Gamini Gunawardane Courtesy The Island

January 25, 2016, 7:29 pm

There appears to be some anxiety that Indian police had in an investigation into alleged Kidney operations done with kidneys obtained on payment there, found they were done by some doctors of this country, in hospitals here. Police authorities have said that no such report had been received by them. The question is, if they receive such a report, what will they do? To add to the confusion our Health Minster had, in a knee jerk reaction, ordered to stop kidney transplants on all foreign nationals. This would mean that even Maldivians would not be able to get their kidney operations done here. And now, he has appointed a three member committee to inquire into it and also asked our police to launch an investigation. The latest is a five member committee! I wonder why all this fuss?

As far as I am aware, performing a kidney transplant operation here, either with or without payment, is no offence according to our criminal law, even if the kidney had been obtained on payment. I believe in India, performance of such surgery with replacement kidneys obtained after payment of money to the donor, is an offence. Hence people of India may be taking the obvious option of having it done either in Sri Lanka or Singapore.

As far as I know, in such internationally connected cases, the ‘Theory of Double Criminality’ comes into play. That means, if the international assistance is to be provided to the requesting country, the offence under investigation in a foreign land, has to be an offence recognized so in the other country too. In such an event, if assistance sought through the Interpol agencies in the two countries, it may be provided. I believe this safeguard is to ensure the sovereignty of each country.

If evidence is revealed at this end that an offence identified in both countries has been committed, action could be taken to make available the suspect/s for a trial abroad through extradition procedure. And that too, only if an Extradition Treaty exists between the two countries. Even so, the requesting country has to place before the relevant court of this country the evidence that will be led against the local offender/s. The courts too will sanction extradition, only if it considers that such evidence would be adequate to convict the offender, had such an offence been committed in this country.

For that matter, even a local person living in another country had been found to be complicit in an offence committed in this country, which is not an offence in the host country, the local police could only question him or record his statement there, only if that country’s Interpol agency would permit us to do so, and that too if the local person living there would be willing to be interrogated. In such an event, the Interpol there would only be present to ensure this procedure is observed and that too as a gesture of international co-operation. This is obviously to ensure the freedom and safety of a foreigner living in that country with a valid Visa or a Resident Permit.

We had to follow this procedure in the 1970s when the CID was investigating large scale violation of exchange control offences committed in this country, by locals resident abroad, as violation of exchange control regulations laws was not an offence in such countries. In fact, some Sri Lankans declined to be interviewed by Sri Lankan Police. For the same reason there was no question of extraditing such offenders here. We had to wait till they eventually landed here to arrest or interrogate them.