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By issuing an Extraordinary Gazette Notification (No. 2170/8, dated 11 April 2020), Sri Lankan government has made cremation compulsory for COVID-19 (Coronavirus) victims, ignoring protests from the Muslim and Christian population which says this mandatory rule goes against their religious norms. So far, three Muslims are among the seven people who have died from the infectious disease in the country, therefore, minorities are asking why Sri Lanka is still insisting on not allowing burials while many other countries around the world are burying the remains of COVID-19 victims.
Thus, in Sri Lanka, decisions relating to the manner of disposing of the bodies of victims of COVID-19 may be extremely sensitive and may have to be taken in the backdrop of many socio-economic and religio–cultural factors, in addition to the applicable pragmatic health safety considerations[i].
Earlier the Health Ministry of Sri Lanka had issued Provisional Clinical Practice Guidelines on COVID 19 Suspected and Confirmed Patients dated 27 March 2020 allowed for burial under certain conditions, and the (limited) family members of the deceased to view the body at a designated place at the hospital. However, some reliable news has been reported that an individual of the Muslim faith who died due to COVID-19 was cremated on 30 March 2020 in contravention of the said Health Ministry Guidelines and against the wishes of the family.
However, the said Provisional Clinical Practice Guidelines on COVID-19 Suspected and Confirmed Patients were thereafter amended and the new document dated 31 March 2020 as well as the Ministry of Health Circular No. EPID/400/2019 n-cov issued on 1 April 2020, which reproduces the amended Guidelines, requires that all COVID-19 victims be cremated. In compliance with these mandatory guidelines, the Minister of Health and Indigenous Medical Services on 11 April 2020 issued an Extraordinary Gazette notification, announcing the new regulations with regards to the Cremation of Corpse of a person who has died of Coronavirus Disease within 24 hours.
According to Muslim religious belief, dead body is buried with dignity following certain prescribed funeral rites. BUT cremation of the dead body is NOT permitted as lawful, therefore, and the amended circular has caused great suffering within the community. Likewise, among Christian people burial was always preferred as the method of disposition inherited from Judaism and the example of Jesus’s burial in the tomb[ii]. Christians generally objected to cremation because it interfered with the concept of the resurrection of a corpse, and practiced inhumation almost exclusively.
Article 10 of the Sri Lankan Constitution provides that ‘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’. Right mentioned in Article 10 is an absolute right and is not subject to restrictions enumerated in Article 15 of the Constitution. The recognition of the freedom of religion as absolute was judicially recognized by the case PremalalPerera v. Weerasuriya[iii]where the Supreme Court held: “Beliefs rooted in religion are protected. A religious belief need not be logical, acceptable, consistent, or comprehensible in order to be protected…the courts are not arbiters of scriptural interpretation and should not undertake to dissect religious beliefs”.[iv]
The Constitution, under Article 12, also provides for the protection from discrimination on the grounds of religion. Article 12(2) provides: ‘No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds’. Moreover, Article 12(3) states that ‘no person…on the grounds of religion…shall be subject to any disability, liability, restriction, or condition with regard to…places of worship of his own religion’.
Article 14(1)(e) of the Constitution states that ‘every citizen is entitled to the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice, and teaching’. Unlike Article 10, the rights contained in Article 14(1)(e) can be restricted on the basis of National security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedom of others, or of meeting the just requirements of the general welfare of a democratic society[v].
Additionally, the Constitution places certain obligations on the state to promote religious harmony. The Directive Principles of State Policy contained in Article 27(5) provides that the ‘state shall strengthen national unity by promoting co-operation and mutual confidence among all sections of the People of Sri Lanka, including the racial, religious, linguistic and other groups…’ Further, Article 27(6) directives that ‘the State shall ensure equality of opportunity to citizens so that no citizen shall suffer any disability on the ground of race, religion, language, caste, sex, political opinion or occupation’.
Notwithstanding the fact that rights under Article 27 are not justiciable, the Supreme Court in Bulankulama and Others v. Minister of Industrial Development and Others[vi] held that the Directive Principles of State Policy place an obligation on the state to ensure the progressive realization of the relevant right. Applying this reasoning to religious freedom, it is reasonable to argue that the state has a positive obligation to create the necessary economic, political, and social environment to enable people of all religious faiths to practice their beliefs.
Although any restrictions on fundamental rights may be imposed(under Article 15), they cannot be restricted to a point of denial. Despite the constitutionally valid restrictions that preventive detention may impose on one’s personal liberty due to article 15(7) of the Constitution, the Court could review the reasonableness of the restrictions. The concept of reasonableness as a means of scrutinizing executive action has been discussed by the Supreme Court. (See: Wickramabandu v. Cyril Herath[vii]
Likewise, Emergency Regulations or any other regulations restricting the exercise and operation of fundamental rights may be made only for the reasons specified in Article 15 (7) of the Constitution and must be confined to those reasons in their construction and interpretation.
When provisions affecting the liberty of the subject are in question inroads into them must be strictly scrutinized and construed [See: perSamarakoon, CJ in VijayaKumaranatunga v. G. V. P. Samarasinghe and Others(1983) 2 SLR 63, perAmerasinghe, J in Sunil Rodrigo (on Behalf of B. SirisenaCooray) v. Chandananda De Silva and Others (1997) 3 SLR 265].
As an organ of government, the role of the judiciary is clear: to safeguard the fundamental rights of the people. Article 4 (d) of the Constitution states that the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all organs of government, and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided. Thus, any restriction of the exercise and operation of the fundamental rights declared and recognized by Chapter III of the Constitution can only be made by legitimate “law”; its legitimacy can be scrutinized/questioned by way of Fundament Right Application under Article 126 of the Constitution[viii].
Moreover, Article 15(7) of the Constitution very specifically stipulates that rights under Article 14 can only be restricted by ‘law’, which ‘includes regulations made under the law for the time being relating to public security’. We could argue that the Circular/regulation in question (issued by the Health Ministry) was not ‘regulations’ and were certainly not issued under the Public Security Ordinance[ix](PSO). The courts have interpreted this provision to specifically refer to emergency regulations issued under the PSO and not under any other law.
In Thavaneethan v. Dayananda Dissanayake, Commissioner of Elections and Others[x], it was held that rights under Article 12(1) and 14(1) (a) could only have been restricted by law including Emergency Regulations made under the Public Security Ordinance (Articles 15(6) and 15(7) of the Constitution). A Regulation made by the President under the Prevention of Terrorism Act by the President calling upon the Army to assist the police did not permit the imposed restriction. In this case, Justice Fernando further emphasized that Article 15 does not permit restrictions on fundamental rights other than by plenary legislation – which is subject to pre-enactment review for constitutionality. It does not permit restrictions by executive action (i.e. by regulations), the sole exception permitted by Article 15(1) and 15(7) being emergency regulations under the Public Security Ordinance”[xi]
Therefore, the primary responsibility lies with the state to ensure that the rights of all citizens in Sri Lanka to practice their religious beliefs are guaranteed, as the constitutional right to equality before the law is not diminished during extraordinary circumstances. This being the case, it will be imprudent to implement the fateful regulation (on mandatory cremation), where there exists no justifiable cause or scientific reasoning.
[i] Justice (Dr.) SaleemMarsoof PC, ‘A brief note on Proposal of Bodies of Covid-19 Victims: A muslim perspective’, p. 1
[ii]According to the canonical gospel accounts, he was placed in a tomb by a man named Joseph of Arimathea. In art, it is often called the Entombment of Christ. See: Devlin, William. “Cremation”, The Catholic Encyclopedia IV. New York: Robert Appleton Company, 1908
[iii][(1985) 2 SLR 177],
[iv] Ibid, p. 192
[v]vide Article 15(7)
[vi][(2000) 3 SLR 243]
[vii][(1990) 2 SLR 348]
[viii]126 (1) provides: The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV
[ix] Ordinance No. 25 of 1947
[x][(2003) 1 SLR 74],
[xi]Ibid, p. 98