[UPDATED] Appeal Court blanks daughter of covid19 fatality over open-pyre cremation

AN APPEAL Court judge has refused permission to the daughter of a covid19 patient to cremate her father in an open-air pyre cremation at the Waterloo cremation site as he wanted.

In decision delivered on Friday, Justice of Appeal Malcolm Holdip denied Cindy-Ann Ramsaroop-Persad’s application to include the Ministry of Health in her challenge of the guidelines for funeral agencies which banned open-air pyre cremations for patients who died from covid19.

Ramsaroop-Persad had also asked for an order directing the Commissioner of Police to grant her a permit to cremate her father in an open-air pyre cremation. This was denied, as she has already cremated her father in a closed-cremation setting on August 10.

In his ruling, Holdip said, “We are in the midst of a terrible pandemic and the health and safety protocols in place seek to protect citizens from the ravages of the pandemic.

He said he relied on the reasoning of a Canadian decision (Beaudoin v British Columbia 2021) on the covid19 constitutional challenge.

“I have found guidance from this case which speaks to no fault of government officials in implementing health and safety protocols and guidelines during a pandemic where there is an outbreak of an infectious disease.

“There is no constitutional breach of individual’s religious rights.”

Holdip agreed to Ramsaroop-Persad’s application for her appeal to be deemed fit for urgent and expedited hearing. It will be heard as a substantive appeal on November 22.

Ramsaroop-Persad’s judicial review and constitutional claim will also come up for hearing on November 15, before Quinlan-Williams.

On August 3, Quinlan-Williams granted her permission to challenge the commissioner's decision not to grant the permit. She was denied permission to include the minister in her lawsuit on the basis that it raised no arguable ground for success, since the guidelines do not have the force of law and required voluntary compliance.

Ramsaroop-Persad was, however, allowed to pursue her constitutional claim for declarations that her rights were infringed by the ban. She is also seeking a declaration that the ban is unconstitutional. The court's permission is not required in constitutional claims.

Ramsaroop-Persad’s father, Silochan, 77, died at the Couva Hospital and Multi Training Facility on July 25. His death certificate said he died of covid19 pneumonia, covid19 infection, hypertension and Type II diabetes.

The police initially gave the family a permit for his final rites at Waterloo, but this was later rescinded. The family was told it had to be revoked because of the ban on open-air pyre cremations for covid19 deaths. Open-air pyre cremations are allowed for those who did not die of covid19.

In support of her lawsuit, Ramsaroop-Persad said her father, a religious man, wanted to be cremated at the Waterloo site and his dying wish was for the rituals for Hindu cremations when he died.

She is claiming there appeared to be a blanket prohibition against open-air pyre funerals.

“The unfair and discriminatory effect of this ban is obvious as Hindus cannot cremate their dead in accordance with their religious belief and practice,” the lawsuit said.

She is also alleging that her constitutional rights are being breached by the prohibition, which she also alleges is arbitrary, irrational and unfair.

Her lawsuit says the measure disproportionately affects the Indian and Hindu community.

Ramsaroop-Persad is represented by attorneys Anand Ramlogan, SC, Jayanti Lutchmedial, Vishaal Siewsaran, Renuka Rambhajan, Natasha Bisram and Cheyenne Lugo.

The State is represented by Senior Counsel Fyard Hosein, Rishi Dass, Tenille Ramkissoon, Sarah Sinanan, Kadine Matthew and Janine Joseph,

Ramsaroop-Persad’s claim included an expert opinion by Dr Farley Cleghorn, a Trinidadian epidemiologist based in Washington, DC, who said he believes the risks from handling the bodies of covid19 cases after death “are vanishingly low.”

He said elsewhere in the world, including India, open-pyre cremations were not banned.

Cleghorn said there were international guidelines on open-air cremations, and no data to suggest a risk of the virus being transmitted by smoke or ashes. In fact, he said, open-air cremations “may actually be less risky” than indoor cremations.

However, in his ruling, Holdip pointed to submissions by the State that the ministry’s guidelines for funeral agencies were under constant review.

He said Quinlan-Williams did not fall into error when she refused to give permission to challenge the guidelines, agreeing that they did not form part of any law and were not capable of being judicially reviewed.

“Despite the independent expert advice which stated that the risk exposure for the covid19 virus was actually higher in an indoor crematorium, the learned trial judge exercised her discretion in considering the evidence before her in arriving at her decision.

“In fact, the learned trial judge gave a decision in line with the seriousness of the covid19 pandemic and health protocols in place to prevent the further spread of the deadly virus.”

Holdip said he also took note of the alleged hardship Ramsaroop-Persad said she suffered by not being able to cremate her father in an open-air pyre cremation.

“This court notes the emotional distress and financial strain of the appellant during this covid19 pandemic, and notes that the experience has been similar to all persons worldwide.

“Whilst, the issues raised in this case are of fundamental public importance and have affected the Hindu community, this court is of the firm view that the appellant’s individual rights cannot outweigh the rights of the entire community at large.

“Community interest and the preservation of the health of the society have to take precedence. The public interest remains paramount in times of a dangerous infectious disease which is currently mutating into different strains of the virus.”

He also said he also considered and found credence in the State’s arguments that if Ramsaroop-Persad’s requests were granted, it would “open up a floodgate scenario in every instance where a cremation authorisation is refused.”

Ramlogan submitted that the issue affected the Hindu community, which accounted for almost 20 per cent of the population in TT.

He also submitted because of the backlog of bodies at funeral homes for cremating covid19 fatalities, Ramsaroop-Persad had to spend almost $300 a day for her father’s body to be kept refrigerated.

On Thursday, officials of the Sanatan Dharma Maha Sabha (SDMS) and their attorneys met with a team from the Ministry of Health to discuss the ban on open-air pyre funerals.

Speaking after the virtual consultation, SDMS attorney Dinesh Rambally said the Hindu group was yet to be given a reason for the ban.

“We are saying there is no science to support the implementation and the continued enforcement of the public health regulations which restrict open pyre funerals. Whilst we understood that there was some other science behind the other protocols, this is one that we took the position that we need to know what is the science,” Rambally said.

He also said the SDMS was willing to take the matter to court if the ministry failed to provide a response by next week Friday.

Acting secretary general of the SDMS Vijay Maharaj said the organisation supported the Government in the implementation of all its public health regulations, but said the ministry could not continue to ban open-air pyre funerals without any justification.

“The Government has relied on the advice of the World Health Organization. and yet we are not discussing with the Hindu community,” he said.

This story has been adjusted to include additional details. See original post below.

AN APPEAL Court judge has refused to grant permission to the daughter of a covid19 patient who sought an order which would allow her to cremate her father in an open-air pyre cremation at the Waterloo cremation site as he wanted.

In decision delivered on Friday, Justice of Appeal Malcolm Holdip denied Cindy-Ann Ramsaroop-Persad’s application to challenge the Ministry of Health’s guidelines for funeral agencies which banned open-air pyre cremations for patients who died from covid19.

Ramsaroop-Persad had also asked for an order directing the Commissioner of Police to grant her a permit to allow her to cremate her father in an open-air pyre cremation. This was denied, as she has already cremated her father in a closed-cremation setting on August 10.

Holdip agreed to her application for her appeal to be deemed fit for urgent and expedited hearing. Her appeal will be heard as a substantive appeal on November 22.

Ramsaroop-Persad’s judicial review and constitutional claim will also come up for hearing in November, before Justice Avason Quinlan-Williams.

On August 3, Quinlan-Williams granted Ramsaroop-Persad permission to challenge the ban on open-air pyre cremations.

Ramsaroop-Persad’s father, Silochan, 77, died at the Couva Hospital and Multi Training Facility on July 25. His death certificate said he died of covid19 pneumonia, covid19 infection, hypertension and Type II diabetes.

The police initially gave the family a permit for his final rites at the Waterloo site, but this was later rescinded. The family was told it had to be revoked because of the ban on open-air pyre cremations for covid19 deaths. Open-air pyre cremations are allowed for those who did not die of covid19.

The judge did not grant Ramsaroop-Persad’s application for interim relief – to direct the CoP to issue a cremation permit in 24 hours so the family could have an open-air pyre cremation,

In support of her lawsuit, Ramsaroop-Persad said her father, a religious man, wanted to be cremated at Waterloo and his dying wish was for the rituals for Hindu cremations when he died. She said she assured him she would see his wish was honoured.

In the lawsuit, Ramsroop-Persad is claiming there appeared to be a blanket prohibition against open-air pyre funerals.

“The unfair and discriminatory effect of this ban is obvious as Hindus cannot cremate their dead in accordance with their religious belief and practice,” the lawsuit said.

She is also alleging that her constitutional rights are being breached by the prohibition, which she also alleges is arbitrary, irrational and unfair.

Her lawsuit says the measure disproportionately affects the Indian and Hindu community.

Ramsaroop-Persad is represented by attorneys Anand Ramlogan, SC, Jayanti Lutchmedial, Vishaal Siewsaran, Renuka Rambhajan, Natasha Bisram and Cheyenne Lugo.

The State is represented by Senior Counsel Fyard Hosein and Rishi Dass.

Ramsaroop-Persad’s claim includes an expert opinion by Dr Farley Cleghorn, a Trinidadian epidemiologist based in Washington, DC, who believes the risks from handling the bodies of covid19 cases after death “are vanishingly low.”

He said elsewhere in the world, including India, open-pyre cremations were not banned.

On Thursday, the Sanatan Dharma Maha Sabha met with officials from the Minister of Health to discuss open-air cremations and the effect of the ban on the Hindu community.