Sunday Times 2
Birth control without mothers’ consent: It is a violation of women’s rights
Complaints that a doctor attached to the Kurunagela General Hospital has allegedly carried out arbitrary sterilization have created a controversy. Therefore, it is timely to analyse the issue from a legal perspective.
Women being sterilised in India. Pic courtesy thegroundtruthproject.org
When there is a medical necessity to operate on a patient, a surgeon must explain it to the patient and get the consent of the patient or the next of the kin or the guardian. However, a surgeon who performs duties in good faith may have to attend even without the consent of the patient or the next of kin of the patient or the guardian of the patient in life-threatening situations. In such a situation, a doctor who acts in good faith has a legal protection under Section 85 of the Penal Code of Sri Lanka. Nevertheless, the responsibility is on the surgeon to prove beyond any reasonable doubt that he performed the duties in good faith and it had to be done urgently without taking the consent of the aforesaid relevant parties for the sole wellbeing of the patient.
From a legal perspective, based on the complaints made by mothers against the doctor, a charge can be framed under Section 3(1) of the Act No. 56 of 2007, International Covenant on Civil and Political Rights (ICCPR) enabling Act of Sri Lanka as the suspect is alleged to have committed the offences aimed at a particular race and his alleged actions could be interpreted as a discrimination against a race as well. According to Section 3(3) of the ICCPR Act, a person found guilty of committing such an offence shall be punished with rigorous imprisonment for a term not exceeding 10 years. And also as per Section 3(4) of the Act, an offence under this section is recognised as a cognizable and non-bailable offence which must be taken into consideration by the High Court only.
In addition to that, the suspect as a public servant is responsible to obey the directive laws as to the way in which he must perform his duties as prescribed by ethical standards, any laws or regulations relevant to the medical profession. If there is any injury to any complainant due to his failure to follow the standards and laws, the accused can be tried under Section 162 of the Penal Code of
Sri Lanka.
Not only that, this offence, if identified as “Grievous Hurt”, would also be subject to Section 311 of the Penal Code (as amended by the Act No 22 of 1995). As described by Section 316 of the Penal Code, any person committing the offence of Grievous Hurt shall be punished for a term which may extend to seven years, and shall also be liable to a fine and he may be additionally punished as the victims are women.
Moreover, there is also room for a fundamental rights case in terms of Article 12(2) of the Constitution, which says no citizen shall be discriminated against on grounds of race, religion, language or any other basis. Therefore, compensation can be demanded by victims by filing fundamental rights cases.
If the allegations are proved, the offence amounts to grievous mental harm and invaluable damage to the victim mothers and their spouses as well. Therefore, they can file Aquilian action at a relevant District Court, demanding compensation from the suspect.
The alleged offence is not only a domestic offence but, it is also recognised as a serious universal offence against humanity. If anyone commits any offence aiming at a particular group of people based on their race, religion, language, caste or any one of such grounds it is totally condemned by international criminal law.
This alleged problematic offence has been recognised by Article 6(d) of the Rome Statute of the International Criminal Court as follows;
6(d); “Imposing measures intended to prevent births within the group.”
However, some intellectuals have come to a wrongful clarification that the charges under the Rome Statute could not be framed at the International Criminal Court (ICC) against a Sri Lankan Citizen as Sri Lanka has not been a signatory to the Rome Statute as a State Party. Even though Sri Lanka is not a State party to the Rome Statute, Sri Lanka is an active member State in the United Nations. Wherefore, an international criminal case can be filed against a suspect at ICC through the United Nations Security Council in respect of a crime against humanity.
As it has been clearly laid down by Article 15 of the Universal Declaration of Human Rights (UDHR), everyone has the right to a nationality and no one shall be arbitrarily deprived of his nationality. Article 16 of UDHR further recognises the family as the fundamental unit group of society and every State has an obligation to provide adequate safeguards for the family.
Sri Lanka has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1981. As per Article 16 (1) (e) of CEDAW, women are entitled to equal rights to decide freely and responsibly on the number and spacing of their children. Wherefore, Sri Lanka is bound to ensure the aforesaid women’s rights. All NGOs which make a voice for women’s rights should join hands with the victim mothers, if the allegations are proved.
Going by the complaints made against the suspect, he is accused of directly targeting a particular race in malice for the purpose of eradicating the targeted race. This offence is identified by International Criminal Law as the crime of genocide.
The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly in 1948 by its resolution 260-A. Article (II) of the convention defines the crime of genocide as destroying a national, ethical, racial or religious group in whole or in part of it. Article II (d) of the convention clearly recognizes the following act as a way of committing the said offence.
Article II(d): “Imposing measures intended to prevent births within the group;”
Thus, if the population of any group of persons is arbitrarily controlled, destroyed or limited in malice for the purpose of eradicating such a group of persons from the world by any ways or means, it is recognised as a crime of genocide by international legal instruments.
Additionally, Article 4(2)(d) of International Criminal Tribunal for the former Yugoslavia (ICTY) and Article 2(2)(d) of the International Criminal Tribunal for Rwanda (ICTR) have also recognized the above discussed offence as a serious offence against humanity.
The allegation levelled against the suspect is in the grievous nature at both domestic and international level. Therefore, the State and NGOs should pay more attention on the complainants’ rights.
Complaints could be made to the Children’s and Women’s Bureau of the relevant police stations. They also can get legal assistance and advice from the Legal Aid Commission. The officers of the commission can be contacted on 0115335329/ 0115335281 /0112 433 618
Nevertheless, it must be understood that merely because an allegation was made against any person he must not be considered a culprit until he is found guilty by a competent court of law. Every person shall be presumed innocent until he is proved guilty beyond any reasonable doubt and this presumption of law has also been emphasized by the Article 13(5) of the present Constitution of Sri Lanka.
(The writer is an Attorney at Law, LL.B (Colombo), LL.M –KDU)