Can Sri Lanka’s Muslim Families Sue Cabinet Minister Ali Sabry Over Forced Cremations? A Legal Roadmap
In Sri Lanka’s bitterly contested COVID-19 cremation policy, few government figures provoked as much anger among Muslims as Ali Sabry. As Minister of Justice from August 2020 to April 2022, Sabry was the cabinet’s most vocal defender of the mandatory cremation of all coronavirus victims—a policy that explicitly overrode Islamic burial rites and affected hundreds of Muslim families. Now, with the Supreme Court having declared that policy a grave violation of fundamental rights, those families are actively exploring avenues to sue Sabry personally. This article unpacks the constitutional and statutory provisions that could open the door to such legal action.
The Cremation Controversy
In April 2020, Sri Lanka’s health authorities ordered that all bodies of persons who died with or were suspected of having COVID-19 must be cremated, even if the deceased was Muslim and Islamic law requires burial. The government insisted the measure was a scientific necessity to prevent the virus spreading through groundwater, despite the World Health Organization stating that burials were safe. The Muslim community challenged the order before the Supreme Court in fundamental rights petitions, arguing it violated their freedom of religion. Ali Sabry, then Justice Minister, repeatedly assured Parliament and the media that the policy was legally sound and based on health advice, brushing aside objections as unscientific. He later admitted the government had received legal advice that the policy was flawed but still defended it, claiming his duty was to uphold cabinet decisions. Muslim families say his stance not only legitimised an unlawful measure but prolonged their agony.
The Supreme Court’s Landmark Finding
In a series of judgments culminating in late 2022, the Supreme Court held that compulsory cremation infringed Articles 10 (freedom of thought, conscience and religion) and 14(1)(e) (the right to manifest one’s religion in practice and observance) of the Constitution. The Court ordered the state to pay compensation of Rs 1 million to each affected family and directed the Attorney General to recover those sums from then Health Minister Pavithra Wanniarachchi, then Director General of Health Services Dr Anil Jasinghe, and other officials found personally responsible. Crucially, the Court declared that executive action unsupported by any lawful justification—and taken in reckless disregard of constitutional guarantees—attracts personal liability, not merely vicarious state liability.
Why Ali Sabry Could Be a Defendant
While Sabry was not named in the initial batch of petitions, several families are now considering a fresh fundamental rights application under Article 126 of the Constitution. Their theory is that Sabry’s own acts as Justice Minister—advising the Cabinet, directing state law officers, making public pronouncements that stigmatised Muslim burial customs, and facilitating the legal defence of the policy—amounted to “executive or administrative action” that independently violated their rights. To succeed, applicants would need to show that Sabry’s conduct fell within the scope of Article 126 and that he bears personal culpability.
Article 126: The Primary Gateway
Article 126(1) allows “any person” to apply to the Supreme Court alleging that a fundamental right has been infringed by “executive or administrative action.” Cabinet ministers are unquestionably part of the executive. The Supreme Court has consistently held that the phrase “executive action” includes decisions made in Cabinet, and that individual ministers can be named as respondents where their own acts contributed to the violation. The key hurdle is time: an application must ordinarily be filed within one month of the infringement. However, Article 126(2) grants the Court discretion to entertain a late application if it is “just and equitable.” Given the ongoing trauma and the belated public disclosure of internal legal advice, applicants may argue the clock effectively starts when they became aware of Sabry’s specific role, or that the violation was of a continuing nature because the policy was enforced from April 2020 until March 2021.
Fundamental Rights Provisions Engaged
An application would cite at least three constitutional guarantees:
· Article 10: freedom of thought, conscience and religion. Forced cremation prevents Muslims from fulfilling a core religious duty to bury the dead, striking at the heart of this freedom.
· Article 14(1)(e): the freedom, either individually or in community with others, to manifest religion in worship, observance, practice and teaching. A funeral rite is the quintessential act of “observance” and “practice.”
· Article 12(1): the right to equality before the law and equal protection. The cremation rule applied to all, but its burden fell almost exclusively on Muslims, while Buddhists and Hindus who normally cremate were unaffected—a discriminatory impact that arguably breaches the equal-protection guarantee as interpreted in Sri Lankan jurisprudence.
In addition, applicants could invoke Article 11 (freedom from torture or cruel, inhuman or degrading treatment), arguing that the forcible cremation of a loved one against the family’s most deeply held convictions constitutes degrading treatment. The Supreme Court has previously accepted that psychological suffering can cross the threshold of Article 11 in extreme circumstances.
Personal Liability of a Public Officer
The Supreme Court has repeatedly ruled that a public officer who acts mala fide (in bad faith), or with reckless indifference to constitutional norms, can be ordered to pay compensation from his own pocket. In Saman v. Leeladasa, the Court explained that the state’s vicarious liability does not shield an officer who is the “directing mind and will” of a violation. The 2022 cremation judgments applied this principle to Health Minister Wanniarachchi, holding that she pursued the cremation mandate despite knowing it lacked scientific and constitutional justification. For Sabry to be similarly liable, applicants would need to prove:
· He possessed actual knowledge (or wilfully ignored) that the policy violated religious freedom.
· He used his office to sustain the policy rather than to correct it.
· His public statements and legal advice directly influenced the continuation of the cremations.
Circumstantial evidence is strong. The Attorney General’s Department reportedly advised the Cabinet as early as December 2020 that the policy could not withstand constitutional scrutiny. Sabry, as the government’s chief law officer, was privy to that advice yet continued to defend the policy. Leaked documents and subsequent news reports suggest he argued internally that revoking the rule would expose the state to compensation claims, effectively prioritising fiscal concerns over fundamental rights. If proven, such a posture could meet the mala fide test.
Alternative Avenues: Tort Law and the Penal Code
Beyond the Supreme Court’s fundamental rights jurisdiction, families might explore ordinary civil suits in the District Court. A delictual claim for intentional infliction of emotional distress or breach of constitutional duty could be framed, though sovereign immunity and a two-year prescriptive period pose serious obstacles. Personal liability would again hinge on proof of bad faith.
On the criminal front, the Penal Code offers slim possibilities. Section 297 makes it an offence to trespass on a burial place with intent to wound religious feelings, but the state’s seizure and cremation of a body is not “trespass” in the classic sense. Section 290 (insulting religion or religious feelings) requires a deliberate and malicious act, which might be difficult to establish against a minister acting under the colour of public health directives. The more realistic route remains the constitutional remedy.
What the Families Would Need to Prove
A successful petition against Ali Sabry would have to establish:
1. His personal involvement: evidence that Sabry participated in Cabinet decisions, directed the legal defence, or made public statements that went beyond mere government communication and actively incited or perpetuated the violation.
2. Causation: that the violation would not have persisted but for his acts.
3. Fault element: knowledge or recklessness regarding the illegality. Internal memos, Cabinet minutes, and testimony from other officials will be critical.
4. The continuing nature of the harm: to overcome the one‑month limitation period, applicants will emphasise that each cremation was a fresh violation and that the psychological harm endures, or argue that Sabry’s later admissions constitute a new act of infringement.
Practical and Political Challenges
Enforcement is another matter. Even if the Supreme Court orders Sabry to pay compensation, collecting from a politician can be politically messy. The Court could, however, recommend that the Attorney General recover the sum, as it did in Wanniarachchi’s case. Moreover, a finding of personal liability would carry immense moral weight, publicly branding Sabry a rights violator and effectively ending his ministerial career—itself a significant deterrent.
The legal architecture of Sri Lanka’s Constitution provides a clear path for Muslim families to sue Ali Sabry over the forced cremation policy. Article 126, coupled with the Supreme Court’s well‑developed doctrine of personal ministerial liability, offers a potent tool for accountability. The main hurdles are evidential—obtaining Cabinet documents and proving Sabry’s individual culpability—but the public record already shows a Justice Minister who championed a measure his own advisors flagged as unconstitutional. For hundreds of grieving families, a fresh fundamental rights petition is not just about compensation; it is about affirming that no official, however senior, can shelter behind cabinet solidarity when fundamental freedoms are at stake.