SRI LANKA: Cancer patient who was trafficked for organ smuggling is facing denial of justice and protection

Dear friends,

The Asian Human Rights Commission has received information about an attempt by an unknown group of people to illegally traffic the organs of a cancer patient in Sri Lanka. Ms. TC Kanthi (38) of Ibbankatuwa, Dambulla in the Matale District went for medical treatment to the Cancer Clinic at Kandy Teaching Hospital on 16 October 2011. She was approached by two people who identified themselves as doctors. They advised her to go with them to India for medical treatment. She arrived at the designated location on 18 October 2011. She was abducted and detained in an unknown location. She observed several patients who were tied to the beds waiting for surgeries which would remove their internal organs. Ms. Kanthi was subjected to several medical experiments against her will. On 1 November, shortly before she was supposed to be taken to the operating theater, she was able to escape with the assistance of a woman cleaner. Later, she filed a complaint at the Galevala Police Station. Her husband, Ajith Wijekumara, also filed a complaint with the hospital authorities of Kandy Hospital as well as with the Kandy Hospital Police Post and to the Headquarters Police Station of Kandy, requesting prompt and efficient investigation into his wife’s case. An investigation has not been started. This is yet another illustration of breakdown of rule of law of the country.

CASE NARRATIVE:

According to the information that the Asian Human Rights Commission (AHRC) has received, Ms. TC Kanthi (38) of Ibbankatuwa, Dambulla in Matale District was brought to an unknown location and an attempt was made to forcefully remove her internal organs.

Ms. TC Kanthi is married to Mr. Ajith Wijekumara. She is the mother of three children and is a housewife. One year ago, Ms. Kanthi was diagnosed with brain cancer. She was receiving treatment twice a week at the Cancer Clinic of the Kandy Teaching Hospital.

On 16 October 2011, Ms. Kanthi went to the hospital for treatment. As she waited to be called for her treatment, she noticed two people who identified themselves as doctors speaking to the patients who were there for treatment. They approached Ms. Kanthi and advised her to go to India for treatment. She was told that the treatment was free of charge and that she would be fully cured. She also observed several other patients assenting to this treatment, so Ms. Kanthi agreed as well.

Ms. Kanthi came to the clinic two days later, as requested by the self-identified doctors. The doctors arrived in two ambulances and explained the treatment to Ms. Kanthi and her son, who had accompanied her to the hospital. They asked Ms. Kanthi’s son to sign a number of documents consenting to his mother’s treatment. Ms. Kanthi counted nine other patients boarding the ambulances. She shared an ambulance with four other people and three nurses. The ambulances began to drive forward towards Colombo. When the ambulance passed the Kadugannawa mountain area, the ambulances were stopped and the doctors and nurses went to the tea shop across the road and returned with packets of milk. The five patients in Ms. Kanthi’s ambulance were provided with straws and they all drank the milk. Ms. Kanthi fell asleep soon after she drank the milk.

When she awoke, she found herself on a hospital bed. When she boarded the ambulance, she was wearing white clothes, but she had been changed into green clothes. She observed two other patients in the room she was in who were tied to their beds. She was not informed of her whereabouts or of the nature of her medical treatment. She was not told why she was being detained in the hospital.

Several people who seemed to be knowledgeable about medicine approached her and took blood samples on three occasions. When Ms. Kanthi asked questions about the treatment and the people in the hospital, they injected her with an unknown drug which made her fall asleep. She noticed that several other patients were injected when they asked similar questions. Ms. Kanthi believed that illegal activities were taking place, but she was not able to stand up or leave the room she was in.

She was detained without treatment for 14 days, and was repeatedly told that she would be taken to a surgical theatre. She was not told what kind of operation would be conducted on her. Her head was also shaved.

Ms. Kanthi understood that she was still in Sri Lanka, as the hospital staff were Sinhalese. However, she was not allowed to communicate with any of her family members and was not informed of her whereabouts. She repeatedly requested the staff to allow her to return home but they refused.

On 1 November, Ms. Kanthi went to the bathroom and met a woman who was cleaning. She spoke to the woman who told her that this location was a place where internal organs were collected for smuggling. Although the place was heavily guarded, the woman told Ms. Kanthi that she could jump out of the bathroom window with her assistance. Ms. Kanthi did so and ran until she encountered a railway station. She took the first train that came, even though she did not have a ticket.

When she returned home, she went to Galkiriyagama Police Station with her husband and filed an official complaint. She explained what had happened to her. She requested the police officers to investigate the crimes that had been committed, and to bring the perpetrators who were trafficking people for the illegal trade of internal organs to justice.

She learned that her husband had made a complaint to the hospital authorities of the Kandy Teaching Hospital, but the authorities did not take any action. Soon after, Ms. Kanthi’s husband went to the Kandy Hospital Police Post, Headquarters Police Station of Kandy and made complaints regarding the disappearance of his wife and requested police officers to initiate a prompt and effective investigation into the disappearance of his wife. None of the authorities initiated any investigation into these complaints.

When Ms. Kanthi’s husband repeatedly asked the hospital authorities to investigate, they told him that there were a number of ambulances from private hospitals parked in the hospital compound, thus they could not be held responsible for what happened. Moreover, they explained, hospital security did not keep records of the arrival and departure of vehicles.

ADDITIONAL COMMENTS:

The Asian Human Rights Commission (AHRC) has reported innumerable cases of the victims of crimes whose cases have been neither accepted nor investigated by state authorities. The state’s law enforcement agencies have turned a blind eye to the many crimes which are reported to them on a daily basis.

The AHRC has observed an increase in organized crimes over the past few months. In many of these cases, army solders were engaged in contact killings, extortions, ransom taking, abductions and rape. A number of high profile cases have been reported of people being smuggled to Australia, Italy, Europe and Canada. Most of these cases were well organized and systematically proceeded as transboundary crimes. 

Elderly patients are looking to go abroad for their treatment. There has been an increase in the number of patients migrating to India or Singapore for medical treatment. Those who are in the lower economic stratas of society seek assistance and are often taken advantage of by criminals. The state should be responsible for investigating these crimes and for providing appropriate medical treatment to patients.

In many of these organized crimes, victims face enormous harassment and on several occasions, witnesses and victims have been killed by the perpetrators. The AHRC has continuously urged the state of Sri Lanka to create a witness protection law and implement a successful witness protection mechanism to verify the smooth running of the rule of law system. Moreover, the state of Sri Lanka is bound to implement the legal provisions of the International Covenant on Civil and Political Rights (ICCPR) as it has signed and ratified the convention. The lack of protection offered to those who seek to take cases against criminals, abusive police officers and state authorities, means that the law is underutilized and continues to be employed as a tool by state authorities to harass people. This not only takes a long-term toll on the victims and their families, but on society as a whole, by undermining civilian respect for the law and encouraging impunity.

State obligation for highest attainable standard for physical and mental health: 
The State of Sri Lanka has signed the International Covenant on Economic, Social and Cultural Rights (ICESCR) on 28 Sep 1976 and made its Accession on 27 Apr 1977. Following that the state of Sri Lanka is suppose to fulfill its obligations within Article 2 of the convention undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. Further to that the state of Sri Lanka has undertaken to guarantee that the rights enunciated in the ICESCR Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

According to the Article 12 of the ICESCR the state of Sri Lanka recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Furthermore the state of Sri Lanka is obligated to take steps to achieve the full realization of the rights envisage in ICESCR. This includes the prevention, treatment and control of epidemic, endemic, occupational and other diseases. Further the creation of conditions which would assure to all medical services and medical attention in the event of sickness.

Lately the Supreme Court of Sri Lanka, in the case of SCFR/326/2002, Justice Fernando has upheld the state obligation in accordance with the article 12 of the ICESCR.

“However good the standard of treatment in State hospital may be, there is no doubt that many Sri Lankan do opt for treatment in private hospitals ?sometimes in the belief that treatment and care is better, and sometimes because of fears in regard to delays, over-crowding, strikes, shortages of equipment and drugs, etc. Citizens have the right to choose between State and private medical care, and in the circumstances the Petitioner’s wife’s choice of the latter was not unreasonable? and was probably motivated by nothing other than the desire to save his life. Article 12 of the International Covenant on Economic Social and Cultural rights recognizes the right of everyone “to the enjoyment of the highest attainable standard of physical and mental health.”

General Comment No. 3:
As the ICESCR Committee has previously stressed in para. 12 of the General Comment No. 3 in the year of 1990, even in times of severe resource constraints, States parties have the duty to protect the vulnerable members of society. In times of recession and of restructuring of the economy, older persons are particularly at risk and it has emphasis that the state obligation for these older people still remains.

General Comment 6 of the ICESCR:
We recall the section 4 of the General Comment 6, emphasis that 1982 the World Assembly on Ageing adopted the Vienna International Plan of Action on Ageing and In 1991 the General Assembly adopted the United Nations Principles for Older Persons and in these section under the headed “care” proclaims that older persons should benefit from health care.

Further we recall the Article 9 of the ICESCR the right to social security and its emphasis on General Comment 6. According that article 9 of the Covenant provides generally that States parties “recognize the right of everyone to social security”, without specifying the type or level of protection to be guaranteed. However, the term “social security” implicitly covers all the risks involved in the loss of means of subsistence for reasons beyond a person’s control.

We strongly state that the section 34 the General Comment 6 has emphasis that Article 12 of the ICESCR has the right to physical and mental health with a view to the realization of the right of elderly persons to the enjoyment of a satisfactory standard of physical and mental health, in accordance with article 12, paragraph 1, of the Covenant, States parties should take account of the content of recommendations 1 to 17 of the Vienna International Plan of Action on Ageing, which focus entirely on providing guidelines on health policy to preserve the health of the elderly and take a comprehensive view, ranging from prevention and rehabilitation to the care of the terminally ill.

According to the section 35 of the General Comment 6 it states clearly, the growing number of chronic, degenerative diseases and the high hospitalization costs they involve cannot be dealt with only by curative treatment. In this regard, States parties should bear in mind that maintaining health into old age requires investments during the entire life span, basically through the adoption of healthy lifestyles.

General Comment 14:
We recall the General Comment 14 of the ICESCR on ‘older persons’ with regard to the realization of the right to health of older persons, the Committee, in accordance with paragraphs 34 and 35 of General Comment No. 6 reaffirms the importance of an integrated approach, combining elements of preventive, curative and rehabilitative health treatment. Further it has emphasis on the measures aimed at maintaining the functionality and autonomy of older persons; and attention and care for chronically and terminally ill persons, sparing them avoidable pain and enabling them to die with dignity.

Budgetary allocations:
We emphasis that according to the section 47 of the General Comment 14 the state of Sri Lanka is obligatory to article 2.1 of the Covenant, which obliges each State party to take the necessary steps to the maximum of its available resources.

According to the Health Ministry of Sri Lanka, 4.6% of the annual health budget was spent on management of patients and this was calculated as 350 million rupees. We stress that the state of Sri Lanka has to allocate enough state resources in this particular subject considering the higher necessarily of the day.

Necessary legal enactments:
Recalling the section 59 of the General Comment 14 we appeal that the state of Sri Lanka should adopted a domestic law enabling its citizens or group victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels. All victims of such violations should be entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition. National ombudsmen, human rights commissions, consumer forums, patients’ rights associations or similar institutions should address violations of the right to health.

Right to information of the Patient:
We recall the rights of the patients’ emphasis by the World Health Organization and stressed those rights to be protected for all the citizen of the country.

SUGGESTED ACTION:
Please join us in writing to the authorities listing below to demand that prompt, efficient, independent and impartial investigation should be instigated on the complaint made on behalf of Ms. T C Kanthi (38) of Ibbankatuwa, Dambulla in Matale District by law enforcement and medical facilities of Sri Lanka.

The Asian Human Rights Commission has written a separate letter to the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health and to the Special Rapporteur on Violence against Women on this regard.

To support this case, please click here: SEND APPEAL LETTER