FOR some five months, the Government’s covid19 guidelines on open-air pyre cremations were unconstitutional and became discriminatory against the Hindu community, a High Court judge has said in a written decision.
On February 27, Justice Avason Quinlan-Williams provided her written ruling on a lawsuit filed by the daughter of a covid19 victim who had challenged the 2020 guidelines for funeral homes at the height of the pandemic in 2020.
In the decision, Quinlan-Williams held that after considering all the evidence, she found as a fact that the guidelines for hospital staff and funeral agencies “were made to be and were treated to be prohibitions on open-air pyre cremations.”
She also held that the police, at the time, held the belief they were prohibited from permitting open-air pyre cremations.
“The court was satisfied that by August 2021, any ban on open-air pyre cremations was no longer proportionate and would have been unconstitutional,” she said as she ruled that Cindy Ann Ramsaroop-Persad’s rights to protection of the law were breached.
She said while the Health Ministry and the chief medical officer, when preparing and implementing the guidelines, were “good intentioned,” the effect of the guidelines after August 2021 became discriminatory against the Hindu community.
“There was no longer any justifiable reason for prohibiting open-air pyre cremations.” She said after the CMO’s scientific justification for the ban was debunked, it could not be said that keeping the guidelines beyond August 2021 was for the general welfare of society.
She said the “ban” on open-air pyre cremations became irrational by August 2021.
Although Ramsaroop-Persad sought damages for the breaches, the judge declined, saying declarations were sufficient to meet the unconstitutionality found in the case.
She also held that although the guidelines were not law, nor were they contained in the covid19 regulations or public health ordinance, they had the effect of prohibiting open-air pyre cremations.
“The guideline did not contain advisory terms…(but) communicated a mandatory instruction.”
She also said while she appreciated that the decisions behind the guidelines were made in April 2020, when the science was new and evolving, the CMO and the Health Minister “remained steadfast in their position taken in early 2020 that open-air pyre cremations should not be permitted.”
She said after the public outcry from various sectors, including the Hindu community through the Sanatan Dharma Maha Sabha (SDMS), the Government could have publicly said the guidelines were not a “ban.” Instead, she said, Ramsaroop-Persad was given a “convoluted response.”
She said it was not until January 13, 2022, that the Government said it had no objection to the grant of permits for such cremations. This decision was taken after a meeting with the Attorney General and the SDMS.
“Whether a less intrusive measure could have been used? The evidence points to a conditional yes. The condition is the date; after a certain date, less intrusive
