By Althaf Marsoof

Abstract: Earlier this year, the Government of Sri Lanka decided that all bodies of persons who had (or suspected to have) COVID-19 shall be disposed of by cremation. Although this decision appears to be neutral, it has significantly impacted the Muslims of Sri Lanka, as they strongly believe in the need to give their dead a dignified and decent burial – cremation being regarded as a repugnant practice amounting to a desecration of the human body. As such, the Sri Lankan Government’s decision interferes with the right to manifest one’s religion or belief as guaranteed by the 1978 Constitution of Sri Lanka. The objective of this brief article is to consider the extent to which the decision to cremate is consistent with the fundamental rights framework of the country’s constitution.

Keywords – COVID-19; burial rites; fundamental rights; limitations; proportionality

Introduction
The Novel Corona Virus (or COVID-19) has tremendously impacted human life in many ways. But importantly, it has tested the competence of governments around the world and their ability to deal with the crisis rationally and sensibly. While some governments have succeeded, others have failed miserably. In certain respects, the Sri Lankan Government belongs to the latter – the forced cremation of bodies of COVID-19 victims being one reason for this classification. The objective of this article is to determine whether the Sri Lankan Government’s decision to cremate bodies of persons who had (or suspected to have) died of COVID-19 is consistent with the fundamental rights framework of Sri Lanka’s 1978 Constitution (‘Constitution’).

The events thus far
On 30 January 2020, the World Health Organization (WHO) declared a public health emergency of international concern, in respect of a virus that was later named as COVID-19. In Sri Lanka, the first confirmed COVID-19 patient was detected in January, and more patients emerged from amongst those who had returned to the country from overseas. The first COVID-19 death was reported on 28 March 2020 (Srinivasan 2020). Just a day prior to it, Sri Lanka’s Ministry of Health published guidelines, which permitted either the burial or cremation of those who had died of COVID-19 (Ministry of Health 2020a). The said guidelines were in conformity with the guidelines of the WHO published in respect of the prevention and control of pandemic-prone acute respiratory infections (WHO 2014) (‘2014 WHO Guidelines’) and the more recent COVID-19 specific guidance (WHO 2020) (‘2020 WHO Interim Guidance’). Both the 2014 WHO Guidelines and 2020 WHO Guidance permit either the burial or cremation of bodies of COVID-19 victims subject to certain conditions being met.

In light of the above, it came as a surprise, if not a shock, when the body of the first Muslim COVID-19 victim, who had died on 30 March 2020, was cremated by the authorities without the family’s consent and in total violation of both the WHO guidelines and the Health Ministry’s its guidelines dated 27 March 2020 (Ahamed 2020). Almost immediately, the Ministry of Health retracted its previous guidelines and published a fresh set of guidelines dated 31 March 2020 (Ministry of Health 2020b) (‘31 March MOH Guidelines’). A striking feature of the new guidelines is that they expressly provide for the cremation (and not burial) of bodies of persons who had (or suspected to have) died of COVID-19. Subsequently, on 11 April 2020, the Minister of Health, promulgated certain new regulations (‘11 April Regulations’), purporting to exercise powers vested under sections 2 and 3 of the Quarantine and Prevention of Diseases Ordinance 1897, in order to give effect to the 31 March MOH Guidelines. In particular, the 11 April Regulations amended certain previous regulations made under the said Ordinance by adding the following text:

the corpse of a person who has died or is suspected to have died of Coronavirus Disease 2019 (COVID-19) shall be cremated (Ministry of Health 2020c).

Pursuant to the 31 March MOH Guidelines and the 11 April Regulations, all subsequent deaths of Muslim individuals either infected with or suspected of having COVID-19 resulted in cremations. Particularly during the second wave of the pandemic in Sri Lanka, a majority of COVID-19 deaths occurred in communities with a higher percentage of Muslim population. Of all COVID-19 deaths so far (at the time of writing, 36 deaths had been recorded), a significant number of them have been from the Muslim community. The Government’s move to cremate the bodies of COVID-19 victims and the relatively higher percentage of COVID-19 deaths seen among the Muslim community have collectively caused significant grief and anguish among Sri Lankan Muslims.

Final rites in Islam during a pandemic
Contagious diseases are not alien to the Muslim world, and indeed, even during the lifetime of the Prophet Muhammad (peace be upon him), plagues were not unknown. For instance, the following recorded observations of Prophet Muhammad (peace be upon him) exemplify this fact:

If you hear about it (an outbreak of plague) in a land, do not go to it; but if plague breaks out in a country where you are staying, do not run away from it. Any servant who resides in a land afflicted by plague, remaining patient and hoping for reward from Allah, knowing that nothing will befall him but what Allah has decreed, he will be given the reward of a martyr (Eléxpuru 2020).

The above prophetic guidance suggests that every Muslim has an obligation to do his or her part to ensure the containment of contagious diseases and plagues. Logically, this guidance also should apply to the disposal of bodies of COVID-19 victims. In normal circumstances, Muslims perform four key rituals in order to carry out the final rites of those who have died. These are:

  1. Washing of the body.
  2. Shrouding.
  3. Prayer.
  4. Burial.

During pandemics, the first two rituals may be disregarded in the event those rituals could endanger the lives of body handlers and the rest of the community. Although the third requirement of prayer is usually carried out in close proximity to the dead body (or Janaza), during pandemics, there is flexibility with regard to this requirement – the prayer can take place in the absence of the body. However, the final ritual of burial must still be carried out, as far as practically possible, but in accordance with international and/or national standards imposed to contain the spread of disease.

Muslims believe that after death, the soul is removed from the physical body. While the soul is returned to its creator, the physical remains must return to the soil. In this regard, the Qur’an (Sura Taha, Ch.20:55), the holy book followed by those professing the Islamic faith, provides  مِنۡهَا خَلَقۡنٰكُمۡ وَفِيۡهَا نُعِيۡدُكُمۡ وَمِنۡهَا نُخۡرِجُكُمۡ تَارَةً اُخۡرٰى which translates to “from the earth We created you, and into it We will return you, and from it We will extract you another time” (Pickthall 2001). As such, the act of burying the dead gives effect to the word of God and is key to protecting the dignity of the dead. It is forbidden to sit on a tomb or to walk on it. Any of the above acts constitute a major sin in Islam. It has been recorded in the Sunan Abu Daud (hadith 3207) that the Prophet (peace be upon him) once said “[b]reaking the bones of a dead person is like breaking them when he is alive” (Mahdi al-Sharif 2008). In essence, showing disrespect to the dead is akin to causing harm to a living human, and hence, a major sin.

Therefore, Muslims firmly believe in the need to bury their dead. Disregarding this requirement is a collective sin. As such, unless exceptional circumstances exist that warrant disregarding the requirement for burial, it is the collective obligation on the part of every Muslim in the community to ensure the proper burial of those who have died. Indeed, if carrying out burials individually is not practical, it is permissible to do so in mass graves. Whereas, cremating the bodies of Muslims is regarded as a grave violation of the dignity of the human body, and should be avoided unless there is no other way to dispose of bodies infected with a contagious disease. A decision not to bury and, indeed, a decision to cremate must be backed by strong evidence indicating that cremation is the only means to safely dispose of such bodies.

The constitutionality of the 31 March MOH Guidelines and 11 April Regulations
Final rites, particularly the burial of the dead, are an integral and vital aspect of the exercise of religious rights and freedoms, and for Muslims, as stated before, burying their dead has been prescribed as mandatory – cremation being regarded as not only prohibited but also a desecration of the deceased (D’Avanzo 2008, 329). Thus, the 31 March MOH Guidelines and 11 April Regulations go against the fundamental belief and practice of Sri Lankan Muslims in dealing with their dead. In light of this, it is necessary to consider the legality of the aforesaid guidelines and regulations, in particular, as to whether they are consistent with the fundamental rights framework of the Constitution.

This analysis must begin with the fundamental rights provisions of Sri Lanka’s Constitution that seek to protect religious freedoms and beliefs. Art.10 of the Constitution provides:

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.

Art.14(1)(e) of the Constitution provides:

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.

A few points are worth noting here. First, it is clear that Sri Lanka’s constitution confers on every person the freedom of religion and to every citizen the freedom to manifest his religion or belief.

Second, the final rites of deceased persons come within the scope of religious rights and freedoms. Although there is no direct judicial authority on this point in Sri Lanka, several decisions of the European Court of Human Rights indicate that the failure to return dead bodies to the relatives for burial or disclose where they were buried, could constitute a violation of the various fundamental rights protected under the European Convention on Human Rights (Council of Europe/European Court of Human Rights 2020, 34-35).

Third, even if final rites are not regarded as part of religious rights, Art.14(1)(e) protects every citizens’ freedom to manifest his belief, which extends to non-religious beliefs (Boyle and Shah 2014, 220). As such, even if final rites are not regarded as constituting a right to religion or religious belief, it still comes within the broader formulation of ‘belief’ as set out in Art.14(1)(e) of the Constitution.

Lastly, it is important to note the distinction between Art.10 and Art.14(1)(e). While Art.10 is absolute, that is, no restrictions can be imposed on the exercise of the rights emanating from that provision, Art.14(1)(e) may be subject to the restrictions set out in Art.15(7), namely:

restrictions as may be prescribed by law in the interests 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 freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.

This distinction is logical because the right set out in Art.10 guarantees to every individual the freedom to believe in whatever he wants, which is an internal process, whereas, Art.14(1)(e) deals with the external manifestation of that belief. For that reason, the State and its agencies may impose restrictions on the external manifestation of one’s religion or belief in certain limited circumstances. It is within the above framework that one must consider the constitutionality of the Government’s 31 March MOH Guidelines and 11 April Regulations.

On the one hand, the aforesaid guidelines and regulations seek to fulfil a public health objective, that is to avert the spread of COVID-19. On the other hand, the said guidelines directly impact a key religious practice of Sri Lankan Muslims, insofar as the guidelines mandate the cremation of dead bodies infected with COVID-19. Thus, this is a situation where the exercise of a fundamental right is subject to a restriction under Art.15(7) – that is, on the ground of public health. In this regard, but with respect to the right to speech guaranteed by the Constitution, the Supreme Court has held that “Article 15(7) refers to restrictions as may be prescribed by law and the Supreme Court has interpreted that in addition, restrictions must have a legitimate aim recognized by the Constitution” (Perera v Balapatabendi 2005, 195-196). Significantly, the Supreme Court went on to hold that:

Restrictions placed arbitrarily by those in authority for subjective reasons or on account of personal selectivity or idiosyncrasies as in this case […] cannot be considered as either restriction “prescribed by law” or restrictions having a “legitimate aim recognized by the Constitution” (Perera v Balapatabendi 2005, 196).

In other words, where a fundamental right is restricted, it must be done to achieve a legitimate aim recognised by the Constitution, such as public health. However, the State must establish that the restriction imposed (in this case, the 31 March MOH Guidelines/11 April Regulations) on the exercise of a fundamental right (in this case, the right to manifest religion or belief) is a justifiable encumbrance on the fundamental right. In this regard, any restriction must have a proper scientific basis, and also it must be established that the limitation is a proportionate means of achieving the stated objective.

The first aspect deals with the necessity of the restriction. For instance, in dealing with the President’s powers in respect of imposing Emergency Regulations under the Public Security Ordinance 1947, the Supreme Court has held:

It is competent for the court to question the necessity of the Emergency Regulation and whether there is a proximate or rational nexus between the restriction imposed on a citizen’s fundamental rights by Emergency Regulation and the object sought to be achieved by the regulation (Perera v AG 1992, 201).

In other words, the State must establish the necessity for the restriction imposed on the exercise of a fundamental right, which in turn depends on the establishment of a proximate or rational nexus between the restriction and the object to be achieved by imposing the restriction. As regards the 31 March MOH Guidelines/11 April Regulations, it is clear that its object is to contain the spread of COVID-19. However, it is for the State to establish that there is a rational nexus between that object and the restriction imposed therein – that is, the prohibition imposed on the burial of COVID-19 victims, and instead compelling the cremation of dead bodies. This needs to be established through proper scientific evidence. Often, when rights and public interest collide, the balancing exercise requires a thorough and detailed reference to all relevant scientific evidence. In weighing the scales, what is relevant is the most up-to-date evidence and, more importantly, it is crucial that the deciding authority engages in detail with that evidence (R v Secretary of State for Health 2016, paras 29 and 405).

In addition, any restriction on the exercise of a fundamental right must be proportionate. The doctrine of proportionality is a well-known tool that is employed in balancing competing rights and interests. It has been noted that “the doctrine of proportionality, provides that a court of review may intervene if it considers that harms attendant upon a particular exercise of power are disproportionate to the benefits sought to be achieved” (Wicremasinghe v De Silva 2001, 340). In another instance, the Supreme Court observed, with reference to the right to engage in a lawful occupation guaranteed under Art.14(1)(g) of the Constitution:

Imposing a life-time bar on the Petitioner holding, public office would not only have violated his fundamental right guaranteed by Article 14(1)(g) of the Constitution but would also have offended the rule of proportionality (Jayasundera v AG 2009, 38).

In other words, if less restrictive but equally practical and effective mechanisms exist that could achieve the objectives underlying any restriction of a fundamental right, then the least restrictive measure must be adopted. Only then, could the restriction be regarded as a lawful restriction of the fundamental right in question. As regards the disposal of bodies infected with COVID-19, the question must be posed whether cremation is the only means of ensuring that the virus does not spread from infected dead bodies, if there is at all any evidence of that possibility in the first place.

In this regard, it must be noted that both the 2014 and 2020 WHO guidance require certain conditions to be met before final rites are performed on those who have died of COVID-19. For instance, the 2020 WHO Interim Guidance stipulate that the following conditions must be met before final rites could be performed:

  1. Ensure that personnel who interact with the body (health care or mortuary staff, or the burial team) apply standard precautions,2,3 including hand hygiene before and after interaction with the body, and the environment; and use appropriate PPE according to the level of interaction with the body, including a gown and gloves. If there is a risk of splashes from the body fluids or secretions, personnel should use facial protection, including the use of face shield or goggles and medical mask;
  2. Prepare the body for transfer including removal of all lines, catheters and other tubes;
  3. Ensure that any body fluids leaking from orifices are contained;
  4. Keep both the movement and handling of the body to a minimum;
  5. Wrap body in cloth and transfer it as soon as possible to the mortuary area;

-There is no need to disinfect the body before transfer to the mortuary area;
-Body bags are not necessary, although they may be used for other reasons (e.g. excessive body fluid leakage); and

  1. No special transport equipment or vehicle is required.

A more recently published guidance of the International Federation of Red Cross and Red Crescent Societies (IFRC), International Committee of the Red Cross (ICRC) and the WHO (published in July 2020) (‘2020 Inter-Agency Guidance’), re-affirms the possibility of burying those who have died of COVID-19:

A person who has died from COVID-19 may be buried in an existing public cemetery or community burial ground. However, where mortality is expected to be high, local authorities and affected communities may assign specific areas in which to bury those who die. Mass graves are highly discouraged, they are often a demonstration of poor planning by authorities, and they show a disregard for the wishes, customs and religious rites of families and communities. Single graves are respectful and dignified, and they facilitate locating human remains and honouring those buried there (IFRC, ICRC and WHO 2020, 9).

The WHO cannot be regarded as making the aforesaid recommendations regarding the burial of those who die of COVID-19 on grounds that lack a scientific basis. In fact, the 2014 WHO Guidelines, 2020 WHO Interim Guidance and the 2020 Inter-Agency Guidance are premised on well-researched data and scientific research published in highly reputed peer-reviewed journals by experts in the relevant field. As such, the aforesaid guidelines/guidance cannot be ignored and those who are involved in making decisions regarding the disposal of bodies infected with COVID-19 in Sri Lanka must engage with the scientific literature and provide detailed explanations on how any determination is made for the local context.

Unfortunately, the Sri Lankan Government has not publicly (or in any other manner) set out convincing (if not any) reasons for its decision mandating cremation as the only means of disposing of bodies infected with COVID-19. The lack of a detailed explanation raises doubts about the scientific basis for the 31 March MOH Guidelines and 11 April Regulations and hence, their justifiability as a legitimate restriction of the fundamental right to manifest one’s religion or belief. Indeed, the fact that the WHO and Inter-Agency guidance even to date permit either burial or cremation of bodies of COVID-19 victims, subject to certain tight restrictions imposed therein, and other countries impacted by the pandemic have made special provision for the burial of such victims, only increases the doubts about the legitimacy of the 31 March MOH Guidelines/11 April Regulations.

Conclusion
The COVID-19 health crisis is a real and serious threat. The international community, governments and citizens all have a collective role to play if we are to defeat this natural enemy. However, we must do so without losing our humanity. This particularly applies in respect of decisions made as regards the disposal of bodies of COVID-19 victims. The analysis undertaken above suggests that there is significant doubt as to whether the practice of cremating bodies of COVID-19 victims is consistent with the fundamental rights framework of the Sri Lankan Constitution.

While we must strive to achieve the greater public good of suppressing the virus, we must not unduly disregard the rights of citizens, even if those rights relate to a minority community. It is crucial for those having the authority to decide on matters such as this to do so objectively and scientifically and, more importantly, to be transparent and make genuine efforts to engage with the community when such decisions are made. What is necessary is to encourage open dialogue between State authorities and the community so that practical solutions, if not compromises, may be reached.

(Althaf Marsoof is an Assistant Professor of Law at the Nanyang Business School, Nanayang Technological University in Singapore. He is also an Attorney-at-Law in Sri Lanka, and prior to moving into full-time academia, worked for the Attorney General’s Department.)

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