During a celebration in Embilipitiya last Tuesday, which escalated into a full-fledged clash, 29-year-old Sumith Prasanna fell from the top floor of the building. He succumbed to death two days later. Four police officers and three other civilians were also injured in the clash between the police and attendees of the party.
It is said that the police arrived on site, responding to complaints that the party was inconveniencing residents in the area. Relatives of the deceased allege that the police officers demanded alcohol in order to sweep the matter under the carpet. They allege that the police officers attacked them when they were told that they had run out of alcohol. Refuting these allegations the Police claim that the brawl broke out when the Police had intervened to control a tense situation.
What could have been a simple case of public nuisance ended in death and demonstrations in Embilipitiya lasting for days. It’s easy to play the blame game when someone dies, but the crux of the matter is that the public itself is oblivious to existing public nuisance laws.
There are many laws with provisions for trying public nuisance cases. Public nuisance is punishable under the penal code and code of criminal procedure. There are provisions in Nuisance Ordinance No. 15 of 1862, Municipal Ordinance, Police Ordinance and Central Environmental Authority Act No. 47 of 1980 and Act
No. 56 of 1988.
According to the Criminal Procedure Code Section 98 public nuisance can range from blocking a public road or waterway to carrying out any activity detrimental to public health. If any such complaint is received, the police have the authority to obtain an enjoining order issued by a magistrate. As per Police Ordinance Section 80 a permit has to be obtained for the use of sound disseminating devises such as amplifiers and loudspeakers.
“But no timeframe is stipulated in the Ordinance,” explained Police Media Spokesman, ASP Ruwan Gunasekara. “This is a precedence following a judgment in the Supreme Court; Al Haj MTM Ashik and others vs RPS Bandula, OIC Weligama and others.” ASP Gunasekara explained that according to the judgment, the use of sound disseminating devices is permitted only from 6 am to 10 pm Monday through Thursday; 6 am to 1.30 am on Friday and Saturday and until 12.30 am Sunday.
“In the Embilipitiya case a music band has been used, for which no permit had been obtained,” explained ASP Gunasekara. When asked about the police procedure for reacting to a public nuisance complaint, ASP Gunasekara said that the Police have the authority to confiscate any equipment without a warrant.
When asked whether the necessary protocol of the statute had been followed with regard to the procedure in the Embilipitiya incident, ASP Gunasekara said that he cannot comment on the death of Sumith Prasanna, which is still under investigation. However, he reiterated that Police procedure could only be questioned had the officers on the scene not identified themselves as police officers. “This was clearly not the case. The first officers to arrive at the scene were uniformed. And so far no one has told police that the police officers demanded liquor.”
Public nuisance is a broad field, explained Colombo University, Law Faculty Senior Lecturer, Sarveswaran Arulanantham. “Something as simple as a dog barking can be a ‘nuisance’.
“A person cannot take defense claiming that a certain activity, which is considered as a public nuisance is beneficial, useful or convenient,” said Sarveswaran. “Under the Criminal Procedure Code a case can be filed in magistrate court by a person or police and the police are vested with the authority to remove or abate such nuisance.”
Sarveswaran explained that the National Environmental Act (NEA) has provisions for public nuisance in the form of Environment Protection License (EPL) scheme. Industries and activities which require an EPL are listed in Gazette Notification No. 1533/16 dated 25.01.2008. Section 23 A of the NEA states that no person shall carry out any prescribed activity except under the authority of an EPL and in accordance with standards and other criteria mentioned in the EPL.
“However, even with the EPL if a certain industry becomes a nuisance either an individual or the police can file a case in magistrate court,” said Sarveswaran. Under the National Environmental Act, No. 47 of 1980, several noise areas have been identified and decibel levels pertaining to each area stipulated. For low noise area, located within any Pradeshiya Sabha day time decibel level should not exceed 55 and night time decibel level should not exceed 45; for medium noise area, an area located within any Municipal or Urban Council, day time and night time decibel levels should not exceed 63 and 50 respectively. For silent zones, covered by a distance of 100 metres from the boundary of a courthouse, hospital, public library, school, zoo, sacred areas and areas set apart for recreation or environmental purposes, it’s 50 and 45 respectively.For high noise zones, any export processing zone, it’s 70 and 60.
Decibel levels have been stipulated for industrial activity as well for Rural Residential Areas, Urban Residential Areas, Noise Sensitive Areas, Mixed Residential, Commercial Areas and Industrial Areas.
Sarveswaran pointed out that a Fundamental Rights case can be filed in the Supreme Court if public nuisance is caused by the government or its agents. “Garbage dumping by local authorities is a prime example,” said Sarveswaran. “Local authorities have the duty to dispose waste so as not to cause public nuisance.” He informed that there are provisions in the Local Authorities Ordinance to deal with such public nuisance cases.
As the legal principle ‘ignorantia legis neminem excusat’ goes ‘ignorance of law excuses no one’. In other words ignorance does not warrant violating the law.
Irrespective of who is to be blamed for Sumith Prasanna’s death, had the law been abided by last Tuesday in Embilipitiya, perhaps he would still be alive.