|The people get their Galle Face green back
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|Author:||Rohan2 [ Thu Dec 01, 2005 1:06 am ]|
|Post subject:||The people get their Galle Face green back|
The people get their Galle Face green back
By D. B. S. Jeyaraj
In what may very well turn out to be a landmark judgement the Supreme Court of Sri Lanka on November 28, reiterated firmly that Galle Face Green is for the people of this country and for themselves alone.
The bench comprising Chief Justice Sarath N. Silva PC and Justices N.K. Udalagama and Nimal Dissanayake ruled that the ‘Galle Face Green’ should be maintained as a public utility and that the Government should make available necessary resources sought to hand over the management and control of the 14-acre seaside promenade of Colombo, the Galle Face Green to E.A.P.
The court said that, the purported agreement, entered into between the Urban Development Authority and the EAP Limited is ultra vires and of no purpose or avail in law.
Consequent to fundamental rights violation plea being supported on February 13, 2004, leave to proceed was granted by the Supreme Court. An Interim order directed the UDA to refrain from putting into operation, any lease or agreement, to effect the use, occupation and or the management of the Galle Face Green.
The judgement also said that the UDA denied the right to information of the petitioner, The Environmental Foundation Limited, and subjected the petitioner to unequal treatment. The UDA was directed to pay the EFL, Rs. 50,000/- as costs.
Miss Ruana Rajapakse, appeared with Miss Pamoda Rajakeeya for the petitioner. Romesh de Silva PC, appeared with Sugath Caldera, for the UDA. S. Parathalingam PC, with N. R. Sivendran and S. Cooray appeared for the EAP Group. The judgement was by the Chief Justice Sarath N. Silva with Justice N. K. Udalagama and Justice N. E. Dissanayake agreeing.
Chief Justice Sarath Silva may appear controversial to some in certain aspects. But as far as environmental rights justice is concerned the CJ has a very positive and progressive outlook like for instance the decisions on mechanised sandbank mining of rivers. There are signs that Chief Justice Sarath Silva could help pioneer a new area in contemporary jurisprudence like former Indian chief Justice Bhagwathi in public interest litigation. It is up to organizations like Environmental Foundation limited to avail themselves of a benevolent Supreme Court under the present chief justice and initiate progressive litigation.
The Galle Face Green lease case was another example of a deteriorating trend in Sri Lanka where the history, culture and natural heritage of the country is sold out to a rapacious business class out to make a fast buck and nothing else. Some Entrepreneurs, politicians and bureaucrats of the country thought nothing of literally selling out the birthright of the people to crass commercialism. People of this mindset are willing to sell out or commercially exploit anything from Sigiriya to the wetlands of Muthurajawela, from the waterfalls of Upper Kotmale to the Dutch museum of Pettah. Only groups of concerned citizens stand against this monstrous phenomenon.
The success of the Galle face green is in a sense a modern version of a David versus Goliath battle. Here the latter day Davids were armed only with the slingshot of legal recourse. Thanks to a supreme court capable of appreciating the finer points of life and a chief justice who recognises the "value and not price" of issues that matter the battle was won. Crude attempts to lease the Green out commercially has been firmly thwarted. The people have got their Galle face back thanks to the Chief Justice , Supreme Court and of course the environmental foundation and its lawyers Ruana Rajapakse and Pamoda Rajkeeya.
Galle Face Green adjacent to the Indian Ocean along the Colombo coast has been a public promenade since early British colonial times. One end of it is in the Fort area and the other in Kollupitiya. The green as we know it now was much larger earlier and also the stretch of Galle Road running through it. A big swathe of land however was taken away from the Green in the sixties for commercial expansion. A lot of colonial heritage type buildings on the land side were also demolished. This happened when protection of environment and heritage had not become a major concern of public life.
Despite the shrinkage Galle Face Green remained an important part of life in Colombo. The public has had free and unimpeded access to it since before independence. It is the most popular recreation ground in Colombo and said to be one of its major ‘lungs’, affording the populace an open space in a densely built-up area. It provides fresh air and space for exercise and leisure of the young and old and is a regular venue for popular recreational activities. People from all walks and all ages of life gather there. It was a must see place for all visitors from the outstations as well as tourists.
There is always some commerce going on of a minor nature at Galle face from the gram seller to the Ice cream van and now the various food stalls. These are part and parcel of Galle Face and add to its attraction. The commercial activity however took a subsidiary role. Galle Face did not exist for commerce but for the use of the people, for their pleasure and leisure. But the current crisis was that of attempting to commercialise GFG on a mass scale. Human beings were to be reduced to "consumers" and "customers" as insignificant cogs in a mercantile machine churning out rupees and cents.
It all began in late December 2003 when the Sri Lankan press reported that the EAP Group had been granted a lease on Galle Face Green by the Urban Development Authority. According to these reports, the EAP Group was to pay the UDA Rs. Nine million as lease rental for a two year period. In exchange, all revenues hitherto received by the UDA from Galle Face Green would henceforth be paid to the EAP Group, while the UDA would continue to bear the cost of maintaining the Green. The EAP Group was reportedly planning to convert it to a carnival park, complete with ‘food courts’ and ‘hawker streets’. Planned activities were reported to include ‘theme nights’, film shows, musical shows, and fashion shows.
On the January 4, 2004, the UDA, together with the Ministry of Western Region Development, placed a half-page advertisement in several newspapers, headed ‘More Transparent Than Glass’, in which several claims regarding this projects were made. In this advertisement it was admitted that Galle Face Green is public property, to which free access has always been given to members of the public for their exercise and leisure activities. It was then that the Environmental Foundation Limited made an intervention.
While this advertisement made certain claims regarding the continuance of the traditional amenities of the Green for the benefit of the public, EFL pointed out that it was not possible to verify these claims without seeing the lease agreement. EFL also pointed out that Section 18 of the Urban Development Authority Law No. 41 of 1978 prescribes certain mandatory conditions which must be included in every lease of land by the UDA, and it was impossible to know whether such conditions have been included without seeing the lease agreement. Furthermore, the right of the UDA to deal with this property depends on there being a valid vesting order in terms of section 15 of this same law.
As a non profit-making organisation dedicated to the protection of the environment in the public interest, and which is registered with the Central Environmental Authority as a National level NGO engaged in activities in the field of environment, EFL required these documents in order to adequately discharge its monitoring duties. Accordingly, on 6th January 2004 EFL, wrote under registered cover to the UDA and to the Chairperson of the EAP Group of Companies, requesting them to provide EFL with copies of
1. The Lease Agreement entered into between the UDA and the EAP Group of companies or related entity and
2. The approved plan, if any, for the development of Galle Face Green in terms of the said lease.
The UDA was also asked to provide a copy of the order vesting Galle Face Green in the Authority. When no replies were received, EFL sent reminder letters on the January 14, 2004. Thereafter the UDA replied by letter dated 20th January, refusing to release what they termed ‘official documents’.
EFL therefore filed action in the Supreme Court, on 26th January 2004, pleading infringement of its fundamental and asking that the UDA be directed to furnish the documents requested in the letter of 6th January; and also seeking to restrain the UDA from putting into operation the lease agreement with the EAP Group of Companies or any related entity until the hearing and determination of its application.
EFL maintained ( FR 47/2004) that its fundamental rights under Articles 12 (1), 14(1)(a) and 14(1)(g) of the Constitution, relating to the right to equality before the law, to the freedom of expression including the right to information and to the freedom to carry out a lawful occupation, profession or trade, were infringed by the refusal by the UDA to release these documents. It asked that the UDA be directed to furnish EFL with copies of the order vesting Galle Face Green in the UDA, the Lease Agreement entered into between the UDA and the EAP Group of Companies or related entity and the approved plan, if any, for the development of Galle Face Green in terms of the said lease. It named the Chairperson of the EAP Group of Companies and the Hon. Attorney General as the other respondents to its application.
When the case was called on 13th February, Mr Romesh de Silva, PC, appearing for the UDA, was asked from the bench whether his clients would not release the agreement. In reply he stated that he would only release it if the petitioner gave an undertaking that it would not go to court thereafter to challenge the agreement but would agree to resolve any disputes by arbitration.
Court thereupon gave EFL leave to proceed. The respondents were granted four weeks to file objections and the petitioner a further two weeks to produce counter affidavits. Argument was fixed for 14th June 2004 and heard thereafter. An Interim Order directed the UDA to refrain from putting into operation, any lease or agreement, to effect the use, occupation and or the management of the Galle Face Green.
The end result of it all was the ruling on Nov 28th. When news of the proposed lease appeared in the press there was a public outcry against the move. Galle Face Green was truly a preserve of the people and the people resented the move. When news of EFL action came out in the press there were letters of praise from the public. Now that a victory has been achieved the people with whose lives the Green was intimately involved will cheer out a loud "hurrah!" That includes this columnist too.
The life of this writer like many middle class people of Colombo was entwined with Galle Face Green. It was at Galle Face that my mother took her walks during pregnancy; It was to Galle Face that I came often with siblings, cousins, friends and neighbours for fun and frolic . It was to Galle Face that I accompanied my grandparents for their evening walks and splashing about in the waves.. It was at Galle Face that I got "lost" as a kid and was restored to my parents through the kindness of an unknown Sinhala family. It was at Galle Face that I first flew a kite or had a pony ride. It was when driving through Galle face that my father would allow me as a child to take the wheel.
Even as I grew up the Green too grew in my life. While living in Kollupitiya one would often come to this green to run, play, cycle or simply sightsee. The green was to become in later life a place to hold hands and walk within the parameters of approved public romancing, a place to walk and sit with friends and discuss all sorts of topics and issues , a place to watch cultural shows and listen to political speeches particularly the may day ones of the past. It was also where one ran at the crack of dawn to keep fit and on some occasions to sit it out as dusk fell watching the sun set in a pensive, philosophical mood.
Had I been living in Colombo still there is no doubt the Green (more often brown) would be an integral part of life. So when relatives and friends set out for Colombo from abroad I ask them to take the children to Galle Face which they do even without my asking. When relating their experiences of Galle Face the kids seem radiantly happy. I am indeed amazed and glad that Galle face remains fascinating for even children born and raised in the West. The delights of childhood I suppose are universal.
It was with great sadness therefore that I heard of the moves to lease it out to big business. I am jubilant now that those moves have been firmly thwarted. May Galle Face Green remain for ever and ever. May it always belong to the people.
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