The Disposal of COVID-19 Dead Bodies: Impact of Sri Lanka’s Response on Fundamental Rights

Disposal of bodies at a cemetery

Takeaways

  • The Sri Lankan Government’s cremation-only policy during the COVID-19 pandemic significantly impacted the fundamental rights and religious beliefs of the Muslim community, which considers the burial of the deceased an integral part of their religious beliefs.
  • Due to international pressure, the Sri Lankan Government later decided to allow burials in a remote part of the country, which was still a significant restriction on the exercise of burial rites. 
  • There is no scientific evidence to suggest that the burial of COVID-19 victims could cause contamination of the surroundings.

Objective of the paper

Was the Sri Lankan Government’s decision to cremate bodies of individuals who had (or were suspected of having) died of COVID-19 aligned with the fundamental rights framework of the country’s Constitution? Responding to this question, this paper advocates for the protection of fundamental rights as guaranteed by Sri Lanka’s Constitution and emphasises the importance of adopting a proportionate and scientifically informed approach to public health measures and policy formulation during health crises. 

Funeral rites in Islam during a pandemic

Muslims firmly believe in the need to bury the dead. 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. If carrying out burials individually is not practical, it is permissible to do so in mass graves. Whereas cremating the dead 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 dispose of such bodies safely.

From cremation-only to limited burial

The cremation-only policy of the Sri Lankan Government continued for a year and was later withdrawn in February 2021 owing to international pressure. In view of this change in policy, the Sri Lankan Government allowed the burial of COVID-19 dead bodies in Oddamavadi, a remote area in the Eastern Province of the country. However, the paper posited that this was still a significant restriction on the exercise of burial rites, with the designated site being distant and remote, making it less accessible for grieving families.

Fundamental rights enshrined in Sri Lanka’s constitution

The Constitution of Sri Lanka protects freedom of religion in Articles 10 and 14(1)(e), with Article 10 being absolute and Article 14(1)(e) subject to restrictions. Limitations to the external manifestation of religion may be imposed in specific circumstances outlined in Article 15(7) to safeguard, among other things, public health. This paper carried out an in-depth analysis of the legality of the Sri Lankan Government’s regulations on the disposal of COVID-19 dead bodies (i.e. the regulations incorporating its cremation-only and limited burial policies) within this constitutional framework in view of the obvious impact the said regulations had on the right to manifest one's religious beliefs outlined in Article 14(1)(e).

The paper emphasises that for a restriction on fundamental rights to be valid under Article 15(7) of Sri Lanka’s Constitution, it must be “prescribed by law.” The Constitution defines “law” as Acts of Parliament or any law enacted by the legislature but excludes regulations made under statutes (which are classed as subsidiary legislation). However, Article 15(7) includes regulations related to public security as part of the definition of “law”. Still, it is crucial to note that regulations aimed at protecting public health do not come within the definition of “law” under this provision. Therefore, the regulations relating to cremating and restrictively burying COVID-19 dead bodies, made under the Quarantine and Prevention of Diseases Ordinance 1897, cannot be seen as “law” for limiting fundamental rights. The paper argues that such regulations lack the same status as primary legislation and cannot impose a restriction on fundamental rights.

In addition, the paper points out that under Sri Lanka's Constitution, restrictions on fundamental rights must have a legitimate purpose, such as the protection of public health, and must be "necessary" and "proportionate." The paper emphasises that the Sri Lanka Government's decision to cremate and subsequently bury COVID-19 dead bodies in a designated site did not pursue a legitimate purpose. Nor were these decisions necessary and proportionate to the end of protecting public health.

Scientific Basis for the Disposal of COVID-19 Bodies

The paper highlights that there was no valid scientific basis for the Sri Lanka Government's decision to cremate and subsequently bury COVID-19 dead bodies in a designated site. On that note, Professor Vithanage (a member of the technical committee appointed by the Ministry of Health), claimed that burying bodies infected by COVID-19 could contaminate groundwater and become a source from which the virus could spread. However, prior studies have shown that viruses cannot survive without a host and that coronaviruses are more rapidly inactivated in water and wastewater at ambient temperatures.

Thereafter, in late 2020, a new committee was formed and recommended that the cremation-only policy be revised to accommodate burial while adhering to specified safety precautions. Notably, the expert committee stated that COVID-19 is not a water-borne disease, and that water contamination of the body could be avoided by wrapping the body using waterproof material.

Policy implications of the paper

In light of these findings, the paper holds several implications for policy formulation during health crises and other emergencies:

  1. Firstly, it highlights the need for the Sri Lankan Government to ensure that its policies and laws, particularly during times of emergencies, are aligned with constitutional provisions and respect religious rights.
  2. It suggests that policies should be proportionate and based on scientific evidence to strike a balance between public policy concerns and the fundamental rights of citizens, including the right to practice and manifest religion and religious beliefs.
  3. The research also emphasises the importance of transparency, open dialogue, and community engagement in decision-making processes to promote an inclusive and rights-based approach.

Dr Althaf Marsoof is an Assistant Professor of Law attached to the Division of Business Law of the Nanyang Business School (NBS). Prior to joining the NBS, he spent three years at the Dickson Poon School of Law at King’s College London in the United Kingdom (UK), where he completed his Doctoral research investigating approaches to, and challenges in, holding internet intermediaries accountable for infringements of trademark rights. Before moving into full-time academia, he worked for over six years as a State Counsel attached to the Attorney General’s Department in Sri Lanka. He holds a Bachelor of Science in the field of information technology from Curtin University (Australia) and a Master of Laws (with first-class honours) from the University of Cambridge (UK). Dr Marsoof teaches Business Law as part of NBS's undergraduate programme. He also coordinates and teaches the Law of Obligations and Intellectual Property as part of NTU's Renaissance Engineering Programme. In 2018, he was awarded the John Cheung Endowment Social Media Award for the use of social media platforms to enhance teaching, and in 2020, he was awarded the NBS Research Award for the Division of Business Law.