Dr Shafi Shihabdeen, who has been embroiled in a sterilisation scandal, has filed a Fundamental Rights petition before the Supreme Court today requesting to declare his arrest and detention as illegal.
The petitioner categorically states that the allegation that Dr Shihabdeen had surreptitiously performed sterilisations on Sinhalese women whilst doing caesarian operations is baseless, frivolous and unsupported by any clinical evidence and has been made out maliciously to tarnish his image and cause disrepute to him professionally and personally.
The Petitioner states further that;
i. A caesarian is done in the operating theatre in the presence of at least 06 other persons being - 01 house officer, 01 Medical Officer anaesthetist, 01 running nurse, 01 nurse assisting the Senior House Officer [SHO], 01 paediatric house officer and 01 mid wife. Often this number is more than 06 with the addition of another nurse and other technicians to control and adjust the lights etc.
ii. Whilst the caesarian is being performed, the others in the room are watching the actions of the SHO attentively as they need to respond to his requests and to any unexpected emergency with utmost speed as the life of the mother and the child are involved. The allegation of surreptitiousness is absurd in these circumstances.
iii. Doing a tubal ligation [standard LRT procedure] would require an additional 10 to 20 minutes extra time in addition to the time taken to perform the caesarian which in itself would raise an alarm and have been discovered;
iv. Damaging the fallopian canal/tubes through ‘clamping’ would not be possible as that would require two extra clamps in addition to the forceps, clamps and equipment issued for a caesarian and which extra clamps have to be specifically requested from the hospital and issued by the nurse and which again would raise an alarm and suspicion;
v. There are 02 clamps issued with the caesarian pack but these clamps are kept with the nurse assisting the SHO and handed to be used only after the baby is delivered to cut the umbilical cord. If the SHO had requested the clamps earlier that in itself would have raised an alarm and a complaint would have been lodged long before;
vi. Caesarian operations are done by making a transverse cut at the bottom of the abdomen and the point where the baby’s head is engaged with the pelvic cavity and the baby is taken out head first and when there is a baby in the uterus, the fallopian tubes are pushed further up the abdomen and have to examined specially as they are not visible ordinarily;
vii. In order for clamping to be done, both the fallopian tubes ought to be made visible and which could be done by a process known as ‘exteriorising’ the uterus which in practical terms is taking the uterus out of the abdomen, which again is virtually impossible to do surreptitiously without anyone knowing or seeing;
viii. If there has been any damage to the fallopian tubes by pinching it with the fingers, then the damaged tubes would have caused serious complications such as acute bleeding and infection in the mother within 10 days of delivery which would in itself have alerted the hospital of any wrong doing;
ix. The fallopian tubes are thick muscular slippery organs and pinching or crushing them with the hand whilst wearing surgical gloves would be very difficult and would require crushing it continuously for around 10 to 15 minutes and there is no evidence in medical literature that such a procedure is possible or has been done or that it would cause infertility;
Caesarians performed under supervision
Caesarians are performed with the authorisation by a Consultant, Obstetrics and Gynaecology and under his/her supervision and for which operations the Consultant is responsible.
Professor Hemantha Senanayake, Head of the Department of Obstetrics and Gynaecology at the Faculty of Medicine, University of Colombo and former President of the College of Obstetrics and Gynaecology speaking to the newspaper 'Daily Mirror' stated that the ‘sterilisation story’ is highly unlikely ‘because usually, in the presence of other medical officers, it isn’t an easy task to carry out thousands of wrong C - section deliveries and that the fallopian tubes are not usually seen at caesarian sections’.
Furthermore, it has been revealed that Dr Shihabdeen has performed his duties under the guidance of the following Consultants in Obstetrics and Gynaecology;
i. Dr. Upali Jayawardena ii. Dr. Rohantha Periyapperuma, iii. Dr. Gunasinghe, iv. Dr. S. B. Ekanayake, v. Dr. Peshala Dangalla, vi. Dr. Pathinisekara. vii. Dr. Sumith Warnasooriya. viii. Dr. Susantha Amarasinghe. ix. Dr. Lenadora.
Furthermore, the aforementioned Consultants have not raised any questions or made any complaints whatsoever against Dr Shihabdeen with regard to the performance of his duties.
Divaina's attempt to frame Dr Shihabdeen
Despite the factual reality that doing one illegal tubal crushing is a virtual impossibility, the Divaina of May 23rd, 2019 published a front page headline story stating that 4000 Sinhala Buddhist mothers had been sterilised by their fallopian tubes being ‘tied’ by a doctor who is a member of the National Thowheed Jamaath and stated that the Police had ‘evidence’ and that a special police team had been deployed to arrest the doctor and that wide investigations had been launched by the Police.
The said news article referred to information received from ‘police sources’ and was given front page headline publicity to set the stage and justify the illegal arrest and illegal detention of Dr Shihabdeen without any legal basis whatsoever.
The front page headline story in Divaina created disquiet and anxiety in the country with people demanding the arrest and prosecution of the doctor. They went to the extent of demanding that steps be taken to punish the doctor involved by imposing the death penalty.
After the story was published an academic from the Rajarata University shared a post on May 23rd, 2019 on social media stating falsely that it was possible to damage the fallopian tubes by the process of clamping whilst performing a caesarian operation. Later in the day around 5.30 pm on May 23rd, 2019 he shared a further post stating that Dr Shihabdeen had performed 8000 caesarian operations. The insinuation was obvious. Thereafter the several persons began openly accusing Dr Shihabdeen on social media as being the doctor who performed 4000 sterilisations as referred to in the Divaina article which article was published on ‘Police sources’.
The Petitioner states further that the Divaina news story was discussed in Parliament by the leader of the JVP, Anura Kumara Dissanayake MP and the Honourable Speaker stated that the Inspector General of Police had confirmed to him the fact that there was no such investigation. The Police spokesperson ASP Ruwan Gunasekera thereafter on May 23, 2019 stated that ‘a doctor was being investigated for his income’ and nothing further.
The arrest:
The Petitioner states that on May 24th, 2019 Dr Shihabdeen and his wife, Dr Imara proceeded to the Kurunegela Teaching Hospital to perform their respective shifts. As Dr Shihabdeen was identified on social media as the doctor who had purported performed the alleged illegal sterilisation of 4000 Sinhala Buddhist women, threats were made on social media against him and his family and they feared for their life and property. There were rumours that Dr Shihabdeen would be arrested by the Police within the coming days for the alleged sterilisations.
As the Petitioner was in Kurunegala with his junior, Mr Rizwan Uwais, Attorney - at - Law appearing in a matter before the Kurunegala Magistrate’s Court, on the request of a member of the Kurunegala bar, the Petitioner met Dr Shihabdeen for a consultation around 4.30 pm on May 24th, 2019. Dr Shihabdeen was concerned about the threats made to him and his family and decided to make a complaint to the Criminal Investigation Department with regard to the threats being made on Facebook and agreed to meet the Petitioner again in Colombo on Saturday, May 25th, 2019.
Later fearing for the safety of her family Dr Imara telephoned, her cousin Mohamed Parsan to come to their house and he arrived at Dr Shihabdeen’s house at around 7.30 pm. Dr Shihabdeen left for the mosque with his son, close to around 8.00 pm in a three wheeler belong to one N M Farhan who had come there at that time on Mohamed Parsan’s request. Dr Shihabdeen’s friend
Mohamed Sajith also arrived at Dr Shihabdeen’s house at around 8.30 pm as was his usual practice to go with Dr Shihabdeen to the mosque but Dr Shihabdeen had left home by that time. Mohamed Sajith stayed back discussing the tense situation in Kurunegala and the threats against Dr Shafi Shihabeen. Dr Imara’s brother Riyaz Ahsan was also at home at that time.
Around 8.35 pm two Police officers in civvies unknown to Dr. Shihabdeen arrived at his residence. The Petitioner states that;
i. When the said Police officers arrived at Dr Shihabdeen’s residence as he was at the mosque the Police officers requested from Mohamed Parsan who opened the gate that Dr Shihabdeen be asked to return home forthwith. Mohamed Parsan then contacted N M Farhan and shortly thereafter Dr Shihabdeen arrived home in N M Farhan’s three wheeler. Dr Shihabdeen appeared to identify the police officers from the previous search at his office and they began a cordial conversation and Dr Shihabdeen began discussing with the said officers about the false allegations and threats that had been made against him and his family. He had informed them that he wished to make a complaint about these matters;
ii. The said officers had indicated that making a complaint would be a good idea and requested that he should come to the Police station and make the complaint and stated that they would accompany him to the Kurunegala Police station;
iii. He proceeded to the Police station in his friend’s vehicle being driven by his friend Mohamed Sajith with the two Police officers also in the vehicle. Dr Shihabdeen’s brother - in - law Riyaz Ahsan and N M Farhan followed in Dr Shihabdeen’s vehicle;
iv. Near the Kandy Reach hotel a Police jeep was parked and the said jeep then followed the two vehicles;
However when they came near the Police station the two Police officers requested them to keep driving and shortly after they passed the Kurunegala Police Station, the Police officers requested the driver to slow down the vehicle;
vi. Thereafter the said Police jeep overtook the vehicle in which Dr Shihabdeen was traveling in and stopped in front. Thereafter the 1st Respondent stepped out of the jeep and asked Dr Shihabdeen to get into the Police jeep;
vii. Dr Shihabdeen was then taken to the Police station and kept their and brought back home at around 11.00 pm;
viii. This time a team of officers arrived, some in civil clothing and others in uniform carrying weapons with Dr Shihabdeen;
ix. When Mohamed Parsan opened the gate, they indicated that they needed to search Dr Shihabdeen’s residence and took his mobile phone and asked him to sit outside in the three wheeler of N M Farhan which was parked in the garden of Dr Shihabdeen’s;
x. Shortly thereafter another team arrived with sniffer dogs and thoroughly searched the residence;
xi. The Police dismantled the CCTV DVR and also prohibited any person in the house from using their mobile phones whilst the search was going on;
xii. The whole search operation lasted approximately two hours and during the search a Police officer was receiving calls from someone who seemed to be a superior officer and the conversations were overhead by Muhammed Parsan as the said officer would come out of the house to answer the calls. During those calls the said officer had responded by stating that there was ‘still nothing’ referring to there being no evidence to arrest Dr Shihabdeen.
Around 1. 00 am on May 25th, 2019 the Police requested Dr Shihabdeen to have dinner and although he was reluctant, he had consumed his meal. Thereafter the Police recorded a statement from Dr Imara with regard to the manner in which the search was done and asked her if she had anything else to state and thereupon her complaint was recorded relating to the allegations against her husband and the threats made to their family.
Then around 1. 30 am the Police instructed Dr Shihabdeen to come to the Police station to record his statement along with them and at which point Dr Shihabdeen requested that he be permitted to come in the morning. However the Police officers had insisted that he should come with them to the Police station. No reasons were given.
The Police officers also removed from his residence the passports of Dr Shihabdeen, his wife Dr Imara, their children and that of Dr Shihabdeen’s father in law, accounts books, computer CPU’s, tabs and laptops belonging to Dr Shihabdeen and his wife and a briefcase containing documents with regard to the lands purchased by Dr Shihabdeen. No arrest note was issued or acknowledgement given for the items taken.
The Petitioner states that consequent to his unlawful his arrest the Police invited the public to make complaints with regard to the allegation of sterilisation by Dr Shihabdeen. This request received wide publicity.
Violations of Dr Shihabdeen’s Fundamental Rights:
The Petitioner states that Dr Shihabdeen’s Fundamental Rights guaranteed under Article 12(1), 12(2), 13(1), 13 (2) and 14(1)(g) have been violated by the illegal arrest and illegal detention purportedly under a detention order as stated in the Report filed in MC Kurunegela B 1398/19 dated May 27th, 2019.
Furthermore, Dr Shihabdeen has not been issued with a copy of the detention order which is said to have been issued and has requested for the same.
The Petitioner states that Respondents have acted maliciously, arbitrarily and illegally in arresting and detaining Dr. Shihabdeen. Dr. Shihabdeen’s arrest, detention and continued detention are illegal, ultra vires, unreasonable, disproportionate and an abuse of power.
As such, the petitioner states that Dr.Shihabdeen's right to be presumed innocent has been vitiated by inviting the public to prefer complaints consequent to Dr Shihabdeen’s unlawful arrest and his right to engage in his lawful occupation has been violated.
Leave your comments
Login to post a comment
Post comment as a guest