By Haaris Mahmud –
Since the beginning of time, humans have grappled with the reality and mystery of our mortality. To the scientific world, death may be purely biological and anatomical—the ceasing of brain functions, stopping of the heart etc. But, to the organised, scripture-based religions and the oral faith systems, death is a phenomenon with philosophical, theological and spiritual dimensions. From the ancient Egyptians who built the pyramids to our modern religious traditions, every culture develops rituals that help mourners find solace, connection, and meaning. These ceremonies help us cope with loss.
Scientists can’t yet say for sure what the fatality rate of the coronavirus is, because they’re not certain how many people have become infected with the disease. But they do have some estimates, and there is a widespread consensus that COVID-19 is most dangerous for many specially the elderly patients and those with pre-existing health burdens, although not limited to these groups. Deaths due to Coronavirus pandemic is increasing at an alarming rate.
COVID-19 has been a test for our societies, and we are all learning and adapting as we respond to the virus. We understand the need for a range of steps to combat COVID-19. Unfortunately, in the guise of fighting this deadly virus, human dignity and rights have been taking a bashing as well. Our efforts to combat this virus won’t work unless we approach it holistically, which means taking great care to protect the most vulnerable and neglected people in society, both medically and economically. With the fatality rates on a rapid increase, the governments have been thinking about the critical issue of disposing the bodies rapidly and carefully to avoid spreading of infection. Part of the plan has been to cremate the bodies of those who fell victim to this deadly virus. Sri Lanka has also devised plans to cremate bodies so affected as well.
It is a matter of regret that this plan to resort to cremation of bodies have been taken without due cognizance of and due consultation with the religious communities adversely affected by this ruling. Particularly, this affects the religious susceptibilities of the Muslims and the Jews. In the case of Sri Lanka, this largely affects and cause concern to the Muslim community which constitute 10% of the population. The basis of objection is religious and does not in any way reflect negatively on the preparedness of the Muslims to cooperate with the authorities by putting a cog in the wheel in the process of controlling the pandemic. In fact, the Muslims have been cooperating with the government authorities fully. They even closed mosques, suspended Jumma weekly prayers and even the daily congregational prayers too. But, the subject of cremation is a very sensitive issue which cannot be considered as one which can be compromised or ignored as a first resort.
For those of the Muslim faith, cremation is forbidden. Funeral rites for followers of Islam are prescribed by divine law, and they must bury their dead as quickly as possible – preferably within a day of death. The body should be treated with equal respect in both life and death. Burning the dead is considered a form of mutilation, forbidden by Allah. The sanctity of the dead body and the importance of religious burial is therefore an integral component of religious practice for Muslims, as well as Jews as well. Hence cremation is forbidden in Islam and Judaism. It is therefore insensitive for a government to impose a cremation upon the loved ones of these communities, thus adding further anguish and trauma to bereaved families, who themselves may be in self-isolation at the time of cremation. The body of a dead Muslim is as sacred as the body of a living Muslim. Handling should be gentle and respectful. To them, once the soul has gone and the body is dead, they still feel pained if it is not treated properly.
International human rights law, notably the International Covenant on Civil and Political Rights (ICCPR), which Sri Lanka has signed and ratified, requires that restrictions on human rights in the name of public health or a public emergency meet requirements of legality, evidence-based necessity, and proportionality. Restrictions must, at a minimum, be provided for and carried out in accordance with the law. They must be strictly necessary to achieve a legitimate objective, the least intrusive and restrictive available to reach the objective, based on scientific evidence, neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, and subject to review.
The Government of Sri Lanka (GoSL) should therefore respect the wishes of religious minorities in line with international and constitutional obligations that protects freedom of thought, belief and religion, and amend the proposed ruling to ensure no Muslim family is forced to undergo the trauma of seeing their loved one cremated. GoSL should initiate discussions with the ACJU and other civil Muslim bodies to arrive at an acceptable consensus.
There is a point of view emerging in Sri Lanka promoted by some hate groups, especially after the Easter Sunday that Muslims seems to enjoy special privileges in Sri Lanka, not afforded by the other communities. This is a warped view to say the least. It is a right of any community to defend their cultural identity and rights; so are the Muslims. Religious, intellectual, and cultural diversity and differences are universal facts that must be accepted by all. By doing so, we reflect a high level of awareness and respect for everyone’s rights and freedoms. Religious beliefs, which are the source of moral and ethical fundamentals in society, must be duly respected through mutual tolerance. For tolerance to work and to bring about coexistence in society, there needs to be a mutual effort by all parties/stakeholders.
The right to culture – and the right to take part in culture – was, at first, purely an individual right, as provided by Article 15 of the International Covenant on Economic Social and Cultural Rights (ICESCR). However, the right to take part in culture has been expanded through a wider interpretation of Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which affirms the right to culture for members of minorities and indigenous peoples. Article 27 specifically stipulates that persons belonging to ethnic, religious or linguistic minorities ‘shall not be denied the right, in community with other members of their group, to enjoy their own culture’. Although the language is quite generic, it is now accepted that positive protection is required to realize the provisions of Article 27.
The rights of persons belonging to minorities and indigenous peoples to enjoy their own culture are thus permanent. Importantly, their realization may need special measures. Such special measures are well recognized in international law as not being discriminatory, and are mandatory, rather than discretionary as some states have indicated. Therefore, state policies that simply provide for non-interference in the right to culture of minorities and indigenous peoples do not fulfil the current obligations of states under the prevailing interpretation of contemporary international law. Prohibition of or disrespect towards ‘religion or belief systems, rites and ceremonies’ violates both the right to culture and the freedom of religion. One has to bear in mind that religious/cultural expressions of members of minorities and indigenous peoples require additional protection, as the former are inherently vulnerable because of their non-dominance in the society.
The European Court of HR has noted: ‘an emerging international consensus … recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle … not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community’ (Chapman v. The United Kingdom)
Appeal To The HE The President
The Muslim community therefore crave the indulgence of HE The President Gotabaya Rajapaksa that due regard is paid to the susceptibilities of the community by accordingly amending the proposed ruling to cremate all bodies of Corona victims, to accommodate the wishes of the Muslim bereaved families. UK can be cited as an example.
A similar controversy arose in the UK as well when the UK also planned to introduce the Coronavirus Bill 2019-21 and the Muslim organizations and other faith groups raised concerns about the piece of legislation. As it was written, the bill would have allowed designated local authorities to cremate bodies against the wishes of the deceased. Upon an amendment proposed by a British MP Naz Shah, the government agreed for same, with the House supporting her in achieving such amendment, which now clarifies that
‘both national and local authorities “must have regard to the desirability of disposing of a dead person’s body or other remains – in accordance with the person’s wishes, if known, or otherwise in a way that appears consistent with the person’s religion or beliefs, if known.”
Although it is not the ideal , the amendment provisions at least reflected the readiness of the authorities to respect and consider the religious beliefs when dealing with the crisis. Of course, if a local authority is overwhelmed and is of the considered view that suitable arrangements are not available that do not compromise public health, then cremations may still go ahead. To avoid this situation arising, there is definitely a responsibility cast on the Muslim community to ensure that authorities are not in a position where they believe that no other suitable arrangements are available without compromising public health. This same approach can be adopted in Sri Lanka as well.
We hope the saner counsel will prevail and the government take quick action without providing those hate peddlers another opportunity to use this issue to provoke further hatred against the Muslim community which has already been put through difficult times of demonization particularly in the Post –Easter Sunday period.