Court allows lawsuit against open-air cremation ban for covid19 vicitms

THREE Appeal Court judges have given permission to the daughter of a covid19 victim to challenge guidelines issued by the Minister of Health which prohibits open-air pyre cremations for those who died of the virus.

In an oral decision, Justices of Appeal Gregory Smith, Mark Mohammed and Ronnie Boodoosingh allowed the appeal of Cindy-Ann Ramsaroop-Persad and granted her leave to file a claim for judicial review against the cremation guidelines.

On August 3, Justice Avason Quinlan-Williams granted her permission to challenge the Police Commissioner's decision not to grant a permit for the cremation but was denied permission to include the minister in the lawsuit.

The judge held that Ramsaroop-Persad's application against the minister raised no arguable ground for success since the guidelines did not have the force of law or require voluntary compliance.

Ramsaroop-Persad was, however, allowed to pursue her constitutional claim for declarations that her rights were infringed by the ban.

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The police initially gave the family a permit for his final rites at Waterloo, but this was later rescinded.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.

He was eventually cremated at a funeral home but Ramsaroop-Persad said her father, a devout Hindu, wanted to be cremated at the Waterloo site and his dying wish was for the rituals for Hindu cremations when he died.

In resisting the appeal, Senior Counsel Fyard Hosein argued that the challenge to the policy was not based on law. He said the minister was not the decision-maker in this case, but the police.

According to Hosein, the police did not have to consider the minister’s position on open-air pyre cremations for covid19 victims.

Hosein said the State had no issue with Ramsaroop-Persad’s constitutional challenge but was of the opinion that the police had the power to withdraw the permit.

Ramlochan-Persad’s attorney Anand Ramlogan, SC, argued his client’s challenge related to rationality and fairness which were enforceable under the Judicial Review Act. It was his position that the guidelines set out a ban that was disproportionate, adding that public policy was amenable to judicial review.

“The question here is, was the Minister of Health acting in a fair manner. Can it be said he is if he imposes absolute ban in name of covid, in a multi-religious society which has a disproportionate impact on the Hindu community?”

Ramlogan said covid19 cases, at present, were going up and there was no scientific or medical justification for the ban.

“The court has a duty as the guardian of the Constitution to consider the matter. Is it a solid justification or credible or fair?”

He said a more proportional response would be to allow further numerical restrictions or more distancing from the pyres rather than an outright ban to open-air pyre cremations, especially since in these cases the caskets remain sealed.

In granting leave and sending back the case to Quinlan-Williams, Boodoosingh said the court noted that although Ramsaroop-Persad’s application was filed in August, “everyday” people are dying from covid19.

He said the decision impacted a wide section of the national community and considered the matter should receive expeditious attention and decided in the “shortest possible time.”

The court suggested the trial judge make the necessary arrangements for the matter to be given priority over other cases.

Ramsaroop-Persad is also represented by attorneys Jayanti Lutchmedial, Vishaal Siewsaran, Renuka Rambhajan, Natasha Bisram, Ganesh Saroop and Cheyenne Lugo.

The State is also represented by Rishi Dass, Tenille Ramkissoon, Sarah Sinanan, Kadine Matthew and Janine Joseph.

The parties are now required to inform Quinlan-Williams of the Appeal Court’s ruling for directions to be set for the hearing of the substantive claim.