology are presently remaining untapped due to our failure to tap such resources. This just one example only.6 What is poverty?
Our inability to manage our resources is what is known as our poverty. In this respect it would be pernicious to be guided by economic criteria alone. How we can make use of indigenous legal systems in combination with codified laws for the management of our resources should be the preoccupation of the law schools in this region. This will be a novel challenge for the law schools in the new millennium. But now what is
our plight?
Suffering in silence has come to stay, as the laws most
often do not accomplish this task of resource management. The inability to
manage our resources for our sustainable development is our plight today. We
find it extremely difficult to take our law enforcement authorities out of the
positivist mould. All our judges, lawyers, other enforcement officers are
thinking and working according to the positivist dictates. It is high time we
deviate ourselves from this vicious path by adopting a theory of law to suit our
needs. The new theory of law can
surely be founded upon the vast experience of celebrated resource managers of
the past and the present. Thus the new theory of law may be defined as follows: Three
fold resource management: the function and purpose of law: the new legal theory. This may also be called the Development jurisprudence for free Asia. India and Indian law schools together with other countries in the region have the capacity to promote, develop, and implement the system of resource management proposed herein. “Regulation of human behaviour for resource management and sustainable development. Resources are limited in view of the greed of man. All living beings are entitled to a fair share of the resources on this earth. In the determination of the fair share of the resources the governing policy would be Need V. Greed.” India has already gone a long way in the direction of social action litigation or the public interest litigation. It does not have sufficient thrust due to the positivist mould within which it is being invoked. Resource management when developed as a legal theory or development jurisprudence it will give a new dimension to capacity building of all institutions whether traditional or modern. Some of the modern modes of dispute resolution may be incorporated into the traditional systems and vice versa. Village administration and water management in ancient Sri Lanka provide a fine example, which then was the management of an ecosystem. Ecosystem management was never incorporated into the Irrigation Act of Sri Lanka. Crop failure and environmental damage to ecosystem and finally terrorism are the results of such failure.8 New Challenge
A great new challenge confronting all of us in the developing world today is whether the law can be used as a people's tool as opposed to being a tool in the hands of a few or of “the creamy layer”, to use the words of His Lordship Justice Krishna Iyyar, the giant in the cause of public law enforcement. I would rather go a step forward and unhesitatingly label "the creamy layer" as the greedy few, naturally drawing inspirations from another role model, and undoubtedly a world leader, and father of India, Mahatma Gandhi, who said "the resources in the world are enough for the need of man but not enough for the greed of man." What is happening today in the name of resource management is simply a well designed gobbling up of all forms of resources particularly those in the developing world or the third world (these terms are misleading, for several reasons, as the English word 'development" was insufficient to describe the all faceted progress*) by local or foreign politicians, conglomerates of multi national Corporations and sometimes by peace traders. Thus we see that Gandhian principle of resource management makes a distinction between the need and the greed. This, if adopted globally would be the best policy of resource management even internationally. The laws are required here to distinguish the need from the greed or vice versa. Commoditization of resourcesThe commoditization of resources is not confined to the developing world alone. Not surprisingly the developed world has been for many years the severe victims of such exercises than countries in this region. Our pace of commoditization is undoubtedly slower than that of the so-called developed world where it has been really fast. The reason? We have strong cultural aversions to commoditization in contrast to the so-called developed world. A good example is provided by the system of resource management by protection bio diversity in terms of the Hindu concept of Avhimsa and the Buddhist concepts of compassion to all living beings and light modes of living on earth. This is very much prior to western scientific discoveries, which emphasize the need to protect and maintain bio diversity. Thus it must be abundantly clear that the situation of developed countries is worse than those in this region. Resource management according to law and justice is unequivocally a grave concern for every one of us on earth. That is the difference between life and death, peace and terrorism, good governance and corrupt governance. Taking
the law and the legal institutions out of the positivist enclave Legal positivism has been one of the greatest obstacles in
achieving socio economic development by proper resource management. The duty of
entrusting the management of resources to the community is alien to the
positivist school of thought. The high degree of formalism and various other
procedural technicalities, which inherently form part of formalistic regimes,
make the access to law a difficult task for the uninitiated as well as for the
so-called poor. It is therefore difficult to develop the law as a people’s
tool so long as we are within a positivist and formalistic mould. We, in South Asia, have been at the receiving end of
formalistic regimes perpetually hindering the resource management for
sustainable development. In our
socio economic context in particular and in any other social context in general
it is extremely difficult to implement the laws as a result of the subjugation
of the indigenous systems by foreign systems. Representative democracy is one
such. What we have enjoyed in our climes from times immemorial was a mixture of
a participatory process of governance in a benevolent monarchial system, which
at the same time provided for participatory development dialogue as evidenced by
the system of Gamsabawa in Sri Lanka. That system has now been subverted by a
Westminster model of democracy, which is very much open to corruption. The very
mechanisms intended to contain corruption are in turn subject to the same degree
of corruption. The mass support for any foreign system is sought to be
mustered by large-scale show of support for the cause, which is often espoused
by a political party or at the instance of the ruling elitist. This cannot be
done at grassroots level. It has always to be achieved by enormous expense,
which will result in huge waste of all forms of resources. Sri Lanka provides
the whole world some expensive examples of such large-scale resource
exploitation directly responsible for the so-called ethnic war and the resulting
poverty, which is now referred to as terrorism. The LawIt
is not an easy task to attempt a definition of law, which could to fit into
various purposes to which the laws are being used. There is an array definitions
put forward by many a jurist. But
most of them do not fit into the modern thinking or the requirements. What is
really required is not a definition of law. But what it could do for the
betterment of life of man on earth. Prof.
Weeramantry in his pioneering work on a theme of this nature has this to say of
the law. "The life of man on
would be a continuing disaster were it unregulated. The principal
means of this regulation is by law." At
this stage we all concede without reservation that the life of man should
necessarily be regulated. This definition however does not exclude non-coercive
or less coercive modes of regulation by other means such as religion. Thus it is
admitted that the regulation of human behavior is the primary purpose of all
laws, whether religious or secular. If we
go a little further in pursuit of further knowledge in this respect we may
validly pose the question as to why should the man be regulated in the conduct
of his affairs? What is meant by
the conduct of his affairs is of particular importance. The man is avaricious by
nature and consequently in all his pursuits he tends to forget about the others
or their existence. In religious terms he forgets the fact that he has a
neighbor in need of his love or an environment at his disposal to be protected. The
craving of man has been the eternal problem that we have witnessed as something
that is difficult to change or control if not to annihilate. It has therefore
survived all religious teachings as well as extremes of material wealth.
Nevertheless the materials that he amasses or utilizes in the pursuits of his
desires or goals are invariably limited, as it has to come from the natural
environment just like the men who make the finish products. The finished product
itself is also limited in all respects. The finished product is the built
resource, which is a combination of the human and the natural resources. It
is easy to see how the man has to compromise in the matter of satisfying his
desires or wants from the limited resources of the natural, social, and built
environment. Natural
environment. This is what is referred to as the resources that we have inherited in this world without the conscious effort of any body, such as the sun, air, wind, rain, earth, water, sea, rain, forests and so on. No individual man can claim responsibility for creating any of them. They constitute the common wealth of the humans. We should have sufficient intelligence to understand why certain religions attribute the ownership of such natural phenomena to God, the omnipotent creator. The humans, overwhelmed by craving, would not bother to maintain the nature as it is unless he is aware that there is a punishment for misappropriating the common property. The Air we breathe This is the very first resource of the natural environment which the newborn baby makes use of in order to sustain life. Hence we see the importance of maintaining unpolluted air. Not only is it necessary for humans but also all vegetation, livestock, sea etc are dependant on unpolluted air. It is thus easy to see how our first rights and duties are created by and associated with our birth and the first breath. Air seems to be the only (a commoditized natural resource) natural resource, which we are not so far directly asked to pay for in the market-oriented societies. Nevertheless most of us are oblivious of the fact that we already pay a huge price in the following manner for the air we breathe.
Does it not suggest a huge air bill although we don't make a specific payment? In fact the irony is that those who are causing the enormous pollution to the air very often go unpunished for the heinous crime they commit. There is not much of a difference between slow killing and instant killing. All religions too forbid killing in any form. Do we not have laws to guard against this? It is against the Dharma of Avhimsa to condone even slow killing by permitting air pollution. The discussion above should have driven home the fact that all that we falsely see as unlimited resources in the natural environment are alarmingly limited vis-à-vis our greed. And the common feeling that there is no body to nab the culprit is another misconception as there are provisions under various statues such as the Motor traffic Act and the National environmental Act, among others, to fine and detain belching vehicles, garbage burning and polluting industries. But what is lacking in all these law is the element of active community participation, which is an aspect of participatory development. We can now see how the law seeks to regulate the behaviour of man in relation to satisfying his desires or greed from the resources in the natural environment. Early jurists visualizing this situation classified the common property as follows; (Res extra commercium- this means property in respect of which no commercial transactions were allowed) into four major categories,
The categories iv. and v. are of great relevance to the modern law while the first two categories were of particular importance to the Roman Dutch Law. But the man is the most aggressive of all creatures in the process of satisfying his needs. The primitive man made minimal use of these resources while the modern man is set to appropriate for himself a sizable portion of the natural environment with impunity. Multi-national corporations and their supporting countries are good examples of this. When
the primitive man lived in the jungle or a cage it was a very simple life for
himself as well as for others. It did not become necessary to draw lines between
land and the buildings as done nowadays. He was not concerned with making any
thing bigger or smaller. However as the civilization grew far and wide people
became more conscious of appropriating or adapting or amassing things from the
natural environment to suit his needs while tending to neglect the needs of
others. The most vivid reason is that with new technology the man has become a
lone animal looking for a prey irrespective of the interests of his fellow
beings. Man in primitive societies was more concerned about the groups and
collective rights and duties as he was part of the group. Need V. GreedAt this juncture the man started thinking in terms of his own needs, and then those of his immediate family, the extended family, his town, or the village and then the country. Once most of his needs were satisfied he did not pose there. It was thereafter necessary to go in search of luxuries. This is known as self-indulgence. The others are not ready to watch this and allow this to happen. They all then set standards of behavior in order to regulate the affairs of man in terms of the limited resources. The man in this respect has to be distinguished from the other members of the animal kingdom. Man and man alone have this trait of collecting or amassing of wealth. The greatest philosopher of the 19th century Mahatma Gandhi, who came forward giving up his possessions in defence of the world to be left to the posterity, had this to say of those engaged in amassing wealth: "The world has got enough resources for the need of man but not for the greed of man." Rights and dutiesWe
have already seen that any given law is all about rights and duties. All major
treatises on various branches of international law describe the nature, scope
and the extent of rights and duties. It is normal for the man to avoid the
performance of his duty or infringe another's right for various excuses. This
type of situation is referred to as a dispute and calls for adjudication or
settlement. The
rights and duties in this respect may be classified as public and personal. Where an important piece of
legislation which has a great impact on society entrusts the administration of a
statute to a State officer or an authority the enforcement of its provisions may
naturally end up there. This marks the difference between law in the book and
the practice. Very often a statute does not incorporate a provision whereby a
member of the public is expressly permitted to take measures against the
material omissions or inaction of the competent authority. Two excellent examples are
provided by the Urban Development Authority Act and the Central Environmental
Authority Act of Sri Lanka. These two Acts provide for sweeping changes intended
for socio economic development and protection of the environment. But for the
last two decades of its operation it has remained simply on the statute book
just like many other pieces of legislation. The potential beneficiaries under
the two Acts are the general public of Sri Lanka. What can they do? Can they go
before the Court of Appeal and ask for an order of mandamus to compel the
performance of duties generally entrusted to the said Authorities. A general
omission of duty does not come within the purview of mandamus. The absence of
specific provisions not only prevents any public spirited person from seeking
relief, but the formal nature of the litigation which very often requires the
services of a formidable lawyer, the possibility of personal vengeance at the
instance of the affected officers of the state authority are all negative
aspects of the problem. Whether he loses or wins the battle he may be at the
mercy of the officers concerned. This is another obstacle in the way of making
the law the peoples’ tool for resource management. This last mentioned dilemma is due
to the wrongful perception among all sections of Asian society that if one seeks
relief in a legal way even as against the State that amounts to a personal
threat to officers concerned. This perception can sometimes be justified as
officers of that institution may have necessitated such litigation by reason of
neglect of their duty. The
author is of the strong view that where a public duty in terms of a certain
written law is disobeyed by the person to whom it is entrusted the members of
the public interested therein should expressly be entitled to seek its
enforcement in the courts of first instance. At the same time the person or a
body of persons who neglect such a statutory duty should incur criminal
liability at the instance of the members of the public.
It is well understood that the Attorney General on account of his
pedigree is not fit to be entrusted with this job. This is just one example
provided by the formalistic legal regimes. For half a century we have failed to
manage our resources through the state machinery. This clearly spells the
growing disillusionment with positivist legal concepts and institutions. We are
therefore at a crucial juncture with regard to our future direction. We need to
liberate ourselves from the crutches of seen and unseen slavery. Positivist
legal culture is one such bondage. We need to launch a revolution, naturally
drawing inspirations from our great revolutionaries of the past in order empower
ourselves and undertake the task of resource management. Novel
duty of Law Schools
This
is a task that can be entrusted to our law schools. This can only be entrusted
to law schools if and only if we develop and promote the new legal theory
aforesaid. Law enforcement is the most important aspect of the resource
management dilemma. This has been explained previously. Development of new curriculumThe new curriculum would be targeted for management of three
fold resources aforesaid by introducing preventive and curative justice. The
existing positivist system is more redress oriented than prevention oriented.
Traditional knowledge, informal modes of dispute resolution, positive feature of
the existing laws and some principles of international law may be incorporated
into the new curriculum. 7 In this region development did not mean any short term or
profit-oriented thing by or at the instance of the king or the monarch. It
embraced the whole gamut of activities, which would keep the future generations
too nurtured by the resources available to the present generation. The concept
of Avhimsa (non-violence) in Hinduism and Metta, (compassion) Karuna, (loving
kindness) and Upekkha (non-adherence) in Buddhism are living examples of this
concept, which has been the all-pervading ideology. In this region we have never
been poor until the concept of poverty came to be defined by western standards.
Now we find ourselves poor because we cannot match the standards they have set.
So all of us are trying to be rich according to their standards. This menace
should stop for otherwise we shall be in danger of being dragged on and off to
match the vacillating standards set by people who are spiritually extremely
poor. Sustainable development as a legal concept was never part of positivist
jurisprudence. Now this can be achieved by adopting the new development
jurisprudence.
|