Systematic discrimination and human rights violations against minority communities in Sri Lanka are not new in the country’s political and social realm. The most recent of such violations have been brought to the forefront during the outbreak of the Coronavirus pandemic, exposing the state’s skewed practices in its wake. This will be an endeavor to examine how a purely ‘tolerant’ (in its classical sense) society is ultimately an unrealistic and moreover destructive, standard to strive towards. By analyzing various viewpoints on what ‘tolerance’ truly means, within the context of Sri Lanka’s treatment of its religious minorities, the ideology itself comes to scrutiny. A system of checks and balances is pertinent by both state and non-state actors for the survival of a society and the ultimate protection of the religious minorities in a country where they are routinely marginalized and discriminated against, specifically in the context of the rise of religious intolerance faced by the Muslims in Sri Lanka, illustrated by the unjust prevention to carry out the final rites of burial of COVID-19 related deaths in accordance with the deceased’s beliefs and the forcible cremation on the instruction of the authorities against the wishes of the deceased’s families.
The True Meaning of Tolerance
The word tolerance comes from the Latin word tolerantia, which means the ability to bear pain. Its more contemporary usage means a fair, objective and permissive attitude towards those whose opinions, beliefs, practices, racial or ethnic origins etc., differ from one’s own. It refers to freedom from bigotry. The evolution of this meaning shows a shift in what it truly means to ‘be tolerant’; the contemporary term now seems to be interpreted to mean to conceal and bury the existence of opinions and behaviors that one does not agree with. Accordingly, Wendy Brown in Regulating Aversion states that to tolerate is not to affirm but to conditionally allow what is unwanted or deviant, and maintains that tolerance is “governmentality”. This is a word coined by philosopher Michel Foucault and refers to how governments try to produce citizens who will act on and fulfill the governments’ policies. Therefore, “governmentality” is a dead-end for tolerance and produces a hierarchy where the powerful or the majority dictate the terms of tolerance and the weak or those in minority are forced to accept them. Tolerance is thus only the beginning of the end. It is evident that societies need to move from tolerance to a more pragmatic approach in order to survive in today’s pluralistic world.
Karl Popper’s Theory of Tolerance
Karl Popper’s theory on the paradox of tolerance explains that in order to survive, intolerant ideas, notions and practices cannot be accepted. Unlimited and universal tolerance in a society also reinforces dominant norms, ideas and actions which are blatantly intolerant. These are usually depicted in a country where religious minorities are often marginalized. Should a line be drawn between what is tolerable and what is submissive?
Karl Popper’s theory of tolerance depicted the seemingly paradoxical idea that,
“In order to maintain a tolerant society, the society must be intolerant of intolerance.”
This idea works by defeating such intolerance in the sphere of public debate. In the words of Karl Popper,
“Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed and tolerance with them…We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant.”
The Rise of Religious Intolerance
The Constitution of Sri Lanka guarantees freedom of thought, conscience and religion and the freedom to adopt a religion or belief of choice, not subject to any restrictions (guaranteed in Article 10 of the Constitution). However, the rise of religious intolerance in Sri Lanka by state and non-state actors, continues in the face of these constitutional rights.
This pattern of systematic discrimination seems to follow from the aftermath of the Easter Sunday bombings in April 2019, which included an onslaught of violent attacks on Muslim homes, places of worship and shops, as well as an economic boycott of Muslim-owned businesses and halal products, along with criticism of Muslim women adopting the burka or niqab. Following the attacks, many Muslims hindered themselves from public places for fear of their own safety and consequently proceeded to lay low for months. This supports the aforesaid theory that unlimited and unchecked tolerance can lead to the extinction of tolerance. The intolerant groups in Sri Lanka have been seen to inevitably take advantage of the lack of restrictions placed upon them and thus practice oppression and persecution openly. The remaining members of the society or the tolerant individuals, therefore, have no means to protect themselves or fend off such groups with unchecked freedom. Unsurprisingly, this is thought to lead to the eradication of the remaining tolerant members of the society, along with the concept of tolerance itself. Popper contends that, as paradoxical as it may seem, if a society is to defend tolerance, it must not tolerate the intolerant i.e. discrimination and oppression. He also contends that societies are required to ensure human rights reforms, transitional justice, accountability and reconciliation to truly strike a balance between the two ideals.
There remain substantial gaps in terms of legal action against perpetrators of religious violence and discrimination, particularly state actor interventions violating constitutional guarantees. This is despite the fact that Sri Lanka’s Constitution guarantees the right to equality, non-discrimination and freedom of religion and religious worship, highlighting an inalienable right, not subject to any restrictions. Hence, it can be seen that an excess of tolerance leads to decadence (in its classical sense), a multiplicity of acceptable standards at odds with each other. It is essential for a society to function to have core values, hence, toleration cannot be the unifying idea in a society.
State Actor Involvement as Perpetrators
Societies are obliged to not be complicit through inaction and indifference because inaction permits intolerant behavior. However, this may be avoided by drawing a line of constraint determined by the measure of complicit inaction at hand. Any movement that preaches intolerance and persecution must fall outside of the law, however, state actors continue to be complicit in the violations of freedom of religion or beliefs against minorities in Sri Lanka.
Violations Committed in the Name of ‘Public Security’
The right to manifest a religion or belief guaranteed under Article 14(1)(e) of the Constitution is subject to Article 15 (7) of the Constitution which states that such rights granted can only be restricted by law, including ‘regulations made under the law for the time being relating to public security’. The question then remains as to what constitutes public security.
Generally, public security may be achieved when public institutions can increase transparency by enhancing an open and democratic society, which promotes good governance by reviewing public interest. Public interest does not have a rigid meaning. It is an elastic concept and varies according to the time and state of the society. A wide definition, however, may include the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake. In order to preserve both public and private interests in Sri Lanka, the society’s religious freedoms are required to be respected and not restricted or violated. While restrictions to protect public security are necessary, public institutions are required to examine whether such restrictions are compatible with the relevant constitutional provisions and international human rights legislation such as the Universal Declaration of Human Rights (UDHR). Having different views on issues such a religion, politics and society (and the right to voice them publicly) should be tolerated in society, as long as the actions of political or religious groups do not lean towards hatred, discrimination, persecution and violence.
On March 27, 2020, the Ministry of Health and Ceylon College of Physicians coordinated by the epidemiology unit of the Ministry of Health issued a document titled the Provincial Clinical Practice Guidelines on COVID-19 Suspected and Confirmed Patients, which permitted both cremation and burial of suspected and confirmed COVID-19 patients.
However, on April 11, 2020, Gazette Notification No. 2170/8 was published, stating the following:
“Cremation of corpse of a person who has died of Coronavirus Disease 2019 (COVID 19) –
Notwithstanding the provisions of regulation 61 and 62 (Quarantine and Prevention of Diseases Ordinance chapter 222), the corpse of a person who has died or is suspected to have died of COVID-19 shall be cremated.’’
The abovementioned law was made on the direction issued by the Director General of Health Services (DGHS) on or about March 31, 2020 in the absence of conclusive scientific evidence, followed by the Supreme Court dismissing different fundamental rights petitions, without any reasons, thus making it the law of the land. Such a law is in direct conflict with the Muslim belief of cremation being prohibited in the Islamic faith and considered “a violation of the dignity of the human body” instead. Muslims, like Christians, believe in the resurrection of the physical body and thus consider cremation to be prohibited. On the other hand, there is no explicit objection to the practice of cremation in Christianity.
Up until March 30, 2020, the Ministry of Health listed burial as a safe option for COVID-19 victims. The World Health Organization (WHO) has also listed burial as a viable option for COVID-19 infected bodies worldwide and has provided safety measures to be followed in the process. The guideline further provides that the disposal of dead bodies should be approached with cultural sensitivity. Several countries with death rates higher than Sri Lanka are continuing to bury their COVID-19 victims who have passed. The Government Medical Officers Association in Sri Lanka has also stated that the WHO guidelines and the Quarantine Act allow the option of both cremation and burial. Accordingly, the DGHS recommendation appears to be redundant and without scientific proof and, therefore, appears to lack any legitimacy. Cremation of those who have died or suspected to have died of COVID-19 is neither necessary nor proportionate to the achievement of protection of public healthcare or public interest, so it does not appear to be a permissible restriction to the freedom to manifest religion or beliefs and is in contravention of Article 14(1)(e) of the Constitution.
In this regard, the abovementioned Gazette must be construed justly, which is further illustrated by the celebrated Latin maxim, lex injusta non est lex (an unjust law is no law at all). Where the provision of a law or a rule is construed in such a way that it is consistent with the Constitution and another interpretation would render it unconstitutional, a court would lean in favour of the former construction.
It may be argued that the right to bury, cremate or donate the body of a loved one shall not be the state’s choice but remain a fundamental human right. This concept may be transplanted from the provisions laid out in the 1949 Geneva Convention which states that the dead must be ‘respected’ and ‘protected’ during international or non-international armed conflict. It may be prudent to apply the protection afforded by international humanitarian law (IHL) to COVID-19 related deaths as this pandemic, without a doubt, falls into the category of a humanitarian crisis.
Some Muslims have resolved not to give their consent to cremate their loved ones who have died of COVID-19 in Sri Lanka due to their conviction that they do not want to be party to such a sinful act (according to their faith) while some cannot afford to pay LKR 58,000 for the coffin and cremation costs, as mosques usually bear the costs of burial. This has led to many unclaimed bodies of COVID-19 victims and we have also seen families being forced to abandon their own dead to protect their beliefs and traditions. The Colombo Municipal Council has begun cremating the bodies of unclaimed victims after obtaining legal clearance from the Attorney General. So not allowing burials is having a negative effect on social cohesion. More importantly, it can also adversely impact the measures for containing the spread of the virus as it may discourage people to access medical care when they have COVID-19 symptoms or have been in contact with those who have tested positive for the virus. The negative consequences of not allowing burials seem to outweigh any potential epidemiological benefits.
The Right to Self-Preservation and the Rule of Law
John Rawls has concluded in A Theory of Justice that a just society must tolerate the intolerant, otherwise society would then itself be intolerant, thus unjust. However, Rawls has qualified this with the assertion that under extraordinary circumstances in which constitutional safeguards do not suffice to ensure the security of the tolerant and the institutions of liberty, tolerant societies have a reasonable right of self-preservation against acts of intolerance and oppression which limit the liberty of others under a just constitution. He contends that this supersedes the principle of tolerance. The abovementioned acts by Muslims boycotting cremation bring Rawls’ theory of self-preservation in light of injustices to life. Since a perfect society is more or less impossible, a strict rule of law must exist. The rule of law should include this right of self-preservation as discussed by John Rawls, including protection of oneself from harm or destruction when defending against acts of intolerance.
Muslims in Sri Lanka argue that the abovementioned Gazette ensures that there is no dignity in the death of their loved ones as the new law prohibits them from conducting the four essential obligations prescribed by their faith, which include bathing, dressing, praying for and burying the dead bodies. In the words of Rawls,
“The most stable conception of justice… is one that is perspicuous to our reason, congruent with our good, and rooted not in abnegation but in affirmation of self.”
However, Rawls’ theory regarding ‘justice as fairness’ has been dismissed in a society where Sri Lanka’s Muslim community has been stripped of self-respect and dignity as this religious minority does not seem to hold equal basic rights as the rest of the society.
The Way Forward – If Not Tolerance, Then What?
In order to put the abovementioned theories into practice, law enforcement agents and state actors must act immediately against perpetrators who are inciting violence against religious minorities and should withdraw any circulars issued which lack validity and are oppressive towards minorities. This should be done by publicly voicing opposition to religious intolerance in Sri Lanka. Moreover, the promotion and protection of minority religious communities should be safeguarded in the ongoing constitutional reform processes. Equal application of the relevant legal frameworks must also be ensured to safeguard the rights of religious minorities in Sri Lanka.
Despite the huge outcry by international organizations, Sri Lanka continues to be one of the few countries in the world to have made cremation mandatory for those who have died or suspected to have died of COVID-19. The reality, as discussed, goes deeper than the situation at hand. Sri Lanka has an image of practicing ‘universal tolerance’ and handling a pluralistic society utilizing this approach is highly ineffective, if not ignorant. A holistic approach needs be taken to put an end to religious discrimination in Sri Lanka, taking into account social, economic, political and other factors that contribute to intolerance, inevitably breaking this skewed psyche of ‘tolerance’ for good.
Tolerance no longer has a blessed status in societies. Instead, it has been revealed to be operating as a tool of governance, power and subject production. Unlimited tolerance or submission in Sri Lanka by the minorities has allowed public institutions to victimize a portion of the nation, thus straining their fundamental values overall which are important for the long-term endurance of such tolerant societies. It is important for such societies to lower their threshold of tolerance for what is unfair, unreasonable and arbitrary, as ‘unlimited tolerance leads to the disappearance of tolerance’. In the context of ongoing violations against religious minorities in Sri Lanka, a balance must be struck. Tolerance may not be a virtue to aspire to, even when practised in degrees and not absolutes.
An earlier version of this article appeared online. Republished here with permission.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.