By Ruwan Laknath Jayakody –

Ruwan Jayakody

We apologize.

On behalf of the rest of the fourth estate, the media or in the name of the free press or what is left of it, we apologize as indeed we all collectively wielding that dagger with its handle towards our hands, the inky vein of which is said to be mightier than the sword, owe you, Dr. Shafi Shihabdeen, an apology, if not directly for your tattered reputation, for complicity in your graceless fall.

For patients in Sri Lanka, the medical profession, for the most part, unless due to ignorance or naivety concerning the complexities of diagnosing and treatment, or some genuinely ghastly tale of horror and woe experienced at the hands with the healing touch, generates reverence and to its practitioners, especially the doctors, is bestowed demigod like status, and afforded godly veneration with all the associated spoils. Thus, any breach of this duty of care, is deemed tantamount to a mortal sin.

Dr. Shafi

Your story however is not one of alleged medical malpractice, to be rectified through the adoption by the health sector of a long term solution such as informed consent. It is more elemental than cerebral.

The presumption of guilt, trial by media, in the court of public opinion, was the ordeal that came to be your lot in life. This was when you, whilst serving at the Kurunegala Teaching Hospital as a senior house officer, and at the time unnamed in the vernacular press in a front page lead story in May 2019 – coming as it did, hot on the heels of the Easter Sunday Islamist terror attacks of April 2019, whereafter anti Muslim sentiments were at a fever pitch – came to be accused as the ‘Muslim doctor’ who had as an obstetrician and gynecologist, surreptitiously performed over 4,000 illegal sterilization surgical tubal ligation operations on Sinhala Buddhist mothers. Predictably, the ‘murder in the womb’ (as one English newspaper chose to sensationalize the histrionic hysterics of women understandably aggrieved at the plight of not being able to conceive a second time, albeit ignorant of the complicated scientific processes at play behind each unique conception, but nonetheless feeling legitimately victimized) story spread like an epidemic and wildfire, enveloping the society in mass hysteria, spurred on by the media which found a readymade cast of such women seeking to be mothers for the second time who were egged on by political zealots and religious bigots including saffron clad men such as Parliamentarian Athuraliye Rathana. A state of mass hysteria ensued with you as the apotheosis of the bogeyman cum fall guy. With you being identified by name shortly thereafter as having performed a procedure on hundreds of women seeking to be mothers for the second time, which rendered them sterile and thus unable to conceive a second time, a full blown political and media circus went on overdrive, going gung ho, all guns blazing, with the result being that you were arrested by the Criminal Investigations Department (CID) thereafter on suspicion of unlawfully acquiring assets and wealth in excess of and disproportionate to your earnings and income. It seems that you cannot be, both a doctor with a private practice and laboratory, and also a businessman who engages in the trade of vehicles and textiles and goes into business with friends by purchasing property. There was the odd media report or two about a personal animus of a work colleague and subsequent judicial corruption in the form of a conflict of interest involving the latter also playing a role in the subsequent proceedings against you. Indeed, the CID has since noted that there were irregularities in the process under which you were arrested. Troubles did not end there, as literally over 1,000 women complained against you, claiming that you had sterilized them in the context of Caesarean Section procedures by allegedly forcibly blocking and/or damaging their fallopian tubes by way of clamping, and/or through the use of fingers, clamps and forceps, thus rendering them barren; Never mind the fact that visiting obstetricians and gynecologists, medical practitioners and experts and supervisors, assisting nurses, and others including technicians and minor staffers having noted that the allegations of conducting the same are fantastical and impossible, unscientific and false. To add to this Kafkaesque nightmare, you were also accused of having terrorist ties, specifically maintaining links with a terrorist organization involved in terrorist activity (the National Thowheeth Jama’ath organization behind the Easter Sunday bombings), and detained under the Prevention of Terrorism (Temporary Provisions) Act.

Yet, despite an unusually exhaustive inquiry along all these red herrings including the recording of statements from over 500 persons including the Deputy Inspector General of Police in charge of Kurunegala who was the source of the original newspaper article but who on questioning during the Police investigation had stated that he had only informed the journalist in question of the existence of a ‘rumour’ regarding the same, the CID and intelligence agencies have drawn a complete blank in terms of finding even a fig leaf of evidence to support even a shred of suspicion. Yet, despite lacking any basis in fact and not being hitherto charged in a court of law, you are only out on bail.

This had, all along, simply been a case of Hitchcockian mistaken identity. But, was it?

It is since reported that the Health Ministry Secretary had ordered the continuation of your salary and the payment of salary arrears as per the Establishments Code’s procedure concerning officers sent on compulsory leave (which you claim was arbitrary, unlawful, sans just cause and legal authority), with the Kurunegala Teaching Hospital Director being ordered to explain as to why your salary had not been paid for the time duration. It seems however that this respite was short lived as your troubles were not over by a long shot. The Public Service Commission denied authorizing the continuation of the salary and the payment of the back wages. You have since had to file a writ petition before the Court of Appeal, seeking an order directing the relevant authorities to pay your salary and back wages. Due process including fair trial related rights such as the complete intimation of the charge/s against you and the right to legal assistance (lawyer being given access), has in certain instances, been denied you, throughout this tribulation.

You are also however, yet to be reinstated in your position at your work place. It is too little solace, and much too late at that. The damage is done. Hate, malice, hostility, intimidation, racism and the resultant mental trauma have become a daily routine and rigmarole not just for you but also your wife who was also a doctor attached to the same Hospital (but since sought and received a transfer, and has also been on medical leave), and your children, who have had to, in the aftermath, involuntarily leave home and hearth, and relocate on multiple occasions, quit work and schooling, and survive on steadily dwindling income sources (accounts frozen) and the ready assurance of discrimination and ostracization and unfair targeting. To describe this cause célèbre as an injustice does not begin to cover the gamut of suffering endured by you.

Article 13(5) of the Constitution recognizes the fundamental right to the presumption of innocence until proven guilty unless the burden of proof is placed on the accused, as a part of the due process and the right to a fair trial.

In her Introduction to historian Francis Hill’s ‘A Delusion of Satan: The Full Story of The Salem Witch Trials’, author on comparative religion, Karen Armstrong describes how those fleeing religious persecution in Europe to find a new and better world in America, also brought with them an inadequate conception of religion where instead of compassion as the primary religious virtue, the Puritans of New England, cultivated a harsh, unyielding righteousness that was quick to judge and condemn, one that also saw Satan as omnipresent. Armstrong also notes how individuals with mundane concerns and frustrations familiar to each one of us including boredom, envy, a sense of injustice or of being marginalized (or what Hill compares to disinheritance in the form of the denial of just expectations) – trivial ills we have all experienced, and communities alienated from their roots, struggling for survival in unchartered realms, riddled with tension, jealousy, and resentment, fueled in turn by rage, bitterness, and envy produced by deep losses on many levels including the individual and familial as well as the social and national, can fester and attract hostility and explode into a destructive violence that assumes diabolic proportions. She concludes that we will continue to be plagued by primitive terrors that lie beyond the control of rationality and that no matter how modern and scientific our society becomes, we can still be haunted by inner demons, which we project outward onto others with abhorrent effect and that bad religion can be as destructive when like any other activity, it can be abused and made to exacerbate our frightened egoism instead of helping us to transcend it. The Salem witch hunts came to be replaced in the public imagination by the Red scare of McCarthyism which led to the American State seeking out communists and communist sympathizers, mostly men and women living productive and respectable lives, and stripped them of their employment and in certain cases, imprisoning them. As Hill observes in the Preface to her book, a climate of intolerance, fed in equal measure by the religious right’s zeal and the left’s political correctness, nourishes the soil to sow the dragon’s teeth, in this case of abject belief and fear.

Sri Lanka too has had a storied history of witch hunts.

During the furore surrounding the fiasco that was the initial Police investigation into the atrocity which was the September 2015 abduction, rape, grave sexual abuse, and strangulation murder of a four-year-old girl in Kotadeniyawa, the fact that the ultimate convict was a self confessed stalker cum scopophiliac and underwear fetishist against whom multiple Police jurisdictions had prior to the incident for which he was sentenced, received several complaints of sexual misdemeanors, which amounted to little in the way of subsequent action from a law enforcement standpoint, and the fact that the first judicial medical officer to arrive at the site of the body, by observing the crime scene including the violence of the injuries, inferred that the crime was a combination of pedophilia, sadism and possibly necrophilia, whose escalation in criminal confidence and motive showed the perpetrator likely to be or become a serial offender, who in the best interests of all, was a predator to be captured before the next unsuspecting prey cum victim, slipped the mind of all. This was a crime to be solved fast and forgotten faster. Hence, the hasty and wrongful arrests of a teenager for the possession of pornography and the arrest of the eventual convict’s brother Dinesh Priyashantha known by the alias “Kondaya” who simply was in the wrong place, at the wrong time, had the wrong history (per the media, previous arrest for the alleged sexual abuse of a child and peculiar behaviour of voyeurism) and most importantly, looked the wrong way and did not look the right way – “not ordinary”.

The trial for the media in your case, Dr. Shihabdeen, even though criminal defamation is no longer in the book of statutes and only civil defamation with recourse in delict/tort being available, too will have its day in the court of public opinion (may be, it already has); its outcome, a fait accompli.

We apologize.