The Equality and Human Rights Commission explains: Human rights are the
basic rights and freedoms that belong to every person in the world, from birth
until death.
In order to bring a claim under the Human Rights Convention, you must be: “any
person, non-governmental organization or group of individuals claiming to be the
victim of a violation”. The dead can’t bring claims – but living people can bring
claims on their behalf.
The claims of the living heirs may stem from two things in respect of which the
anxieties of living men extend even after their death. Those are the body and
reputation of the deceased.
1) His Body: A living person is interested in the treatment to be given to his own
body. A person is interested in a decent funeral and good burial. Criminal law
secures a decent burial for all dead persons and the violation of a grave is a
criminal offence. It is because to the respect the feelings of the relatives of a
dead person, not in protection of dead person's right.
2) His reputation: Everyone is interested in maintaining reputation even after
death. The reputation of a dead person receives some degree of protection from
the criminal law. Defamation suit can be filed for loss of reputation of a dead
person. If the publication is an attack on the internet of living persons, as a matter
of fact, this right is in reality not that of the dead person but of his living
descendants.
Article 37 of the New Civil Code provides that “Art. 37. Juridical capacity, which is
the fitness to be the subject of legal relations, is inherent in every natural person
and is lost only through death. Capacity to act, which is the power to do acts with
legal effect, is acquired and may be lost.” We beg to disagree. Civil personality is
not a prerequisite for the State to afford protection to its subjects, as provided in
Imbong vs. Ochoa, a person has a right to life even if he is yet to have a civil
personality. The same is true with deceased person, the State affords them
protection and acknowledges their residual human rights: right to dignity, that is
evident by the respect given to holding of a decent burial/funeral. The Philippine
has laws affording protection of the dead, example of which is the crime of oral
defamation, the person can also be penalized for blackening the memory of a
dead person, also our customs/traditions suggest, we have a regular holiday for
the dead: celebration of all souls day, the state also set asides its resources for
public burial rites. The dignity of Clara’s dead child has been abused when the
defendants herein acted, because of a baseless sense of fear, to prevent Clara’s
family and workmates to join the burial ceremony by taking the funeral car with
the dead child ahead of the procession and immediately bringing it inside the
cemetery. For a hundred armed police officers to fear the few unarmed
bereaved, such fear cannot be seen as anything but baseless.
It is worthy of noting that one of the primary sources of international law is
International Customs, which is an evidence of a practice accepted as a binding
law through the persistent usage over a long period of time.
Such right of the deceased to a burial, has long been accepted and recognized
by various countries, which read and state as follows:
“Every person dying in this country”, it has been judicially declared , “ has a right
to Christian burial”. In Roman law an heir could sue for injuria if an insult was
offered to the body of the deceased at the funeral. But this was in some ways a
direct insult to the heir himself. French law grants a civil remedy to relatives, even
when there is no specific intent to attack them, if they can prove either material or
moral damages resulting from untrue statements concerning the [Link]
297 of the Indian Penal Code mandates punishment for committing crime which
amounts to indignity to any human corpse. Further in English law as well as in
Muslim law the violation of a grave is a criminal offence. Later in many cases the
court upheld that Right to human dignity must be recognized. In Ashray Adhikar
Abhiyan v. Union of India, the court held that it is the obligation of the State to
have a decent burial to the deceased person as per their religious belief.
As per the religious belief being practiced in the Philippines, a burial of a
deceased child being guarded by a hundred of police, and later on interrupting
the same and only allowing Clara to come near her child’s coffin is a clear
violation of the deceased as well as the living relatives right to be given a proper
burial and their exercise of the freedom to religion, respectively.
As adopted in our courts of law, explaining the freedom of religion, the U.S.
Supreme Court in Cantwell v. Connecticut 2 said
“Freedom of conscience and freedom to adhere to such religious organization or
form of worship as the individual may choose cannot be restricted by law. On the
other hand, it safeguards the free exercise of the chosen form of religion.”
Thus, the deceased child and his living relatives were stripped off of their right to
mourn and have a decent celebrated burial and to practice their freedom to
religion in relation to their respective beliefs as Roman Catholics?