Senior Reporter
derek.achong@guardian.co.tt
A short-lived policy banning open-air cremations for COVID-19 victims during the pandemic has been deemed unconstitutional.
High Court Judge Avason Quinlan-Williams issued the declaration when she upheld a constitutional lawsuit brought by Cindy-Ann Ramsaroop-Persad in late July, last year. However, Justice Quinlan-Williams only yesterday issued a written judgment, in which she detailed the reasons for her previous decision.
The case was filed by Ramsaroop-Persad in August 2021 after her father, Silochan Ramsaroop, passed away five days after being admitted to the Couva Medical and Multi-Training Facility, two months earlier.
Ramsaroop-Persad’s brother applied at the Chaguanas Police Station for a permit for their father to be cremated at the Waterloo Cremation Site and it was granted.
However, hours later, a police officer contacted the family and claimed that the permit was revoked as it was issued in error because of the ongoing prohibition against open-air pyre cremations for COVID-19 victims.
As part of the lawsuit, Ramsaroop-Persad’s legal team relied on the evidence of several international medical experts including epidemiologist Dr Farley Cleghorn, who claimed that the policy was unnecessary.
They also claim that the policy was not supported by the World Health Organization (WHO) or the United States Centers for Disease Control and Prevention, whose advice the ministry and by extension the Government has been relying on during the ongoing pandemic.
In response to the lawsuit, the State has relied on the evidence of Chief Medical Officer Dr Roshan Parasram, who claimed that an average pyre does not completely destroy a human body and that the eruption of bodily fluids from corpses presents “an uncertain risk” to mourners at an open-air cremation.
The Sanatan Dharma Maha Sabha (SDMS) also filed a similar lawsuit as the policy mainly affected Hindu citizens. However, it withdrew its case in January 2022, after the policy was abandoned following a meeting with then attorney general Faris Al-Rawi.
In determining the case, Justice Quinlan-Williams rejected claims from state attorneys that the policy was not an outright ban, as it was contained in guidelines to hospital staff and funeral agencies and not in public health regulations that restricted citizens’ movements and ability to gather.
“While a guideline by its nature, ordinarily may not mean to have the force of law but advise on how something should be done the court disagrees that the Ministry of Health’s guidelines under consideration fall into that category,” she said.
“There is no alternative interpretation for the phrase ‘will not be’, but as a prohibition,” she added.
She noted that the senior police officer, who initially approved the cremation of Ramsaroop-Persad’s father, considered the guidelines when he reversed his decision.
“The failure of the defendants to bring any police officer to demonstrate that officers were willing to and/or was, in fact, issuing open-air pyre cremation permits despite the guidelines causes the court to draw an adverse inference,” she said.
She also noted that Parasram repeatedly referred to the policy during press conferences.
“The CMO actively participated in bringing this information to the public whatever his personal views about the meaning of the guidelines were,” she said.
While Justice Quinlan-Williams noted that the policy would have been justifiable when the pandemic began in 2020, she said it could not be after August 2021 when Ramsaroop-Persad filed the case and presented evidence from medical experts challenging it.
“By then the restriction became decreasingly connected in a rational manner to curbing the spread of COVID-19, since there had been no confirmed cases of transmission from handling COVID-19 decedents,” she said.
“It was no longer necessary to ban open-air pyre cremations. Instead, guidelines, this time, in the normal meaning of the word, were required as how open-air pyre cremations were to be performed.”
The judge also noted that Ramsaroop-Persad’s experts unanimously found that there was a higher risk of mourner-to-mourner transmission in a funeral home as opposed to a cremation site.
“The experts debunked the references relied on by the CMO in support of the ban to show that there was no real scientific basis to prevent open-air cremations,” she said.
Justice Quinlan-Williams pointed out that Ramsaroop-Persad and others who were subject to the policy were deprived of an opportunity to perform their religious duty and were forced to incur the costs of using a crematorium which were double that of an open-air cremation.
“This court finds that the policy ban, after August 2021, failed to strike any balance at all, let alone a fair balance between the rights of the individual and the interests of the community,” she said.
“There was no real risk associated with conducting open-air pyre cremations but the consequences of restricting such was dire on the public, more so the Hindu community.”
While Ramsaroop-Persad was seeking compensation as well as a declaration against the policy, Justice Quinlan-Williams only granted the latter.
“The court is satisfied that the declaration made, is sufficient to meet the unconstitutionality found in this case and makes no further orders in relation to any reliefs sought,” she said.
Ramsaroop-Persad was represented by Anand Ramlogan, SC, Renuka Rambhajan, Jayanti Lutchmedial, Vishaal Siewsaran, Jesse Rampersad, Natasha Bisram and Cheyenne Lugo.
The Minister of Health, Commissioner of Police and the AG’s Office were represented by Fyard Hosein, SC, Rishi Dass, SC, Tenielle Ramkissoon, Janine Joseph, Anissa Ali and Sarah Sinanan.
