Blowing in the Wind

2019.06.29

Dr. Seigu Shihabdeen Mohamed Shafi’s case for so called sterilization charges was called in Kurunegala Magistrate's court on last Thursday (27th). I have published a summarized report on my FB, on what happened in the court house. However, it was highly unbecoming that almost all mainstream media have either failed or intentionally restrained themselves from reporting the reality as it was. I am not referring to analyzing. The manner in which they reported the court proceedings was highly partial and utter distortion of facts. This has shown clearly the extent that media has allowed themselves to be abused by political con artists.

Today media reported that Athuraliye Rathana Thero has lodged a complaint with the acting Inspector General of Police, claiming that the manner in which the CID has conducted the investigation was not satisfactory. I overheard some of the lawyers who appeared for the party aggrieved in the said case, also making the same comment when the court was adjourned for lunch on 27th. I asked one of them why and he replied that the CID was not disclosing the crucial facts of the case. Then the obvious reaction of the party aggrieved should have been a clear disclosure of the facts that CID have suppressed, when they are given the chance to address court. I drew my colleague's attention to that solution and waited to hear about the suppressed part of the facts in the open court, which never happened.

The submission made by the the lawyers of party aggrieved did not reveal or uncover any suppressed facts of the case. Their argument was mainly based on the fact that CID investigation was totally based on sterilization by way of damaging fallopian tubes and they have neglected the possibility of achieving the same result by other means, which I accept as a sound argument. But the said alternative methods should have been listed and the clinical ways of proving the same also should have been disclosed, which also never happened.
Party aggrieved started their submissions by defining this as an issue which was not covered by the penal code or any other acts in Sri Lanka. This simply proposes that the case should be dismissed immediately, since a criminal action cannot be maintained for something which is not defined as a crime in the criminal law of the country. As I feel, as a criminal lawyer, this action can be maintained under section 316 of penal code – Grievous hurt, which clearly falls under the definition of Grievous hurt under section 311.

Dr. Sarath Weerabandara, the director of Teaching Hospital Kurunegala, was proposed as a member of the doctors committee appointed to investigate the medical aspect of the issue. Dr. Weerabandara is among the witnesses of the case. Even if we set aside the fact that he has a very close relationship with Wimal Weerawansha, who represents a group which stands to gain politically by pursuing this issue, it is commonly accepted the inappropriateness of appointing someone who happens to be having connections with the fact in issue, in any manner, as a judge or even an observer of the case. It is called conflict of interest. Therefore, if Dr. Weerabandara who has publicly expressed his prejudicial presumption in this matter, is appointed to the said committee, it is undoubted that his prejudice will make an enormous impact on the impartiality and truthfulness of the outcome.

The party aggrieved was also against proposed clinical tests, which were scheduled to confirm sterility of the women in issue, due to possible side effects. However, the question was, how the charge is to be proved beyond reasonable doubt without any clinical proof. They were proposing to consider this a systematic crime and decide on statistics. If this method is adopted, either sterility should be clinically proved in each case or their sterility should be considered as an evident fact. The disapproval of the party aggrieved for clinical tests suggests, they might have decided to lean on the latter. For all this, it is highly unlikely for a fact in issue in a criminal case, to be considered as an evident fact.

Still no eye witnesses turned up confirming Dr. Shafi’s so called misconducts while performing surgeries. Party aggrieved correctly pointed out that the supporting staff of the operating theater, most probably will not be disclosing any knowledge of any controversy by Dr. Shafi since, their whistle blowing might boomerang on themselves for abatement in the said crimes. However, such a reason only suggests, there might have been evidence, which proves the accused’s guilt, but there aren’t any. A criminal charge should be proven beyond reasonable doubt. Given the circumstances, this case is not even on starting line yet.

However, at the moment, the available facts suggest the following conclusions:-

- No evidence uncovered to connect Shafi, to any allegation.
- Even the aggrieved party appears to be hurt on the above fact, they also do not possess anything at all, to change the said unavailability.
- There were no recorded complaints on Shafi, when “divaina” first published otherwise.
- Therefore, “Divaina” simply lied.
A simple reality any criminal lawyer will state, when Shafi is charged for unauthorized sterilization, prosecution has the burden to prove the following, beyond reasonable doubt :-
- Are the complainants sterile?
- Is it certain that they are not sterile due to natural reasons?
- Is it certain that their sterility does not fall within the natural percentage of sterility, which occurs as a side effect of cesarean surgery?
- Is it certain that their sterility has occurred as a result of “something” Shafi has done?
- What was that “something”? When? Where? How?
- Was that “something” Shafi did, intentional?
- Was that “something” the sole reason to cause sterility to the complainants?

If any one of the above questions get “No” as the answer, the case against Shafi most certainly will collapse.

This is the evidential reality one has to face in court proceedings, regardless the proposals which, agony or morale insists. There is no such thing as proving a criminal case by any means. The question is “don’t they know this?”. They very well do know. Then why this issue is prioritized and dragged all over the country by distortion of facts through rouge media? As Bob Dylan correctly wrote, “the answer my friend is blowing in the wind”.