December 3rd 2020, Colombo, Sri Lanka: The faith the victims of forced cremation of COVID-19 or COVID-19 suspected dead had in the highest court in Sri Lanka has been shattered. Victims and communities are now left without a recourse in Sri Lanka for the continued injustice they suffer. “We placed greater hopes in the courts. However, for reasons unknown our applications have been rejected. Now we feel dejected, let down and abandoned”, said a son of one of the victims who challenged the offensive regulation in court.

On Tuesday the country’s Supreme Court, by a majority decision refused to grant leave to proceed to the 11 applications filed by petitioners belonging to Muslim, Christian and Catholic communities challenging the Sri Lankan government’s forcible cremation policy on the grounds that it violates the right to freedom of religion and belief of some faiths and that the said regulation, in fact, violates the law under which the regulation has been made as the law itself permits either burial or cremation.

Several eminent lawyers represented the petitioners and argued that the state had provided no evidence that the burial of COVID-19 or suspected COVID-19 dead is a danger to public health. Hence, they said the government by imposing this new restriction violated the constitutionally protected and safeguarded the rights of religious beliefs and practice for whom burial is a critical religious practice, in addition to being a fundamental right.

We are aware that the decision by the Court in refusing leave to proceed was unanimous but unfortunately no reasons were given by the bench for their decision. While we are unable to comment on the basis for the dissent by one judge , we feel the issues raised in the petitions deserved to be heard in full.

Some of the petitioners said on Tuesday that the distraught families of the victims have been asking them to explore the possibilities of how they could continue to fight for justice and hence would consider all options.

“We fully understand that due to the pandemic there is public emergency under which certain rights can be limited including the manifestation of freedom of religion and belief. We also understand that Buddhists, Hindus, Christians, Muslims and others have all been affected by these restrictions; but in all other cases where rights are limited there is evidence of the need to do so,” said one of the petitioners against the policy on forcible cremation. It was brought to the attention that Catholics and Muslims, in deliberations have agreed to all the restrictions including with regard to gathering, handling, washing, praying and specialized mode of burying and all they want was only to be buried adhering to all health conditions.

Under international law limitations of rights such as the freedom to practice one’s religion has to be prescribed by law and the limitation must be necessary and proportionate.

Restrictions and limitations on religious gatherings, congregational prayers and mass celebrations of religious festivals can be necessitated on the grounds that social distancing is vital to reduce the spread of the virus and are being adhered to and cooperated voluntarily.

“Over and over again we have asked the government to give us the reasoning for this policy and they have failed to provide any evidence that burial of COVID-19 dead can contribute to the spread of the virus or provide any health threat,” a son who did not consent for the cremation of his father and hence had to abandon the father’s remains said.

There has been national and international criticism of the government of Sri Lanka on its rare decision to cremate COVID-19 and COVID-19 suspected dead, in spite of clear guidelines by the World Health Organisation explaining that the burial of such victims poses no danger to public health. The Resident Coordinator of the United Nations office in Sri Lanka, United Nations special experts and regional human rights groups have separately written to the government calling for the policy to be changed to ensure COVID-19 dead were handled with dignity and human rights of all are protected. Numerous national civil society organisations, religious groups and individual activists have also written letters and signed petitions to the government calling for a change to the policy.

Human rights groups have been warning that the ethno-centric position of the government, in the context of the state’s failure to challenge hate campaigns and violence against Muslims, points to racism and discrimination targeting the country’s approximately nine percent Muslim population.

These measures affect more than one religious group, but it is particularly terrifying Muslims for whom the burial of dead is an non-negotiable religious practice. They feel targeted, bullied and threatened by the manner in which the government is acting on this.

As of 3rd December 2020, Sri Lanka had over 25,000 cases of COVID 19, 124 deaths, of which over 50 were Muslims.

This press statement is released by:

1. Centre for Policy Alternative
2. International Centre for Ethnic Studies
3. Law and Society Trust
4. Women’s Action Network
5. Alliance for Minorities
6. Affected Women’s Forum
7. Suriya Women’s Development Centre
8. Sisterhood initiative
9. Hashtag Generation
10. Rural Development Foundation
11. National Peace Council
12. Mannar Women’s Development Federation
13. National Fisheries Solidarity Movement
14. Human Elevation Organisation
15. Eastern Social Development Foundation
16. Islamic Women’s Association for Research and Empowerment
17. Association of the Parents and Family Members of the Disappeared
18. Muslim Women’s Development Trust
19. Aalumai Women’s Group
20. Nisha Development Centre

Editors Note:

Names of petitioners and victims have been excluded from this statement due to security reasons.

On 11th April 2020 the Minister of Health brought in an amended regulation making cremation compulsory for COVID-19 or suspected COVID-19 victims. A circular published on 27 March, consistent with previous health regulations, allowed cremation or burial within 24 hours. This changed with the Ministry of Health’s Provisional Clinical Practice Guidelines on COVID-19 Suspected and Confirmed Patients, dated 31 March, which made cremation the only option. Until 30 March, the Ministry of Health webpage listed burial as a safe option for COVID-19 victims – but the death of the first Muslim victim saw a rushed cremation that made the guidelines disappear overnight.