Photo courtesy: Asian Tribune
When someone dies cremation or burial is the accepted criterion according to the wishes of the deceased person or the next of kin. This can be related to religious beliefs as in the case of the Hindus or mere financial or other reasons in a very minority of cases with Buddhists and Christians. However, everyone during their useful life will certainly desire a dignified end. That end will be determined by the deceased’s religious belief or his or her will or deposition before his or her last breath. This will or deposition needs to be respected as explained in the foreword to the Universal Declaration of Human Rights (UDHR) as “all human beings are born free and equal in dignity and rights”. These rights include inter alia, the right to choose how a person’s body needs to be disposed of when he or she dies. There are also people who desire to donate their deceased body to science like the late Mr. Kovoor.
The preamble to the UDHR states: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world” and it further states “Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy the freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people”. Article 18 of the UDHR states Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance”.
Article 4 (d) of the Democratic Socialist Republic of Sri Lanka (The Constitution) states
‘the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”.
Article 10 under Fundamental Rights states “Every person is entitled to freedom of thought, conscience, and religion, including the freedom to have or to adopt a religion or belief of his choice”. I could not find and overriding restrictions in the application of Article 10 in The Constitution.
Cremation or Burial
Against the above background, it is submitted that Government Gazette notification No. 2170/8 dated Saturday, April 11, 2020 – Regulations made by the Minister of Health and Indigenous Medical Services, under Section 2 and 3 of the Quarantine and Prevention of Diseases Ordinance Chapter 222. Section 61 A of the Ordinance which states “ Cremation of corpse of a person who has died of Coronavirus Disease 2019 (COVID 19), paragraph (1) Notwithstanding the provisions of regulations 61 and 62, the corpse of a person who has died or is suspected to have died of Coronavirus disease 2019 (COVID- 19) shall be cremated”.
The Regulation thereafter goes on to explain how the cremation is done, is a piece of legislature which goes against the norms of natural justice for the following reasons:
• It does not state the reason for the need for cremation of all those who succumbed to the Corona Virus. The explanation given by the health authorities is that the groundwater level being high in Sri Lanka, the virus will contaminate the ground water. This is an unacceptable excuse as in the first place it is not so in every place nor is it scientifically proven that such contamination takes place. Secondly, if that is the case, how does the disposal of urine and faecal matter of the COVID-19 victims take place. They are all absorbed into the ground, therefore, if it as explained by the health authorities, then there is more danger of contamination than burial of COVID – 19 deaths.
• The legislature does not provide for the alternative for burial under strict conditions, which are permitted in all other countries. China, a predominantly Buddhist country permits burial. Sri Lanka is the only country that has denied the rights for a dignified end to a deceased person which amounts to a denial of human rights as contained in UDHR for which Sri Lanka is a signatory and to its own constitution cited in my introduction.
• Cremation is not the only solution, burial is a credible alternative which is found to be as effective, on condition that the dead body is shrouded in an airtight plastic cover and then placed in a sealed coffin. This alternative is not provided.
Denial of Human Rights and Erosion of the Rule of Law
It is argued that it is only the Muslims who protest against cremation. It is true that the Islamic religion prohibits dismemberment of dead bodies, to the extent that the Prophet of Islam Muhammad (On whom be peace) said “breaking the bones of a dead person is like breaking them when he is alive” (Sunan Abu Dawood 3207), if breaking a bone is so harmful how much painful would be if burnt.
It is submitted, that it is not only Muslims who desire a dignified end to their life. No one wills to be “burnt” although a minority of Buddhists and Christians, opt for cremation for reasons other than that of their faith. The large numbers of tombs and tombstones in cemeteries all over the world bear testimony to the fact that it is the majority wish for a dignified decent burial. Furthermore, forcible cremation might be against the last will or deposition of a person before he dies. Denial of his last will or deposition amounts to a denial of his human rights, which eventually leads to erosion of the rule of law.
In conclusion, it is submitted that Government Gazette Notification No. 2170/8 dated April 11, 2020 mandating cremation of all COVID-19 deaths without providing an alternative for those who desire a dignified end and without proper scientific proof of ”suspected contamination” is erroneous as, if that was the case, the disposal of faecal matter and urine of COVID 19 victims into the ground might result in much higher contamination.
Forced cremation of unwilling victims is a denial of their human rights guaranteed by UDHR and The Constitution and continuation of such denial without review will result in an erosion of the rule of law.