The words of Arahat Mahinda and the wisdom of our ancient irrigation works

by Nimal Fernando

Today, in this little isle, hailed in the past as the paradise of the East, scant respect is paid to the protection of environment. Apart from widespread pollution problems, forest reserves are being denuded by illicit felling, metal rock holding mountain soil together is blasted for private profit and gem pits are extensively dug in gay abandon. Even coral reefs in the southern seas are not spared. Environment is in acute danger.

Apart from this exploitation of the nature's gifts, large scale development also takes its toll of the environment. The more recent development schemes for example like Accelerated Mahaweli or Kukuleganga were achieved not without considerable impact on the environment.

In times like these, it is opportune that professionals, as a leading section of our society, be aware of the abiding interest that international judges have, and their pronouncements, on environment protection, and of the wisdom displayed in that regard in our own ancient irrigation civilization.

It was a case before the International Court of Justice that arose out of differences between Slovakia and Hungary concerning a hydraulic project involving the construction of a barrage system over the river Danube that flows across these countries. Several differences had resulted regarding the implementation and termination of a treaty signed in 1977 on the construction and operation of the barrage system.

The Court in its verdict itself recalled its significant stress on respect for the environment, in the following words:

"The environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generation unborn" and "that vigilance and prevention are required on account of the irrecoverable character of damage to the environment and limitations inherent in the very mechanism of reparation."

The content of the references made by Justice C. G. Weeramanthry, a son of the Sri Lankan soil, as Vice President of the Court adjudicating on the above dispute, to the words spoken by Arahat Mahinda to King Devanampiyatissa in 223 BC and the wisdom displayed in the ancient irrigation civilization of Sri Lanka in the separate opinion delivered by him, ignited the author's interest in bringing its significant aspects to the attention of the professional accountant.

What follows, mostly as excerpts from that separate opinion, amply proves that the interest of development needs to be harmonized with the interests of environment for the sake of humanity. International Law, has recognized principles for such harmonization in resolution of disputes referred to it. Environmental protection is an enforceable right. Harmonizing needs

To steer a course between the needs of development and the necessity to protect the environment is a problem alike of the law of development and of the law of the environment. Both these vital and developing areas of law require, and indeed assume, the existence of a principle, which harmonizes both needs.

To hold that no such principle exists in law would recognize juxtaposition of two principles which would operate in collision, without a basis of principle for their reconciliation. Each principle cannot be given free rein, regardless of the other.

The law necessarily contains within itself the principle of reconciliation. That principle is the principle of sustainable development.

After the early formulations of the concept of development, it has been recognized that development cannot be pursued to such a point as to result in substantial damage to the environment within which it is to occur.

Therefore development can only be prosecuted in harmony with the reasonable demands of environmental protection. Whether development is sustainable by reason of its impact on the environment will, of course, be a question to be answered in the context of the particular situation involved.

It is thus the correct formulation of the right to development that right does not exist in the absolute sense, but is relative always to its tolerance by the environment. The right to development as thus refined is clearly part of modern International Law. It is compendiously referred to as sustainable development.

Environmental Law

Environmental Law is now in a formative stage. Not unlike International Law in its early stages. A wealth of past experience from a variety of cultures is available to it.

The essence of true universality of the institution is captured in the language of Article 9 of the Statute of the International Court of Justice, which requires the "Presentation of the main forms of civilization and of the principal legal systems of the world."

There are some principles of traditional legal systems that can be woven into the fabric of Modern Environmental Law.

Throughout the ages mankind has for economic and other reasons, constantly interfered with nature. The concept of reconciling the needs of development with the protection of the environment is thus not new. Millennia ago these concerns were noted and their twin demands well reconciled in a manner so meaningful as to carry a message to our age.

Sri Lanka

"I shall start with a system with which I am especially familiar, which also happens to have specifically articulated these two needs - development and environmental protection - in its ancient literature. I refer to the ancient irrigation-based civilization of Sri Lanka.

It is a system which, while recognizing the need for development and vigorously implementing schemes to this end, at the same time specifically articulated the need for environmental protection and ensured that the technology it employed paid due regard to environmental considerations.

This concern for the environment was reflected not only in its literature and its technology, but also in its legal system, for the felling of certain forests was prohibited, game sanctuaries were established, and royal edicts decreed that the natural resource of water was to be used to the last drop without any wastage," Arnold Toynbee.

Toynbee describes how hill streams were tapped and their water guided into giant storage tanks, some of them four thousand acres in extent, from which channels ran on to other larger tanks. Below each great tank and each great channel were hundreds of little tanks, each the nucleus of a village.

The concern for the environment shown by this ancient irrigation system has attracted study in a recent survey of the Social and Environmental Effects of Large Dams, which observes that among the environmentally related aspects of its irrigation systems were the "erosion control tank" which dealt with the problem of silting by being so designed as to collect deposits of silt before they entered the main water storage tanks.

Several erosion control tanks were associated with each village irrigation system. Another such environmentally related measure consisted of the "forest tanks" which were built in the jungle above the village, not for the purpose of irrigating land, but to provide water to wild animals.

This system of tanks and channels, some of them two thousand years old, constitute in their totality several multiples of the irrigation works involved in the present scheme.

They constituted development, as it was understood at the time, for they achieved in Toynbee's words, "the arduous feat of conquering the parched plains of Ceylon for agriculture". Yet they were executed with meticulous regard for environmental concerns, and showed that the concept of sustainable development was consciously practised over two millennia ago with much success.

Under this irrigation system, major rivers were dammed and reservoirs created, on a scale and in a manner reminiscent of the damming which the court saw on its inspection of the dams in this case.

This ancient concept of development was carried out on such a large scale that, apart from the major reservoirs, of which there was several dozen, between 25,000 and 30,000 minor reservoirs was fed from these reservoirs through an intricate network of canals.

The philosophy underlying this gigantic system, which for upwards of two thousand years served the needs of man and nature alike, was articulated in a famous principle laid down by an outstanding monarch "not even a little water that comes from the rain is to flow into the ocean without being made useful to man".

According to the ancient chronicles, these works were undertaken "for the benefit of the country", and "out of compassion for all living creatures". This complex of irrigation works was aimed at making the entire country a granary. They embodied the concept of development par excellence.

Just, as development was the aim of this system, it was accompanied by a systematic philosophy of conservation dating back to at least the third century, B.C. The ancient chronicles record that when the King Devanampiyatissa (247-207 B.C.) was on a hunting trip (around 223 B.C.), the Arahat Mahinda, son of the Emperor Asoka of India, preached to him a sermon on Buddhism, which converted the king. Here are excerpts from that sermon:

"O great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it."

The trustee of earth's resources

This sermon, which indeed contained the first principle of modern environmental law - the principle of trusteeship of earth resources - caused the king to start sanctuaries for wild animals - a concept which continued to be respected for over twenty centuries. The traditional legal system's protection of fauna and flora, based on this Buddhist teaching, extended well into the 18th century.

The sermon also pointed out that even birds and beasts have a right to freedom from fear. The notions of not causing harm to others and hence sic utere tuo ut alienum non-laedas was a central notion of Buddhism. It translated well into environmental attitudes.

Buddhism would extend "Alienum" in this context to future generations as well, and to other component elements of the natural order beyond man himself, for the Buddhist concept of duty had an enormously long reach.

This marked concern with environmental needs was reflected also in royal edicts, dating back to the third century B.C., which ordained that certain primeval forests should on no account be felled.

This was because adequate forest cover in the highlands was known to be crucial to the irrigation system as the mountain jungles intercepted and stored the monsoon rains. They attracted the rain which fed the river and irrigation systems of the country, and were therefore considered vital.

The task of the law is to convert such wisdom into practical terms - and the law has often lagged behind other disciplines in so doing. However enforcement of Environmental Law is gaining in Sri Lanka.