Malaysia: Irene Fernandez found guilty

Posted by Aegile Fernandez under Breaking News on 16 October 2003

Human rights activist Irene Fernandez was today found guilty by the Kuala Lumpur magistrate's court of maliciously publishing false news. She was sentenced to a prison term of 12 months. The court has granted a stay of execution pending appeal to the High Court. Irene remains free on bail.

Fernandez, 57, is charged under Section 8A(2) of the Printing Presses and Publications Act 1984 with "maliciously publishing false news" for releasing a memorandum at a press conference on August 1995 on the alleged torture and death in immigration detention camps.

Irene completes submission. Court sets verdict for 16 October 2003.

Irene Fernandez was charged under section 8A(1) of the Printing Presses and Publications Act 1984 for "maliciously publishing false news" through the issue of a Memorandum called Abuse, Torture and Dehumanized Treatment of Migrant Workers at the Detention Camps. The maximum penalty for this offence is imprisonment for a term not exceeding three years or a fine not exceeding RM 20,000 or both. The trial has been ongoing for over 7 years during which time Irene has been on bail and her passport impounded.

In what was described as a case of "exceptional circumstances" by the lawyers present in court today, the Accused Irene Fernandez personally completed her oral submission standing from the dock in reply to the Prosecution's written submission. Highlights of Irene's submission today :

Irene referred the Court to the primary evidence of the 5 witnesses who were ex-detainees in the detention camp to refute the evidence of Prosecution witnesses including the camp commander Chief Inspector Nashatar Singh and other police personnel. Pointed out was evidence of ex-detainees Gulam Maola, Mohamed Zakir Hossein, Moron Mozumder, Abdul Alim and Mohd. Shahbuddin who had testified that they had personally experienced and/or witnessed being stripped naked on arrival at the camps, beaten in the private parts, shaved bald, denied access to adequate food and water resulting in malnutrition and dehydration , forced to use the same unwashed clothes for months of detention, corruption of the camp authorities and police who took money from detainees, and the deplorable conditions of the camp toilets which were covered in faeces. The witnesses had also given evidence that there were deaths at the camps and of sexual abuse where detainees were forced to masturbate in public by police personnel, which Irene described as no different from slavery in which abuse was a tool used by the authorities to destroy any dignity left in the migrants. In support of the witnesses' testimony, Irene also highlighted an article and report written by Dr. Kumar Devaraj, a doctor in government service who had written to the Director General of Health and Inspector General of Police in May 1993 about his concerns of the emergence of beri-beri amongst migrant detainees in camps. Irene pointed out that beri-beri, a common war time disease is a result of malnutrition.

Irene emphasized that the Prosecution had failed to discredit the evidence of the 5 ex-detainee witnesses and that their reliving of the trauma, experiences and nightmares reinforced the truth, which gave weight to their evidence. Irene said that the Prosecution had failed to produce a single ex-detainee as their witness although they claimed that they had interviewed over 30 detainees. Morever, Irene reminded the court that the Prosecution witnesses who testified to the camp conditions were police personnel themselves and that it is widely acknowledged that perpetrators of violence seldom admit what they have done especially if they believe they can be protected as enforcement agencies. The Prosecution had further only adduced evidence relating to Semenyih Camp and not the other camps mentioned in the Memorandum including Juruh, Langkap, Macham Umbor and Tanah Merah.

Irene pointed out that the 5 ex-detainee witnesses who had been brought into Malaysia via Thailand were the victims of human trafficking and smuggling who had been criminalized and punished while their recruiters remained free. The problem of human trafficking had not been addressed and detention centers were full of migrants between 1992-1996 which was one of the reasons why the problem had to be exposed.

Of the second layer of evidence (the interviews with 335 ex-detainee migrant workers) Irene stated that the Prosecution's witness, Sharuna Elizabeth Verghis confirmed that she conducted interviews with the witnesses and the information collected from the migrants workers who did not know each other showed a consistent pattern and this data made up the Memorandum. She believed that they "had spoken the truth".

Irene confirmed she did not interview the ex-detainees personally however she headed the research team who collected and analysed the data and put it in a Memorandum for advocacy as a collective organizational effort. Irene stated that as over 300 interviews had been conducted given the large base no further verification was needed.

The final layer of evidence - Irene referred to the independent investigation by the team of Sun journalists Steven Gan, Selvi Gopal and Uma Papachan who went undercover to investigate the conditions of the Semenyih Detention Camp. Irene told the Court that the most important point was that the Sun team came to exactly the same conclusions stated in the Memorandum. They had wanted to publish the report as "Death Camps" but were not allowed to - however after the Memorandum was published their investigation was published as "Shattered Dreams" in the Sun. For this the team won the Prime Minister's award for investigative journalism carrying a RM 3,000 cash prize and certificate. Irene asked the Court "if the Sun team got an award in cash and a certificate for the same story, the same truth, the same conclusion…what will I get, what did I get – I was charged under section 8 (A) of the Printing Presses and Publications Act 1984."

Irene said that now that the truth was clear she asked the Court to recognize the guarantees in the Federal Constitution that truth should prevail through Article 10 in relation to the Freedom of Speech, Assembly and Association. She said that this fundamental right must be upheld to ensure checks and balances of the acts of authorities, agencies and leaders who are accountable in our democratic society.

As the issue involved migrant workers from different countries, Malaysia is accountable to the international community, such as the United Nations. Irene requested the Court's permission to submit and rely on Article 9 of the UN Declaration on Human Rights Defenders. The court allowed this despite the Prosecution's objections. On this premise, Irene confirmed that in her capacity as Director of Tenaganita and Chairperson of CARAM-Asia, it was her responsibility to raise issues of grave concern and make public conditions of abuse, torture and dehumanized treatment of migrant workers in detention camps. She had thus asked the government to institute a Royal Commission of Inquiry into these concerns.

Irene concluded that although she was unable to raise the legal issues of concern in the Prosecution's submission in the absence of lead counsel Mr. Puravalen, she believed that in her submissions over the last 2 days she had clearly defined the truth.

Mr. Ramdas Tikamdas, who held a Watching Brief for the Bar Council applied for leave of court to submit on points of law relating to the case in the interests of justice as this was an extraordinary case where lead counsel was not present. The Court allowed the Bar Council's submission despite the Prosecution's objections.

In his submission, Mr. Ramdas referred to case law and facts of the case to point out to the Court the ingredients of the charge which the Prosecution had to prove beyond reasonable doubt (which appeared not to have been proved) :

- that in considering whether news was false the Court ought to look at the Memorandum in totality. The substance of the Memorandum borne out by the evidence given in court by the witnesses especially Golam Moala, Mozunder and Mohamad Zahir Hossain cannot be said to be false. Based on the witnesses, testimony, the treatment of conditions of detention was in fact far worse than that stated in the Memorandum.

-Based on the testimony of these witnesses, and the serious allegation of human rights the Bar Council had filed a complaint on 12 October 2000 with the Human Rights Commission of Malaysia (SUHAKAM) pursuant to Section 12(1) of the Human Rights Commission of Malaysia Act 1999.

-that under the law the publication of false news is not an offence in itself unless it is published "maliciously " or without lawful excuse. Irene, as Head of an NGO whose object is to look into the affairs of migrant workers in the country was discharging her civic duty and in line with the object and purpose organization in publishing the Memorandum based on information which was collected through research conducted on migrant workers on HIV/AIDS. There was no evidence of malice on the Accused's part who should instead be commended for doing her public duty in the cause of human rights.

-that the presumption of malice may be rebutted upon evidence that prior to publication the Accused had taken reasonable measures to verify the truth of the news. The "reasonable measures" taken in this case were the complaints, statements and interviews by the migrant workers. This was the distinguishing fact from the Lim Guan Eng case where there was no verification undertaken.

-the Court should uphold Article 10(1) (A) of the Federal Constitution to the right to freedom of speech and _expression

-that it was deeply disturbing that the response of the authorities into allegations of human rights abuses was a prosecution of the Accused resulting in a trial of almost 300 days over 7 years involving incalculable man hours, public expense and resources of the State.

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