Rishad Bathiudeen files FR in Supreme Court against compulsory cremation of Muslims

Leader of the All Ceylon Makkal Congress (ACMC) and former minister Rishad Bathiudeen together with several former MPs have filed a Fundamental Rights Petition in the Supreme Court on Thursday (14) challenging the health authorities’ decision to cremate all coronavirus victims including those suspected to have died from it.

In his petition, ACMC Leader Bathiudeen has cited the Minister of Health, Nutrition and Indigenous Medicine, Director General of Health Services of the Ministry of Health, the Secretary of the Ministry of Health and Indigenous Medical Services and the Attorney General as respondents.

“The Petitioners are making the present application both in their own personal interest as well as in the public interest” said ACMC Leader Bathiudeen in his filing and added:

“Since 28-03-2020, there have been occasions when the remains of a person who died in the context of the virus has been disposed of by the Government of Sri Lanka in exclusion of the right of the deceased or his or her relatives right to choose a mode of disposal of the cadaver in the context of the virus. Up to the date of this Petition, there have been nine (09) deaths reported from Covid-19," he added.

Bathiudeen pointed oiut that there has been some uncertainty as to whether the 9th person who died in fact died of Covid-19.

In the petition, he further states that:

"A person who has died of the COVID-19 virus could either be buried or cremated; World Health Organization (WHO) published interim guidance for the Infection Prevention and Control for the safe management of a dead body in the context of COVID-19.

The COVID-19 virus is an acute respiratory illness caused by the said virus which predominantly affects the lungs;

The virus is transmitted between people through droplets, fomites and close contact, with possible spread through faces.

Unlike in the case of hemorrhagic fevers such as Ebola, Marburg, and Cholera dead bodies are generally not infectious.

In pandemic influenzas such the current pandemic, only the lungs are infectious and that too only if handled improperly during an autopsy.

I state that in March 2020, the Ministry of Health published Provisional Clinical Practice Guidelines on COVID-19 suspected and confirmed patients.

Chapter 7 of these MoH Guidelines dealing with ‘Autopsy practice and disposal of a dead body’ up until its third version published on 27-03-2020, provided that a body related to death either confirmed (Category I) or suspected (Category II & III) of COVID-19, should be disposed within 24 hours (preferably within 12 hours) according to the following guidance;

a) The body should never be washed under any circumstance;

b) Cremation or burial is allowed;

c) However, burial is allowed provided that all steps to prevent contact with body [are] ensured

However, on 31-03-2020, immediately after the second Covid-19 death who is identified as a person of the Islamic faith, the Ministry of Health without any notice suddenly amended the MoH Guidelines and the fourth version with the amendments provided that a body related to death either confirmed (Category I) or suspected (Category II & III) of COVID-19, should be exclusively cremated within 24 hours (preferably within 12 hours).

To my utter surprise and dismay, on or about 11-04-2020 the 1st Respondent Minister issued a Gazette Extraordinary 2170/8 dated 11-04-2020 purporting to create regulations pursuant to Section 2 and 3 of the Quarantine and Prevention of Diseases Ordinance for the disposal of a dead body in the context of the virus.

I state that, Regulation 61A in such Gazette Extraordinary No. 2170/8 deals with the method of disposal of person who has died of COVID-19 and states that the method of disposal of the COVID-19 confirmed dead body to be cremation.

Section 3(1)(i) of the Quarantine and Prevention of Diseases Ordinance permit Regulations to be made by the Minister for the following purposes, namely;

“(i) for prescribing the mode of burial or cremation of any person dying of disease;” I am advised to state that the aforesaid Regulation 61A, is ultra vires the powers granted to the 1st Respondent under Section 3(1)(i) the Ordinance.

I am advised to state that the aforesaid Section 3(1)(i) of the Ordinance only allows the 1st Respondent to prescribe the mode of burial or cremation in the context of the virus but does not allow the 1st Respondent to prescribe cremation in preference to burial or vice versa.

The Petitioners are advised to state that, the said Regulations are contrary to the provisions of written law including the provisions relating to sudden deaths and inquests in the Code of Criminal Procedure Act No 15 of 1979 (as amended).

I verily believe that there is no scientific evidence to support a conclusion that cremation is safer than burial to prevent the infection from virus.

I state that to the best of my knowledge, despite millions of infections of the virus across the world and hundreds of thousands of deaths and burials of cadavers across the world, hitherto there is not even a single report of infection being caused by burial of a cadaver.

The Government Medical Officers Association [GMOA] has by letter dated 03-042020 written to the 2nd Respondent Director General Health Services observing that the WHO guidelines prescribe both burial and cremation and suggesting that a team of experts of all relevant areas be consulted to decide on the best course of action.

In view of the imminent infringement of rights of many of the Islamic community on or around 08-05-2020, I wrote to the President informing of the importance of conducting one’s funeral rites while respecting their religious beliefs.

Thereby, requesting that the method of disposal of a dead body be amended to include burial as well.

I state that I am therefore entitled in law to seek an Order Quashing Regulation 61A in Gazette Extraordinary No. 2170/8 of the Democratic Socialist Republic of Sri Lanka, published on 11-04-2020.”