by (Dr) Jayampathy Wickramaratne, President’s Counsel
Noice pollution laws in other countries

The handful of tourists who enjoy loud noise come from countries where laws on noise pollution are very strict. In their home countries, can they make noise that affects others even during the daytime?

In Re Noise Pollution, Chief Justice Lahoti referred to laws on noise pollution in several other jurisdictions.

In the United Kingdom, the Noise Abatement Act provides that loudspeakers should not be operated between 9.00 p.m. and 8.00 a.m. for any purpose and at any other time for advertisement, entertainment, trade, or business. The Noise Act of 1996 makes provision about noise emitted from dwellings at night, about the forfeiture and confiscation of equipment used to make noise unlawfully, and for connected purposes.

In the United States, Congress has declared in the Public Health and Welfare Act that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardises their health or welfare. For regulating noise caused by announcements through the use of loudspeakers and noise emitted during the night time operation of bars and restaurants, local governments shall take measures necessary to protect the living environment, including restrictions on operating hours, in accordance with the local physical and social conditions.

In China, the Law on Prevention and Control of Pollution from Environmental Noise has been enacted to prevent and control environmental noise pollution, protect and improve the living environment, ensure human health, and promote economic and social development. For purposes of this law, “environmental noise” means sound that is emitted during the course of industrial production, construction, transportation, and social activities and that impairs the living environment of the neighbourhood.

The Indian Supreme Court, in Church of God (Full Gospel) in , held that the Court may issue directions regarding controlling noise pollution that was a direct result of and was connected with religious activities. Justice Shah stated what is well to remember: “Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums.

In our view, in a civilised society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted. It should not be forgotten that young babies in the neighbourhood are also entitled to enjoy their natural right [to sleep] in a peaceful atmosphere. A student preparing for his examination is entitled to concentrate on his studies without [him] being any unnecessary [disturbed] by the neighbours.

Similarly, the old and the infirm are entitled to enjoy reasonable quietness during their leisure hours without there being any nuisance of noise pollution. Aged, sick, people afflicted with psychic disturbances as well as children up to 6 years of age are considered to be very sensitive to noise. Their rights are also required to be honoured.”

Indian courts have continued the trend set by Judges such as Chief Justice Lohati and Justice Shah.

In the 2020 case of Afzal Ansari v State of U.P., the issues that arose were whether prohibiting or restricting the recitation of azan (call to prayer) through sound-amplifying devices during the Covid-19 crisis was violative of Article 25 (Freedom of conscience and free profession, practice and propagation of religion) and whether such recitals violate order or guidelines issued by the state. The Allahabad High Court held: “[W]e are of the considered opinion that azan can be recited by muezzin from the minarets of the mosques by human voice without using any amplifying device and the administration is directed not to cause hindrance in the same on the pretext of the guidelines to contain the pandemic Covid19, but its recitation through loudspeakers or other sound-amplifying devices cannot be said to be an integral part of the religion.”

Last month, in Jaago Nehru Nagar Residents Welfare Association v. Commissioner of Police, the Bombay High Court emphasised that using loudspeakers for prayers or religious discourses was not an essential part of any religion. It clarified that such practices were not protected under Article 25 of the Constitution, which guarantees the freedom to practice religion. The Court stressed that noise pollution posed significant health hazards. Allowing the unrestricted use of loudspeakers would infringe on the rights of residents living nearby, the High Court held, thus prioritising public interest and health over the claimed religious rights associated with loudspeaker use.

Justice Samayawardhena Committee report

In 2023, the Minister of Justice appointed a committee chaired by Justice Mahinda Samayawardhena, Judge of the Supreme Court, to review laws and regulations related to noise pollution in Sri Lanka to bring them on par with global standard setting. Members included Parinda Ranasinghe, the present Attorney-General, Director General of the Central Environmental Authority and the Deputy Inspector General of Police (Legal). The committee submitted its report in March 2024. It reviewed existing laws and regulations and draft regulations on noise emission prepared by the Ministry of Environment. The committee also referred to global standards and internationally accepted best practices. The committee’s recommendations cover varied forms of noise emission.

The committee stated that over the past decade, there has been a significant surge in environmental concerns, particularly regarding the escalating crises impacting our climate and, as a result, the state of human life itself. The World Health Organization states that excessive noise endangers human health by increasing the risk of diseases such as ischemic heart disease, hypertension, sleep disturbance, hearing impairment, tinnitus, cognitive impairment, adverse birth outcomes and mental health problems. According to the National Geographic Society, noise pollution affects animals’ ability to survive as they use sound to navigate, find food, attract mates, and avoid predators.

The committee was of the view that noise pollution laws and regulations in the country should be on par with international standards. The most important recommendation of the Justice Samayawardhena Committee relevant to our discussion is that noise pollution in Sri Lanka should primarily be regulated in accordance with the directions issued by the Supreme Court in Ashik v. Bandula.

Police inaction

One of the main reasons for the continuing noise pollution via loudspeakers is Police inactions. The Facebook page of the National Coalition Against Noise Pollution is replete with posts giving instances of inaction by the Police. Interactions with Police personnel show that they have not been adequately briefed on the judgment of the Supreme Court and their own IGP’s circulars. A typical response when a complaint is made is that the organisers of the event causing noise would be asked to ‘reduce’ the sound.

That the judgment and the circulars require that noise emitted should not extend beyond the precincts of the particular premises is not known to almost all officers. Police are extremely reluctant to seize equipment and report the matter to a court as required by the Supreme Court judgment when a permit holder does not heed a warning not to violate the conditions of a loudspeaker permit.

The Weligama Police need to be congratulated for taking action against the disco owners who violated the conditions of the permit. It is interesting to note that Ashik v. Bandula also resulted from the refusal of the Assistant Superintendent of Police, Weligama Police, himself a Muslim as the Supreme Court observed, to issue a loudspeaker permit to a mosque due to complaints that there was excessive noise from mosques.

Soon after the Weligama incident, Acting IGP Priyantha Weerasuriya instructed the Kiribathgoda Police to order the Kiribathgoda United Traders Association to desist from using loudspeakers to advertise their businesses, causing inconvenience to residents of the area. This followed complaints by the Viharadhipathi of the local temple and residents. One hopes that these instances are not isolated and that the Police will follow the Supreme Court judgment and the IGP’s circulars to the letter.

Victims of noise pollution and everyone concerned to ensure a clean environment will surely hope that saner counsel will prevail and that the government will not attempt to change the status quo, which is based on a Supreme Court judgment that has been widely welcomed and is in consonance with international best practices. Any such change will violate the fundamental rights to equality and equal protection of the law guaranteed by Article 12(1) of the Constitution and the freedom from cruel, inhuman or degrading treatment guaranteed by Article 11.

The presence of Rohingya refugees in Sri Lanka has prompted sections in the South of the country to raise some concerns in connection with it but The Human Rights Commission of Sri Lanka’s (THRCSL) recent report on the issue, if received and read in a spirit of reconciliation and humanity, should put their minds at ease.

To be sure, there is considerable substance in the objections and worries of the relevant Southern quarters but the majority of the refugees in question need to be seen as victims of complex political circumstances in their countries of origin over which they do not have any control.

Those Rohingyas who are now literally adrift in the seas of South Asia and beyond, are strictly speaking stateless. Most of them are escaping endemic political turmoil and runaway lawlessness in the Rakhine state of Mynamar and the spillover of such tensions into the Myanmar-Bangladesh border and beyond.

There has been playing out in the Rakhine region over the decades a Rohingya armed struggle for autonomy but the majority of the Rohingyas are not in any way supportive of this armed struggle which is an expression of the Rohingyas’ awareness of their separate identity as a community, although they possess a wider Muslim identity as well.

But there has been an influx of Rohingya refugees to several neighbouring countries from this conflict, including very significantly Bangladesh, and this has been triggering concerns among the wider publics in those states which are compelled to manage the Rohingya refugee presence amid economic pressures of their own.

The problems arising from the Rohingya refugee presence have been compounded by the rise of Islamic militancy in South Asia and the tendency among some of these militant groups to exploit this presence for the propagation of their causes.

However, this does not take away from the fact that the majority of Rohingyas are helpless victims of circumstance. They are caught up in the metaphorical ‘exchange of fire’ between mutually suspicious states that are compelled to contend with issues growing out of the rise of Islamic militancy. But for the majority of Rohingyas such endemic conflicts among states translate into displacement, statelessness and growing powerlessness.

For an enlightened understanding of what states need to do in connection with the refugee crisis and connected questions it would be necessary to read the THRCSL report above mentioned. States that are members of the UN family are obliged to ratify and implement a number of conventions related to refugees and the THRCSL mentions some of these. They are: The 1951 Convention on Refugees; 1954 Convention Relating to the Status of Stateless Persons; 1961 Convention on the Reduction of the Stateless and the Rights of Refugees and Stateless Persons within Sri Lanka.

If Sri Lanka and other countries facing a refugee influx have not adopted these laws they would need to do so without further delay if they are opting to remain within the UN fold. In this connection, the Universal Declaration of Human Rights should be seen to be of fundamental importance. The Declaration is the fountainhead, so to speak, of international humanitarian law and UN members states have no choice but to adhere to it.

Contentious issues are likely to grow out of the implementation part of the mentioned conventions but it is best that signatory states take up these matters with the relevant key agencies of the UN rather than grouch over matters that surface from their inalienable obligations towards the stateless and homeless.

It was encouraging to note a Southern group in Sri Lanka mentioning that the Lankan government should draw the attention of the UNHRC to the fact that the state is not a signatory to some of the mentioned refugee conventions. This is the way to go. A dialogue process with the UNHRC, which does not happen to be very popular in Sri Lanka, on such issues would perhaps throw up fresh insights on Sri Lanka’s obligations on refugee issues that may then convince the state to sign and ratify the conventions concerned.

There needs to be a flourishing of such positive approaches to meeting Sri Lanka’s obligations as a UN member state. The present most unhappy existence of being a UN member state and not implementing attendant obligations needs to end if Sri Lanka is not to be accused of ‘double speak’ and ‘double think’.

Meanwhile, identity politics and connected problems are bound to remain in South Asia and bedevil all efforts by states of the region to see eye-to-eye on issues such as the stateless. The yawning ‘democratic deficit’ in South Asia continues to be a formidable challenge.

But all efforts should be made to reduce this deficit through collaborative efforts among the concerned states. This is so because increasing democratization of states remains the most effective means of making identity politics irrelevant and the latter is a primary cause for the break-up of states, which process throws-up troubling consequences, such as statelessness and refugees.

Fresh initiatives need to be undertaken by the ‘South Asian Eight’ to end the continuing ‘Cold War’-type situation between India and Pakistan, since they hold the key to re-activating SAARC and making it workable once again. It ought to be plain to see that it is only the SAARC spirit that could help in ushering a degree of solidarity in South Asia which could go some distance in resolving issues growing out of nation-breaking.

Once again, South-South cooperation should be seen as a compelling necessity. If vital sections of the South come to this realization and recognize the need for such intra-regional cooperation, the coming back to power of Donald Trump could be considered as having yielded some good, though in a highly negative way. Because Trump has made it all too plain that he would not be considering it obligatory on the part of the US to help ease the lot of the South any more.

The South would have no choice but to fall back on strategies of self-reliance. No doubt, this situation would accrue to the benefit of the world’s powerless. Self-reliance is the best option and the only key to unravelling external shackles that bind the South to the North.

Meanwhile, those sections of Southern Sri Lanka that are tending to cheer Trump on need to put the brakes on any such idle distractions. The message that Trump has for the world is one of division and strife. By rolling back almost all the progressive ventures that have come out of Washington over the years, Trump is plunging the world into further ‘disorder’. The international community needs to brace for stepped-up nation-breaking.

by Tharindu Muthukumarana
tharinduele@gmail.com

(Author of the award-winning book “The Life of Last Proboscideans: Elephants”)

“We cannot solve our problems with the same thinking we used when we created them”.

-Albert Einstein

When we examine the records of funds spent in the years beforehand to mitigate human-elephant conflict (HEC), it is evident that the expenditure has been growing. For example, in 2010, USD $505,001 was spent, but in 2018, USD $1,068,021 was spent. So, this shows that expenditure had been over double within a period of less than one decade. But in the same way, the HEC had always been rising throughout the years. So, what went wrong? The answer is that the funds were expended mostly on ineffective mitigating strategies rather than effective mitigating approaches. Henceforth, let’s look at a glimpse of what are the non-effective methods and effective methods.

Non-effective methods Translocation

Elephant translocation involves capturing elephants from one place and moving them to a safer environment. Sri Lanka had done this for many decades. One of the earliest translocations occurred in 1979, when 10 elephants were relocated from Deduru Oya to Wilpattu National Park (NP). So, it was a new experience for the Department of Wildlife Conservation (DWC), and they even had to get a foreign veterinary surgeon named Dr. Ian Hoffmeyr from Etosha NP in Namibia to sedate the elephants.

Unfortunately, radio tracking collars were not put on those elephants to monitor updates of those elephants. So, ultimately what happened was that those translocated elephants’ status never got documented. However, in recent translocations, the GPS tracking collars were fixed on them and have given accurate updates on their whereabouts. According to those data, 3 conclusions are probable: (i) The translocated elephant got killed in the new home. (ii) Left the new home and returned to the initial home. (iii) created conflict with neighbouring villagers in the new home.

As for example, in 2007, a tusker named Ravana that was crop raiding in Anuradhapura got translocated to Udawalawe NP. He then got into conflict with neighbouring villages of Handapanagala, Aluthwewa, and Buttala. Due to this, Ravana got shot in the leg, and as a result, Ravana got re-translocated to Lunugamvehera NP. Again, Ravana raided crops on leased land in the park, and a few months later, Ravana got shot in the jaw and had an agonising death after suffering for a few days.

Another tragic event happened when a young bull elephant named Homey that frequently foraged at a garbage dump in Hambantota got translocated to Yala NP Block II, which took a journey of 75 km. Within a few days, Homey was back at the garbage dump. Astonishingly, when data from the collar was downloaded, it was shown that the route Homey took to return contrasted with the route Homey was taken. For the second time, Homey was translocated to Udawalawe NP, but as time passed by, he created conflict with neighbouring villages. Subsequently, Homey left the park and again returned to the garbage dump. For the third time, Homey got translocated to Maduruoya NP, almost 300 km away from Hambantota. At times, Homey tried to come back to the garbage dump but was unsuccessful due to compact human settlements. So, he continued to stay at Maduruoya but started to create conflict with neighbouring villages. This resulted in him getting shot frequently. One day he got shot in the head and died in a paddy field.

Elephant Drives

Elephant drives involve chasing elephants from one area to another area, and for this, firecrackers or thunder flashes would be used. This procedure can take days to get completed. These drives had happened as early as the 1970s, and the latest to be 2024. From a scientific perspective, the decades of elephant drives that have been done are one of the key reasons for Sri Lanka having the highest level of HEC in the world. Records have clearly shown that after an elephant drive, some or all driven elephants returned. Also, in every location where elephant drives took place, HEC still persists. In many cases, the problem-causing males don’t get driven because those males usually avoid it. Instead, non-problem-causing female elephants get driven. In such incidents, after those driven elephants got enclosed in a restricted home range, those elephants did face starvation and malnourishment that eventually made them die. For this, there are examples coming from Lunugamvehera NP and Yala NP.

Removing the problem elephants

Removing problem elephants could be done in two ways: one is domestication and the other is culling. Such acts can enhance the risk for elephants’ extinction. Problem elephants are usually male elephants, and elephants that raid crops are risk takers. Emerging research shows that risk-taking behaviour contributes highly to their reproductive success. So, if such elephants are removed from the gene pool, it weakens the elephant population.

In modern days, there is a popular misconception that the elephant population has risen, and it is immoderate. In fact, scientifically, there is no way to explain whether the elephant population has risen or plummeted. Because the first legitimate elephant census was done in 2011. Before 2011, elephant population numbers were given as guesses or estimations. After 2011, last year an elephant census was done, but still the results haven’t been published. There are many who think that the elephant population has increased because, around the country, there are places where locals are newly experiencing HEC. This happened because of habitat loss and the blocking of elephant corridors that occurred due to poor development planning done by various governments. So, as a result of it, new places experience HEC.

Still, the Sri Lankan elephant is classified as “Endangered” by the IUCN Red List due to its high risk of extinction and declining population. Also, we must remember that though culling or capturing of elephants is not done, yet annually, in the last few years, over 350 elephants have died due to HEC. This is only the documented data, and the undocumented figure can give a higher value. A mother elephant usually gives birth to a single calf with a two-year gestation period. They have 4-5 years of interval until the next calf is born. Females become less fertile after 40 years. In Sri Lanka only 6,000 elephants are left. So, such a high mortality rate due to HEC is critical.

Biofencing and Geological Barriers

A victim of the human-elephant conflict

Palmyra Palm fencing: This involves planting palmyra trees (Borassus) as a fence to restrict elephants’ movements. Though it has some positive effects, practically there are problems to call it a solution. This project is expected to take a longer time to achieve its anticipated outcomes and could take even a decade. Even so, the germination rate is lower, and by any chance, if at least one tree fails to grow, the fence becomes ineffective.

Thorny plant fencing: Plants such as agave, cacti, and bougainvillaea had been used to deter elephants, but those had been unsuccessful because of elephants’ thick skin. Besides, elephants even feed on thorny plants such as Acacia eburnean that have sharp thorns that can grow up to 1 inch.

Beehive fencing: The fence is erected at chest height with beehives fixed to it and spaced every ten meters. This method had high success in deterring crop-raiding elephants in Africa. In addition, the produce from hives provided economic benefits to farmers. This project was introduced by Save the Elephants Organisation (SEO). From 2014-2019 SEO collaborated with the Sri Lanka Wildlife Conservation Society (SLWCS) to do a pilot project in Wasgamuwa. Unfortunately, results showed it was ineffective due to the reason that African honey bees (Apes mellifera scutellata) and Asian honey bees (Apes cerana indica) behaviour contrasts. Asian bees cannot scare away elephants, and those bees are not active at nighttime.

Trenches: Soil erosion had made trenches ineffective, and also the construction and maintenance cost is very expensive. According to past experiences, it had impeded wildlife movement, and a lot of other smaller animals had died after falling to them. Also, there is a potential of hydrological impacts that would have a negative effect on villages.

Effective methods

Before touching this topic, it is important to mention that the strategies put forward here are science-based projects, and these projects had been put into experiment as pilot projects with successful results. The villagers state that after the implementation of the project, HEC had been solved or mitigated. These projects had been done by the Centre for Conservation and Research and SLWCS.

According to research, it has been proved that the electric fence is the most effective to deter elephants. But it depends where the electric fence is erected. If it is erected in the boundary of a protected area, it can be ineffective, but instead, if it is erected at the border between elephant habitat and human-use areas, it can be successful. This is what is called community-based electric fencing and proved to be successful in mitigating HEC.

Another method is the paddy-field electric fences. These fences are installed seasonally. During cultivation the fences are installed, and during harvest the fence is removed and stored in their houses until the following crop season. So, during the fallow periods, elephants would forage the leftover harvest and other vegetation. By 2020, approximately 50 village electric fences and 25 paddy-field electric fences were active in the Kurunegala, Hambantota, Trincomalee, and Anuradhapura districts for up to 12 years. Feedback from the villagers is positive.

It needs to be mentioned that in 2020 a National Action Plan for the Mitigation of HEC was made by a committee of wildlife experts. Strategies included in the National Action Plan were chosen based on their demonstrated effectiveness, capacity to be executed on a suitable geographic and temporal scale, and cost-effectiveness. Stakeholder discussions were performed with the public and relevant agencies, and their feedback was integrated into the Action Plan as needed. So, if that action plan gets implemented, HEC could be mitigated!