The fallout from Sri Lanka’s largest recorded marine ecological disaster, which came from the Singaporean flagged MV X-Press Pearl wrecking, passed a milestone yesterday (24) with the the Supreme Court (SC) ordering non-state parties comprised of the X-Press Pearl group made up of the Singapore ship owner, operators and local agent of the vessel to pay $ 1 billion in compensation for the environmental and economic damage caused due to the fire onboard the vessel.
The landmark decision came following much controversy and delays in the domestic process of justice and accountability, with many allegations made against state entities, regulators and officials for complicity, failures to act and sabotage of effort. The manner in which the MV X-Press Pearl disaster was handled, investigated, and prosecuted has laid bare significant gaps in awareness amongst senior government decision-makers, Legislature, policy, subject matter expertise, enforcement mechanisms and regulatory processes, and has reinforced the negative view of the bureaucratic mess the Sri Lankan public service is.
While many in Sri Lanka welcome the SC’s decision, much needs to be done to fill the gaps, and establish a process to handle such maritime incidents from happening again, and to be better prepared, equipped and resilient if such a situation does occur. And this action needs to be backed by political will and push to ensure that it happens effectively, and sustained until the new policies, laws and regulations, and mechanisms need to be reviewed later on.
The Court made the findings that for the purpose of gaining entry to the Colombo Port, obtaining anchorage the master, owner, operators and local agent of the MV X-Press Pearl intentionally suppressed and withheld truthful, timely, comprehensive and accurate information regarding the situation that evolved over a period of time and prevailed at the time the vessel entered the territorial waters. And found they also violated international law with regard to the relevant reporting-related obligations and also committed the offence of cheating by suppressing the relevant information. The Court held that the handling of responses to and the management of the situation that evolved and later prevailed on board and in the vessel by the master, owner, operators and local agent of the vessel, resulting in causing marine and coastal environmental pollution.
The SC also held that then-minister in charge of the subject Dr. Nalaka Godahewa, and the Marine Environment Protection Authority (MEPA) and its then-Chairperson Dr. Dharshani Lahandapura violated fundamental human rights by failing to take appropriate action to prevent the environmental catastrophe.
Dr. Godahewa failed to constitute the MEPA Marine Environment Council and exercise supervisory duties while both the MEPA and Dr. Lahandapura failed to efficaciously respond to the situation and the latter failed to convene the MEPA's Board of Directors and assess the effectiveness of the measures taken in light of the worsening emergency. In a significant moment for accountability in Sri Lanka, the Court also held that fundamental human rights had been violated by the Attorney General (AG) as he failed to perform his statutory function of indicting the owner and the operators of the vessel for their criminal responsibility, while the decision taken by the AG to institute civil legal action against the X-Press Pearl group of companies in a Singapore court, as opposed to the High Court of Sri Lanka exercising admiralty jurisdiction, was an unreasonable, irrational and arbitrary one, not in the best interests of Sri Lanka. The SC has also directed the AG to instruct law enforcement agencies to launch a thorough investigation which may lead to criminal charges against all offenders and to identify gaps in the system.
Unfortunately, many in Sri Lanka look at the dollar amount of damages sought as the justice to the gross negligence and failure to prevent incident, and possible criminal cover-up which is implied. However, the real value of the lesson here should be us, Sri Lankans, looking in the mirror about our systems, mechanism, policies and the caliber, and quality of our officials who responded to the incident. We have to share in the blame of creating a system where so much goes wrong in such a catastrophic manner, and so much impunity is prevalent that officials are comfortable doing what they did or did not.
The ugly truth is, the MX X-Press Pearl incident could have been dealt with in a very different manner, and its impact reduced, contained or mitigated if we had the right systems, policies, regulations and people in place. We have to own up to our share of this tragedy, and learn from it, so as not to repeat it. And you can’t put a dollar value on that. We must be ready for the next maritime crisis and be better prepared.