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Sri Lanka: Bogus One Country One Law

Who is to be blamed for this unprofessional, unsubstantiated and disastrous decision? Can only a single person or authority be held responsible? Are several people responsible? Has there been a lapse in executive action from the side of the government? 

by Mass L. Usuf

“The corrupt and the good are not equal, though the abundance of the corrupt please thee.” (Quran: Chapter 5 Verse 100)

The government has clearly messed up a simple matter which could have been resolved by firm executive action.  With the outbreak of Covid 19 virus pandemic in late 2019, the WHO guidelines with regard to the disposal of Covid 19 infected dead bodies were already out.  It very clearly recommended either cremation or burial as a safe mode of disposal.  When the WHO give guidelines, they do it with authority and certainty. There are highly trained and experienced professionals who serve in that world body.  In its Code of Conduct for Responsible Research, it is stated:

 “WHO is committed to the highest standards of research integrity and promotes high quality research that is ethical, expertly reviewed, efficient, accessible, transparent, carefully monitored and rigorously evaluated.”  (Code of Ethics and Professional Conduct, April 2017 of WHO).

Research is defined as the development of knowledge with the aim of understanding health challenges. This definition covers the full spectrum of research, which spans five generic areas of activity: 

1. measuring the problem; 

2. understanding its cause(s); 

3. elaborating solutions; 

4. translating the solutions or evidence into the policy, practice and products; and 

5. evaluating the effectiveness of proposed health solutions.

It is sequel to such strict research conditions that the WHO had prescribed that both burial and cremation are safe. As such there was no reason at all for anyone to doubt the recommendations of the WHO.  But, only in Sri Lanka, the WHO guidelines were not followed. A very unusual challenge coming from a developing country which does not have the benefit of diverse and cumulative specialist knowledge as that of the WHO.  Moreover, daring to do so, without any state-of-the-art laboratory research infrastructure and lacking the scientific knowhow in comparison to the WHO.

Unnecessary Change 

This was the beginning of the sinister plot, as the narrative reveals, which has unfolded itself in its fullest form.  Something that was not conspicuous at the time it was hatched early last year. The Quarantine and Prevention of Diseases Ordinance No.3 of 1897 under Section 3. (1) states, “The regulations made under section 2 may provide amongst other things—

“for prescribing the mode of burial or cremation of any person dying of disease;” vide Section 3 (1) (i).  

Reportedly, the first action in the plan was to amend the regulation under the Section 3 (1) (i) of the Ordinance.  The Ordinance clearly stated that the mode of disposal can be prescribed as burial or cremation. It is important to bear in mind that if the WHO guidelines for burial had been followed, there would have been no need to amend the law. This whole drama would not have then evolved.  What happened, however, was the hush, hush and hurried amendment to the law.  An amendment which was diametrically opposed to the WHO recommendation which permitted burial.  An amendment to the law which was unnecessary and making it mandatory to cremate Covid 19 infected dead bodies.

The reason adduced for this mandatory cremation was the ‘possibility’ of ground water contamination via the Covid 19 virus, if burial is allowed.  It sounded a fair and reasonable judgment at that time. The public was ignorant and they prima facie believed the advice of our local experts to be correct and done with integrity.  Though the benefit of expert knowledge in relation to the relevant areas of a pandemic namely, epidemiology, immunology, virology and hydrogeology were not in hand at the time.

Prick Of Conscience

Who is to be blamed for this unprofessional, unsubstantiated and disastrous decision? Can only a single person or authority be held responsible? Are several people responsible? Has there been a lapse in executive action from the side of the government? Those engaged, directly or indirectly, in making a mountain of this molehill are in a better position to apportion the blame. Their conscience will keep pricking them for the injustice perpetrated against an entire community of innocent people who have been forced to cremate their dead. 

From a Public/Administrative law point of view, can this be considered a gross abuse of authority. Can there be a judicial review challenging the administrative act of amending the regulations, as ultra vires, on several grounds for example, that they have failed to take into account relevant considerations, etc.  Delictually, can this be a case for damages for misfeasance in public office against those responsible? Or, even for malfeasance, for that matter. It was held, "’Misfeasance in public office' was concerned with a deliberate and dishonest wrongful abuse of the power given to a public officer and the purpose of the tort was to provide compensation for those who suffered loss as a result of improper abuse of power.” (Three Rivers District Council v. Bank of England reported in (1996) 3 All ER 558).  In Administrative Law by Sir William Wade, 8th Edn. (page 765) "misfeasance in public office" has been defined inclusively as malicious abuse of power, deliberate mal-administration and other unlawful acts causing injury.”

The State Minister of health is reported in the media stating that the Covid 19 is a new disease and that initial recommendations made by the WHO are subject to change with new emerging evidence. Excellent!  Since last year, the initial recommendation of WHO was that burial was not harmful, why was the law changed without following guidelines which said burial is safe?  After the lapse of one year, still that same recommendation is in effect and why has it not been followed in Sri Lanka?  Where is the logic in what the State Minister is saying?  Or, is it that WHO recommendation is followed only when it is convenient?

Bogus One Country One Law 

There is then this often-bandied statement by the venerable monks that the decision to bury or cremate must be taken based on scientific evidence and not as per any religion.  No Muslim ever asked the government or the health authorities to ignore scientific evidence and give preference to religion. If tomorrow the WHO states that burial is harmful and cremation is the only way to dispose COVID 19 dead bodies, the Muslims will have no objection.  They would accept such guidelines for the greater welfare of the living persons.  The problem is when burial is safe and recommended, why has it been denied.  Then there is something wrong, somewhere.

The irritation of the politicians and venerable monks, pseudo actors of nationalism, making a noise about one country one lawis unbearable.  What a nonsensical and utterly ignorant claim is this?  Look at the major laws of this country.  The Constitution of this country which is the supreme law governs everyone.  Did the Muslims ask for a separate constitution? The Penal Code of this country which is the body of substantive criminal law is applied to everyone.  Did the Muslims ask to be governed by the Sharia criminal law?  The corpus of Civil Procedure Code and the Criminal Procedure Code are the procedural laws of this country which everyone follows. Did the Muslims ask for the application of Islamic procedural laws?  Each move that is taken or the words that are spoken exposes their ulterior motives.  By doing so, they clearly demonstrate their bias, prejudice and hate towards the Muslim community.

What is the primary objective in the minds of these people?  Is it to destroy the Muslims or the development and future prosperity of this nation?  If the former is the intent, then the latter will never be achieved.  No country has developed when its citizens are disunited and are at the throats of each other.  What will be sure is continued bloodshed, racial riots, death and destruction.  Every time this happens, the economy takes a hit. With the economic situation so fragile and vulnerable, this nation cannot afford internal instability. Is this the path that the venerable monks and politicians want to tread?  

President, Act Now

The majority of the people in this country must make their voice heard against moving on this path.  This is not a Muslim issue; this is a national issue which has got internationalised. Our country is going back in time and our progeny will curse us for what they would inherit. 

It is nauseating to see some professionals behaving like ignorants and some monks and politicians speaking like experts.  Mr. President, the WHO guidelines permitting burial as safe is already available.  The College of Community Physicians of Sri Lanka and the Sri Lanka Medical Association have clearly given their recommendations.  The recommendations of several other internationally acknowledged Sri Lankan experts in the field have stated that burial is safe.  

This waiting game must stop before more bodies get burnt.  There is no need to wait for any so called ‘expert’ committee decision or report.  The evidence is clear and you have the authority.  It is time that you just take a firm decision, in your capacity of the Executive President of this country, permitting burial. Here is an opportunity for you to display Statesmanship.  Already, one year has passed under your watch, it is time that you focus on moving forward with more important priorities of the country.

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