Court documents 'incomprehensible',
appeal put off
Oct 28, 2008 12:58pm
The 13-year court battle of migrant worker activist Irene Fernandez has again run into problems as parts of the 9,000 court documents on the case are said to be ‘incomprehensible.’
Fernandez’s lawyer M Puravalen said that portions of the notes written by the trial judge were unclear.
The judge decided to postpone the appeal hearing to November 24 when the defence is expected to submit its objections to the court documents.
Fernandez, 62, was sentenced to 12 months' imprisonment in 2003 after being found guilty by the Kuala Lumpur Magistrate's Court of maliciously publishing false news. She was allowed bail pending appeal.
In 1995, Fernandez exposed the poor conditions at immigration detention centres in a memorandum entitled ‘Abuse, Torture and Dehumanised Conditions of Migrant Workers in Detention Centres.'
She was arrested and charged under Section 8A (1) of the Printing Presses and Publications Act 1984 a year later.
The maximum penalty upon conviction is three years' imprisonment or a fine not exceeding RM20,000, or both.
The appeal mention date has been postponed four times due to several technical glitches since April, when papers containing her appeal went missing.
Her case has become the longest-running trial in Malaysian history.
ABOUT THE TRIAL OF IRENE FERNANDEZ, DIRECTOR OF TENAGANITA, MALAYSIA
14 October 2003
Day for judgement brought forward
The day for the Judgement on the trial of Irene Fernandez, the longest running trial in Malaysian legal history was abruptly brought forward to 14th October 2003.
When the defence wound up its case in March this year, the Magistrate asked the prosecution and defence counsels to make written submissions and set March 17, 2004, as the day when the verdict would be delivered.
However, on Friday, 10th October 2003, the defence lawyers were informed that judgement would be delivered on Tuesday 14th October 2003 and asked that the written submission be handed in by Saturday, 11th Oct 2003.
The sudden change of date has placed Irene and Tenaganita in a difficult situation; The leading counsel for Irene is abroad on a fact finding mission and her other lawyer is engaged in another matter in the high court. Therefore it has not been possible for the defence to make its written submission and furthermore Irene's lawyers will not be able to be present in court on 14th October when the verdict is delivered. The abrupt decision to conclude the trial in this manner appears to constitute a miscarriage of justice.
* Irene Fernandez was arrested by the police at her home on 18th March 1996. She was charged under Section 8A(1) of the Printing and Publications Act 1984 for "maliciously publishing false news" through the issue of a memorandum entitled, "Abuse, Torture and Dehumanised 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 RM20,000 or both.
* Bail was posted at RM3,000 and her passport was impounded as part of the bail condition. Each time she wants to leave the country for any reason she has to make an application to the court for the release of her passport.
* The Memorandum, "Abuse, Torture and Dehumanised Treatment of Migrant Workers at the Detention Camps" was released by Tenaganita in August 1995. The findings in the Memorandum comprises information that Tenaganita received from interviews with more than 300 ex-detainees during the course of its research on "Migration, Health and HIV/AIDS."
* The interviews with the ex-detainees showed consistent abuse, torture, denial of access to lawyers, denial of proper medical care, widespread diseases, lack of food and water and even deaths in the detention camps due to negligence on the part of the authorities. The Memorandum describes treatment of detainees in a manner which violates Article 5 of the Universal Declaration of Human Rights, which prohibits torture or cruel, inhuman or degrading treatment or punishment.
The facts contained in the memorandum gave rise to expressions of concern by individuals and organisations locally and internationally. The Malaysian authorities, instead of investigating the allegations, promptly denied that anything was amiss and instituted criminal proceedings against Irene.
"On the first day of my trial, I had stated to the press that since the government had refused to conduct its own independent inquiry, this trial will then become the public inquiry I asked for. We hope that through the trial, the truth will be revealed. As far as we are concerned, we raised, in a legitimate way, with authorities, issues of public concern, e.g.:- problems faced by migrant workers, inside and outside detention centres." (Irene Fernandez, June 1997)
* On May 30th, 1996, on the advice of her lawyers, Irene made an application to transfer the case from Magistrate Court to High Court. One of the reasons for the application for transfer is that the case will be best adjudicated in the High Court. This is because Section 8A of the Printing and Presses and Publications Act, 1984, under which Irene is charged, seems to negate Article 10 of the Constitution, which guarantees the right to freedom of expression. And the key issue of the treatment of migrant workers at the detention centres has become a national and international concern. However, on 05 June 1996, judge Hashim Yusof, dismissed the application for transfer to High Court.
To date, the trial of Irene Fernandez is the longest running trial in Malaysian legal history. During this period, Irene has been in court for over 310 days of full hearing and she has made over 30 applications for the release of her passport to travel to foreign countries to represent the organisation and for medical treatment.
The trial of Irene Fernandez was postponed for about two years as the court would not provide a Bengali interpreter. It reconvened on 14th January 2003.
On 17th March 2003 the defence lawyers for Irene wound up the defence case. The decision by the defence to conclude its case was made after it had made several unsuccessful attempts to get women witnesses who had been detainees more than seven years earlier. On the same day the Magistrate set March 17th, 2004 as the day the judgement would be given after receiving the submissions from the defence and prosecution.
However the day of judgement was suddenly brought forward to 14 October 2003.
During the trial, Tenaganita brought five former detainees from Bangladesh to testify on her behalf. They testified on conditions in four different detention camps: Semenyih, Kemayan, Tanah Merah and Langkap. The testimonies of the five former detainees were much more graphic and painted a picture of the conditions in the detention centres that were far worse than what was described in the Memorandum. Almost all the former detainees were in tears describing the torture and sexual abuse that they had experienced. Although these witnesses were rigorously cross-examined by the prosecution their testimony was unshaken. On the other hand, the prosecution claimed that the police had interviewed 36 former detainees during the course of its investigations but not a single detainee was produced in court to testify on behalf of the prosecution.
Golam (former detainee): Golam says he will never forget the repeated beatings they suffered in the camp. "The police always beat us with a police stick. They beat us on our heads, bodies and legs for no reason. Sometimes they just came and beat up everybody - it was an everyday routine. They would beat us if they found us talking, not sleeping at night or for any reason at all."
The detainees lived in constant fear, their hearts always tense. "We became unconscious after the beatings. There was no bleeding but we were in serious pain all the time. No police came to help us, but we helped each other. I never found a doctor in the camp." [Source: March 11, 2000 Malaysian 'death camps': A survivor recounts, Ajinder Kaur, Malaysiakini]
Mozumder (former detainee): Mozumder told the court that 120 Burmese inmates were forced to perform oral sex on one another.
"Police were watching how was their penis size, how they (the inmates) were performing, whether they were sucking the penis or just putting it in their mouth," he said, in reply to a question by the defence counsel.
He added that the inmates who were forced to suck the penis immediately rushed to the toilet after the act was over.
"Most of them closed their mouth with their hand and ran towards the toilet to vomit. Those who had oral sex performed on them stayed standing in the field. Their faces were pale, shamed. Most of them started crying. Some of them covered their eyes with their hand and some of them looked down to the ground," he recalled. He testified that he could not eat his meals after witnessing the incident. [Source: Friday, May 12, 2000, Sick inmate died after being kicked by police, Ajinder Kaur, Malaysiakini]
Zakir Hossain (former detainee): "His whole body was swollen - his arms, legs, knees, face and stomach," said Zakir Hossain, 37, who was detained in Kajang's Semenyih camp for illegal immigrants six years ago.
"When I told the police, the reply was, "If the doctor comes, you can explain to him." The policeman knew how sick he was because he had seen him. The sick inmate told the police, "I'm very sick, I can't move my hands and legs. Please call a doctor..."
Zakir told magistrate Juliana Mohamad that he asked the police to get a doctor about a week before the sick inmate passed away.
"He was in pain and he sometimes screamed, "My whole body is painful, please help me". He cried. I couldn't do much, but gave some consoling words that he would get well one day. I didn't think he would die because I thought the doctor would visit him," he added.
"Seven to eight days before he died, he could move his body slightly but with a lot of effort. He could eat with other's help. Someone had to carry him to the toilet," he recalled.
Zakir said that the sick inmate's condition got worse, and he was told of his death five to seven minutes after he passed away.
"He died in Block C, late in the evening. I saw his body. It was lying on the floor. His face was not covered. [Source: - June 28, 2000, Inmate died without medical help, says witness, Ajinder Kaur, Malaysiakini]
Penthouse, Wisma MLS
31 Jalan Tunku Abdul Rahman
50100 Kuala Lumpur, Malaysia
Tel: 6 03 26913681 Fax: 6 03 26913681
Posted on 2004-01-09
WHO IS ANSWERABLE FOR THESE ATROCITIES?
Mahathir Mohamad, Minister of Home Affairs (1986-1999) and Megat Junid Megat Ayub, Deputy Home Minister (1986-1997).
I recall that in 1995, when Irene Fernandez submitted the Memorandum from Tenaganita on the unbelievably cruel treatment suffered by migrant workers detained by the Immigration Department, it caused the Mahathir administration acute embarrassment.
There was talk in the streets that then deputy home minister Megat Junid (right) was personally implicated in the whole ugly affair as his brother (or brother-in-law) owned an employment agency responsible for importing Bangladeshi and Burmese workers and cruelly mistreating them. Which explains why the police were ordered to launch a vicious attack against Irene Fernandez - "wicked messenger" and bearer of bad tidings - rather than investigate the serious allegations documented in the Tenaganita memorandum and prosecute those responsible for these inhuman acts.
In those days there was no Malaysiakini or Malaysia Today - and no bloggers too - and so the shameful matter was easily ignored or played down by the BN-controlled mainstream media. Only Aliran and the international press kept the Irene Fernandez case in the news. Megat Junid died of prostate cancer on 24 January 2008, leaving a long wake of scandals; but his boss Mahathir Mohamad is still alive and stirring up a whole load of shit.
After 13 years, it's high time the Malaysian government apologized to Irene Fernandez by dropping all charges against her and awarding Tenaganita RM13 million in long overdue compensation - one million for each year the stupid trial has dragged on.
But first we shall have to boot out that pea-brained poison-toad Umno politician in the Home Ministry who goes by the name Syed Hamid Albar - son of Syed Jaafar Albar, the infamous "Malay Ultra" from Yemen who, in 1965, suggested arresting Lee Kuan Yew under the ISA and imposing martial law on Singapore for the PAP's opposition to "Ketuanan Melayu." Bapa borek anak rintik (like father, like son).