Irene Fernandez
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IRENE'S TRIAL IN BRIEF

TRIAL OF IRENE FERNANDEZ CHARGED UNDER SECTION 8A(1) OF THE PRINTING AND PUBLICATION ACT OF 1984

Trial resumes on 14th January 2003 at 9. 00am at the Magistrates Court 5B, Jalan Tun Perak, Kuala Lumpur after a lapse of TWO years.

Irene Fernandez is the director of Tenaganita, a women・s non-governmental organization based in Kuala Lumpur, Malaysia which deals with health issues. She has been charged with "maliciously publishing false news" and faces a possible sentence of up to 3 years in prison if she is found guilty. Her trial, which began in June 1996, has yet to reach its conclusion over the past 6 years. She is currently free on bail pending the outcome of her trial.

She was charged after Tenaganita published a report in August 1995 about abuses in camps or migrant workers. The report was based on interviews with over 300 migrant workers who had been detained as illegal immigrants. The report detailed treatment which violated Article 5 of the UDHR, which prohibits torture or cruel, inhuman or degrading treatment or punishment. Many former detainees were reported to be suffering from dehydration and malnutrition. Some of the women said that they had been sexually abused in the camps.

Others claimed that they had been beaten and forced to stand in the hot sun for hours if they asked for water. Medical treatment was also said to have been denied to the sick.

Over 3 million migrants from countries such as Indonesia, the Philippines and Bangladesh have entered Malaysia in search of work. They play an important role in Malaysian economic life. Increasing prosperity has expanded opportunities for employment to such an extent that labour shortages have become apparent.

However, thousands have ended up in detention camps. Some had entered the country illegally; others had arrived with the necessary papers but encountered problems after disputes with their employers. In 1996, the Malaysian authorities admitted more than 98 detainees had died in detention camps in the previous four years, but they denied all allegations of human rights violations. The authorities also set up a visitors・ panel to study conditions in the camps, but this has so far failed to publish its findings.

Instead of conducting a full, public inquiry into the conditions in the camps, the authorities・ response to the Tenaganita report was to charge Irene Fernandez with "maliciously publishing false news" under Section 8A of the Printing Presses and Publication Act, Malaysia. This is a violation of her right under Article 19 of the UDHR, to freedom of opinion and expression. She has been charged because she cared about the rights of migrant workers and dared to speak out.

Since, amendment have been made to the Immigration Act where a foreigner with irregular document will be arrested and face sentence or whipping.

WHAT IS IN THE MEMORANDUM?

Tenaganita wrote the memorandum as a way of documenting migrants・ experience of abuse, torture, exploitation and advocating for change. In short, the memorandum contains:

  • A critique of Malaysia・s industrialisation development strategy and its reliance on cheap, vulnerable and temporary labour.
  • An analysis of how migrant workers who enter the country legally end up becoming illegal and undocumented because of the unscrupulous dealings of employers and agents.
  • Camps based on the testimonies of ex-detainees including reports of deaths and abuse in the camps, an elaborate system of corruption among the camp staff, lack of proper facilities such as toilets, insufficient food, water that led to diseases such as beri-beri and lack of medical care.
  • A series of recommendations, including that the government establish an independent commission of inquiry to investigate the allegations and experiences of detained migrant workers and make public the findings for positive change.

THE MEMORANDUM IS ABOUT MORE THAN THE DETENTION CAMPS

A memorandum has been a form of soft tool used by NGOs to communicate with the government in a comprehensive way on a specific issue of public concern. This has been the experience of Irene who has been an activist for almost 30 years. NGO・s have carried out discussions and dialogues with various government agencies and a program of advocacy developed.

Similarly, the objective of publishing the memorandum in this case was:

  • To get the government to take actions to change the conditions in the camps.
  • To develop a comprehensive policy and legal framework for effective protection of migrant workers.
  • To develop a monitoring mechanism so that complaints related to migrant workers, enforcement agencies, recruiting agents and detention camps could be effectively dealt with by the state.
  • To propose recommendations for actions and information based on the overview and the analysis of migration process, recruitment and other related issues provided by the memorandum and arising from the information gathered by Tenaganita.

DPP Shamsul in cross-examination suggested that the allegations in the memorandum as stated in the charge sheet were false. He further alleged that Irene or her researchers gathered the information in a lopsided way.

Rebutting these suggestions, Irene maintained that the allegations in the memorandum were not false. She said although she did not personally witness what had happened in the camps, she had proof. She had also disagreed with Shamsul・s suggestion that the steps taken by her or her researchers in gathering the information were lopsided, as they did not contact the authorities. She said as an NGO, Tenaganita・s role was to bring the issue to the authorities attention for further action. (NST 27-5-99). She said that the role of NGOs is not to make conclusions on who is right or wrong but to monitor the human rights violations. Tenaganita did this by compiling the human rights violations in the detention camps into a memorandum, which was then sent to the relevant authorities.

WHY DID TENAGANITA CHOOSE TO GO TO THE PRESS?

Tenaganita・s decision to go to the press was determined by 4 reasons:

1. Channel of information outflow to society V Irene stated that the organizations decision to hold a press conference on July 27, 1995 to highlight the camp conditions was because Tenaganita views the media as a very important and integral system of reaching the people. The media is a channel for information outflow whereby society gets to know facts.

2. Extreme nature of human rights violations V The human rights violations in the camps were of extreme nature. For example, the lack of food and water caused beri-beri to the detainees. This was compounded by lack of or no access to medical treatment resulting in slow death. The lack of water and facilities gave rise to unhealthy conditions like accumulated faeces in the toilets that lead to dysentery, skin problems and chicken pox. Torture meted out to detainees resulted in them getting sick and further abused. These were other extreme forms of human rights violations. All these needed immediate attention.

3. Tool for advocacy and good governance V The media channels are powerful avenues to promote advocacy in a legitimate way, as well as reaching the appropriate authorities to effectuate change. Most importantly the media serves as a tool to check and balance the acts of the government. It places great pressure on the government to develop good governance and be accountable. Irene・s experience in the campaign on domestic violence displayed that the media had played such a vital role to bring about legislative change and sensitise the police to the problems of battered women.

4. People・s right to know V Most importantly, the people have a right to know what is happening in institutions like detention camps which are run by the state. Releasing the information to the media forces the state to be more responsible and accountable for their own action.

WHAT DID SOME OF THE FORMER DETAINEES SAY IN COURT

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 yesterday 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

"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 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

Posted on 2004-01-09
 
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