Nov 28

                                                

On 9 November 2007, the Supreme Court gave its decision in a case where, in simplified terms, the right of one party to use loudspeakers was weighed against the annoyance, disturbance and harm caused to those other parties who are compelled against their will to listen to the amplified sounds which emanate from these loudspeakers.  This judgment has been greatly acclaimed.  However, some readers may not have had the opportunity of reading the entirety of the order, which contains much valuable information regarding the position of the law in respect of noise pollution, especially that caused by the inconsiderate use of loudspeakers.  In the belief that more citizens should be made acquainted with the essence of the judgment, the Citizens’ Movement for Good Governance (CIMOGG) examines some of the highlights.

One issue considered by the Court was whether it was permissible to force members of the general public to become captive listeners – in violation of their right to silence and the quiet enjoyment of property – on the grounds that a noise, which is an annoyance to the neighbourhood, is protected if it is made in the course of a religious ceremony, particularly if the Police have issued a license for the use of loudspeakers under Section 90 of the Police Ordinance of 1865.  The Court held that nobody can claim the fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers because, just as much as one has the right of speech, others have the right to listen or decline to listen.  Nobody has the right to make his voice trespass into the ears or minds of others.

As for the religious aspect, the Court has stated clearly that no religious body is entitled, by reason of claimed religious practice, to commit a public nuisance.  A police permit is not a protection against being charged for creating a public nuisance under Section 261 of the Penal Code.  The Court has indicated that there is no requirement in the teachings of any religion that loudspeakers should be used in its rituals.  Indeed, all of us know that, for a large proportion of the life of the major religions, loudspeakers did not even exist.  Happily, judging by the letters appearing in our national newspapers, many of the complaints against Muslim loudspeaker noise come from Muslims themselves and many of the complaints against Buddhist loudspeaker noise come from Buddhists.  There has not been much comment from the followers of the other religions, which may, perhaps, be taken as their acceptance of the reasonableness and fairness of the order of the Court.

Historically, there is reason to believe that the increasing use of loudspeakers in Sri Lanka for religious purposes owes its origin to a Atit-for-tat factor, which has built up over the years since the early 20th century, and that it is this factor that is at the heart of the competitive amplification of religious sounds.  It is very much to be hoped for that this rivalry will cease as a result of the Supreme Court’s judgment.  The Court also made it quite clear that Sri Lanka is a secular state and, constitutionally, protecting the environment and safeguarding public health require that there can be no exceptions to accommodate the perceived religious propensities of one group or another.  The idea must not be entertained that an annoying noise is protected if it is made in the course of a religious ceremony. No religion advocates a practice that would cause harm to an-other or damage the environment or create a health hazard.

The Court also held that a great deal of harm is done to schoolchildren, whose studies are disturbed and to sick people, whose recovery from illness is retarded.  It noted that noise can produce serious physical and psychological stress.

Even if a permit is given under Section 90 of the Police Ordinance, the noise emitted from the sound amplification equipment should not be allowed to extend beyond the precincts of the particular premises.  This would apply to outdoor musical performances, too.  A sufficient number of Police Officers should be designated and posted to the particular place of use to ensure that the conditions imposed are strictly complied with.  This stipulation, if properly implemented, should take care of the absurd demands of those who donate amplifying equipment to temples, kovils, mosques and churches and then insist that the whole neighbourhood should be made aware of their philanthropy by broadcasting not only religious material but much other rubbish at ear-splitting levels of volume.

CIMOGG strongly deplores the opportunistic efforts of certain persons who have tried to make cheap political capital out of this issue in order to gain the votes of religious noise-makers and the outdoor musical fraternity.

We believe that any remnants of ill-informed opposition to the order of the Supreme Court should be eradicated by all senior religious leaders stating categorically that the use of loudspeakers is not required for the practice of their respective religions other than to reach their congregations within the boundaries of their premises.  Musical artistes should hold their outdoor performances in open ground, away from residential areas, as is done in countries which do not tolerate any forms of public nuisance.

Nov 02

The law provides for the State to imprison or even to kill any of its citizens who commit criminal offences.  This provision, however, is subject to all the relevant official acts being done in strict accordance with the law, by duly constituted and authorised institutions and agents.  If the average citizen were to take the law into his own hands and deprive someone else of his liberty, other than in the very rare case of Acitizen’s arrest, he would be liable to be dealt with severely by these institutions and agents.  This being so, law-abiding citizens cannot understand why the State has progressively allowed a situation to develop where the following acts, inter alia, are tolerated and, in some cases, encouraged by some of those in authority and by one or more political parties -

a.      Using threats and physical force to rag freshers in the universities, often in

the most cruel, demeaning, and physically and emotionally injurious manner – even, occasionally, to the extent of driving the victim to suicide;

b.      Threatening authorised officers and teachers of the universities to comply with what a small coterie of students demand on various matters and resort-ing to terrorising their fellow students and engaging in the kidnapping and imprisonment, however temporary, of weaker students, authorised officers and teachers;

c.      Carrying out fasts unto death so as to place authorities under duress with a view to compelling them to surrender to all types of unilateral demands, generally of a highly unreasonable nature;

d.      Extensively damaging university (ie. State) and other property.

There is no doubt that the vast majority of the citizens of this country and university freshers, look upon ragging as obnoxious in the extreme and frequently dangerous.  If a group of citizens outside the universities were to inflict on anyone what the seniors at most of our universities do to new entrants, they would be liable to be imprisoned for assault, unlawful restraint, attempted murder and a host of other criminal offences.  The punishment for the other acts listed above would be of a similar level of severity.

Our Constitution and the various UN covenants signed by Sri Lanka over the years require that all citizens should be treated equally and that no one group shall be given privileged treatment.  It is, therefore, a major violation of the Constitution that the law of the land is not enforced only within university premises.  If students behave or threaten to behave in a violent and unlawful manner, the Police have an inescapable duty to intervene and restore law and order.  It is unacceptable that successive Ministers of Higher Education have interfered with the Police and given in to the lawbreakers.  They have thereby weakened the hands of the legitimate authorities and caused glaring injustices and suffering to be inflicted on thousands upon thousands of helpless students, who merely want to get on peacefully with their studies.  Unbearable pain of mind is caused to multitudes of parents who have, in most cases, made enormous sacrifices to enable their children to get into university.

We need to remind ourselves that university students, with rare exceptions, have lived off their parents or guardians from birth until they enter university.  Thereafter, they receive free education and, in many cases, financial assistance.  It is the indirect and direct taxes collected from the poorest citizens to the richest wage earners and other taxpayers of this country that pay for these privileges.  This being so, how is it that university students, including some who are attached to various religious orders, are given the right, once they have completed their first year of studies, to break the law with impunity whereas, in similar circumstances, the citizens who pay for the education of these students would be subject to the full might of the law?

It is the view of the Citizens’ Movement for Good Governance and certainly that of the vast majority of the citizens of this country that violent students should be identified and suspended, expelled or prosecuted just as any other citizen would be for the same kind of offence.  We call upon the government to declare that the law will be applied in an independent and fair manner in all sectors of our society without conferring special privileges only on university students.  We call upon all political parties to declare clearly and unequivocally that they stand for the Rule of Law and that they will support whatever government is in power to rid ourselves of the small number of criminals and psychopathic demagogues masquerading as students.

In fairness to the genuine students who have many grievances, the government must concurrently set up an independent mediation board to whom all such grievances must be referred.  In forming these bodies, students should have the right to nominate a member, all University Vice-Chancellors together a second member, the University Grants Commission (UGC) a third member and the Ministry of Higher Education a fourth member.  A fifth member, to act as the Chairman of the mediation board, should be nominated by the Constitutional Council (which must necessarily be activated, under the 17th Amendment, without further chicanery).  Decisions of these mediation boards should be binding on the Ministry, the UGC, the university authorities and the students.