Irene Fernandez
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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 the 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 is 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.

Background

  • 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, 000.00 or both.
  • Bail was posted at RM3000 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 30, 1996, on the advice of her lawyers, Irene makes 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 the Malaysian legal history. During this period, Irene has been in the court for over 310 days of full hearing and she had 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 2 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 17, 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.

THE TESTIMONIES

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 the 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 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

 

TENAGANITA

Penthouse, Wisma MLS
31 Jalan Tunku Abdul Rahman
50100 Kuala Lumpur, Malaysia
Tel: 6 03 26913681 Fax: 6 03 26913681
Email: tenaganita@yahoo.co.uk

Posted on 2004-01-09
 
Asian Human Rights Commission
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