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  • Writer's pictureGavin Jayapal

Exhumation of human remains in Malaysia

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King Richard III


When one thinks of exhumation, the first person that comes to mind must be King Richard III.


In 2012, researchers unearthed the body of Richard III under a car park. Astonishingly, the site directly above the late King’s remains had been marked with an “R” some years prior; who made the marking and why is unknown.


When the researchers had struck upon their ossified gold, they immediately halted work and applied for an exhumation licence from the Secretary of State. The licence was given and the exhumation commenced.


A person only named as N, the sixteenth grand-nephew of Richard III, brought a judicial review  application against the Secretary of State (for its decision to grant the exhumation licence). This led to a very interesting bit of litigation being adjudicated upon (R v Secretary of State for Justice [2015] LGR 172).


Ultimately, the Court decided that the exhumation licence had been correctly issued and that the exhumation had been lawfully conducted.


Exhumation in Malaysia


Exhumation in Malaysia isn’t too different from exhumation in the English context. Given our colonial past, this doesn’t come as a surprise.


However, who has the power to exhume a body and how this power is exercised are 2 crucial questions that come to mind when dealing with any application for exhumation.


Factual scenario


I have had the opportunity to deal with a compelling brief. The deceased in question had been interred in a grave plot for nigh on 13 years. His wife (W) intended to have his body exhumed and interred in a new grave plot that she had selected. W had obtained probate over the deceased’s estate.


W applied to the local authority for permission to carry out the exhumation. The local authority granted her the necessary permission. She paid RM5.00 for a licence to carry out the exhumation.


She then wrote to the gravesite operator (G) where her husband was interred, stating her intention. G agreed to the exhumation.


The dead husband’s child (from an ex-wife) (C) got wind of W’s intention. She immediately filed an application for an injunction and sought to prevent W from carrying out the exhumation.


W was insistent on carrying out the exhumation. W stated that the exhumation was necessary for reasons of feng shui.


To complicate matters, G had in place rules over the operation of the gravesite. According to the rules of the gravesite, a licensee would have to be appointed to exercise the right of interment. Oddly enough, the deceased had appointed C as the licensee prior to his death.


From the factual matrix outlined above, it becomes clear that there are 2 competing interests: one for the exhumation and one against.


At first blush, it may appear as if it is a usual “us against them” scenario. However, when dealing with 2 competing interests in relation to a dead body, lawyers must act with a great deal of circumspect as  exhumation is a highly-charged, emotional affair for all parties concerned.


The legal position


The starting position is that there is no property in a dead body (Williams v Williams (1882) 20 Ch D 659).


However, an executor has the general right to conduct all proceedings in relation to a dead body. Persuasive precedent for this comes from the New Zealand cases of Re Clarke (Deceased) [1965] NZLR 182 and Murdoch v Rhind and Murdoch [1945] NZLR 425 (see also Public Trustee v Kapiti Coast Funeral Home [2004] NZFLR 1039; Takamore v Clarke [2012] NZSC 116; Chiu Chung Leung Edward v Lee Fu Wai [2004] 4 HKC 65).

In Malaysia and with specific emphasis on exhumation, Section 97 of the Local Government Act 1976 acts as a starting point. The Act states as follows:

97 Exhumation of corpses
(1) No person shall within the local authority area exhume any corpse or the remains of any corpse otherwise than—
(a)          by order of a Magistrate’s Court for the purpose of a judicial enquiry; or
(b)          under a licence granted by the local authority authorizing such exhumation and after payment to the local authority of such fee as may be determined by the local authority with the approval of the State Authority:
Provided that no licence shall be granted under the provisions of paragraph (b)—
where the cause of death was an infectious disease as defined in any written law relating to quarantine and the prevention of diseases; or in the case of a corpse that has been buried for less than five years, unless the local authority is satisfied that there are special reasons requiring the exhumation.
(2) Any person who exhumes or causes to be exhumed or permits to be exhumed any corpse or the remains of any corpse contrary to this section or who shall neglect or fail to observe any precaution prescribed as a condition of the licence to exhume or who fails to comply with any reasonable directions issued to him by a local authority for the purpose of preventing danger to the public health shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to a term of imprisonment not exceeding one year or with both.

Whilst not strictly in pari materia with Section 25 of the Burial Act 1857 (UK), it ought to be noted that the granting of a licence from the Local Government prior to any exhumation is mandatory in both countries. Carrying out an exhumation without a licence is a criminal offence.


Any person intending to exhume a body will first have to make this their first port of call.

Disputes over exhumation may serve to displace the right to exhume. There are several considerations that the Courts have accepted as being relevant when dealing with contested exhumation applications.


Quite unfortunately, there are a dearth of cases in Malaysia when dealing with exhumation. This enables exhumation cases from other common law jurisdictions to have equipollent applicability in Malaysia.


Issues for consideration when exhuming a dead body


The Hong Kong case of Re Lam Kwan Hung [2011] HKCU 1142 proved to be especially useful when dealing with exhumation. Surprisingly, this case was almost identical to the factual scenario that played out above.


Hong Kong's Court of First Instance (equivalent to Malaysia's High Court) was tasked with determining who was entitled to exercise the right of exhumation over the body of the deceased: his wife or child from a previous marriage?


The wife had taken out Letters of Administration over her husband’s estate and just like the scenario outlined above, the licence to inter had, oddly enough, been granted to the deceased's child.


Suffian J considered the case of Re Estate of Lu Han Lung [2010] 3 HKLRD 651and distilled the following principles:

(a) There was no property in a corpse.
(b) A person could not dispose of his body by a will and any direction on burial therein or otherwise by the deceased was void and not enforceable.
(c) As a starting position, the executor named in a will or the known personal representative in intestacy was entitled to possession of the body and responsible for its burial. The right of the surviving spouse or de factospouse would also generally be preferred to the right of the children.
(d) However, certain circumstances might justify a departure from this starting point, such as where in the case of intestacy, no one had indicated a willingness to apply for the administration of the deceased's estate.
(e) A person privileged with choosing how to bury a body was expected, but not legally bound, to consult other stakeholders. He also could not use his right so as to exclude the deceased's friends and relatives from expressing their affection for him in a reasonable and appropriate manner.

From a reading of Suffian J's judgment, 4 general considerations may be distilled:


 1. Who was the spouse at the time of the deceased's death?


A spouse is generally viewed as being the person best entitled to carry out the exhumation and to thereafter deal with the remains of the deceased. A spouse's right will take precedence over that of the parents, children and grandparents.


 2. Who holds Probate or Letters of Administration over the deceased's estate?


An executor is entitled to exercise the right of interment. After the spouse, it makes sense that the executor will be the person most qualified to deal with the deceased's remains. This is due to the fact that one's appointment as an executor implies that the deceased placed a great amount of trust with the executor.


Where the deceased has died intestate, Letters of Administration will normally be issued to the beneficiaries of the deceased's estate. In such a scenario, the Court will view the Administrator as being a person entitled to exhume the remains of the deceased.


3. Who exercises the rights of a Licensee?


A Licensee is a tricky consideration. Certain graveyards do not provide for the appointment of a Licensee, let alone take into account the Licensee's right to exhume the deceased.


In   Re Lam Kwan Hung [2011] HKCU 1142, Suffian J opined that a Licensee may be granted the right to inter the body of the deceased by the executor. However, unless the executor has expressly relinquished all rights over the deceased's body, the right of exhumation does not pass to the Licensee.


4. Who dealt with the body at the time of death?


This issue is linked to the rights exercised by a Licensee. The mere fact that a person dealt with the deceased's body at the time of death does not automatically grant that person the right to exhume the deceased.


A similar argument was advanced by Counsel acting for the children in Re Lam Kwan Hung [2011] HKCU 1142 but it was rejected by His Lordship. Unless express renunciation of one's right   to inter and further deal with the deceased is given, the Court will view the executor/administrator as being the person best suited to exhume the deceased.


Conclusion


From the above, it is clear that exhumation has a general framework surrounding it. However, this may be displaced by the factual matrix that underpins each individual case.


As previously mentioned, lawyers handling any application for exhumation must tread with caution; emotions run high and any misstep may be onto a legal mine. A good working relationship with one's opponent, together with a genuine attempt at settling the dispute out of Court will allow for a better outcome for all parties involved, without the foul taste of anathema as an acrid aftertaste.

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