Irene Fernandez
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October 14

The trial of Irene Fernandez which began at 2.30 pm on 14 October 2003 saw the presence of a wide range of representatives from civil society, the media, foreign embassies, members of parliament, representatives of the Bar Council, leaders of Opposition parties, international women and human rights activists, family and friends. The Bar Council was represented by senior counsel Ramdas Tikamdass, Amnesty International by Edward Saw, Human Rights Association of Malaysia by Elizabeth Wong (the DPP however refused to recognise Ms Wong・s presence in court as according to him she was " not dressed properly"). The Defence was represented by Edmund Bon and Amer Hamzah in the absence of lead counsel Mr. Puravalen. The presiding magistrate was Puan Juliana Mohamed.

In the packed courtroom where there was only standing room for many, Public Prosecutor Stanley Augustin began by stating that the Prosecution had not received the written submissions from the Defence. The Defence stated that its lead counsel Mr. Puravalen was on a human rights fact finding mission on terrorism in Pakistan. The Defence pointed out that it received the Prosecution・s written submission on 10 October 2003 at 5pm.

The Prosecution submitted that it had kept to the dateline and submitted an 82 page written submission and that the Defence had been given until 30 June 2003 to make its submissions as directed by the Court. The Prosecution strongly urged the Court not to allow any appeal for more time to make a written submission as the dateline had been agreed by all parties.

The Defence replied that a schedule had been agreed to by all parties i.e. written submission by Defence by 30 June 2003, Prosecutions・ s response by 15 October 2003 and Defence・s response by 17 November 2003. Accordingly, the Defence had the right to respond to the Prosecution・s submission and requested the Court・s permission to allow the Accused, Irene Fernandez to deliver an oral submission.

The magistrate allowed Irene Fernandez to make an oral submission "in the interests of justice" but it would be restricted to the points raised by the Prosecution in their reply.

The Prosecution raised objections to Irene making submissions from the Bar seated next to her counsel as it would breach court decorum and insisted that she should submit from the dock which was the correct place for an accused.

Irene Fernandez began the oral submissions from the dock by thanking the magistrate for allowing her to make the submission and for taking the time to come back to conclude this trial which had gone on for 7 years, before she left government service on 17 October 2003.

Irene stated that she would respond to the Prosecution・s submission by referring to three layers of evidence which had been presented in Court to show the truth of the contents of the Memorandum "Abuse, Torture and Dehumanised Treatment at the Detention Camps".

The first layer was the primary evidence of 5 witnesses who were former detainees in the camps; the second layer are the interviews of 335 ex-detainees during a participatory action research carried out on Migration, Health and HIV Aids; and the third layer was an independent investigation carried out by a group of journalists from the Sun newspaper, Steven Gan, Uma Papachan and Selvi Gopal. This group was awarded the Prime Minister・s Award for Investigative Journalism for their report on Semenyih Camp.

Irene took the Court back to the evidence which had been presented in Court to rebut the areas which were identified as false in the Prosecution・s submission. She took the court through the evidence of ex-detainee Gulam Maolah which demonstrated that the detainees were stripped naked, given 2 cups of water per day, beaten when requested for more water or for medical treatment and the deplorable conditions of the toilets in the camp. Irene stated that the evidence of the ex-detainees showed a pattern of systemic torture and dehumanized treatment which was the substance of the Memorandum.

Irene argued that the Prosecution had devoted 20 pages to whether the total number of ex-detainees interviewed was 335 or 340, whereas the Defence had already clarified in Court that the 340 stated in the Memorandum was a error in computation and the correct figure was 335. Irene argued that this ignored the substantive truth of the evidence from the 335 interviewees and was meant to create a diversion. Moreover, Irene pointed out that the exact number and structure of toilets highlighted by the Prosecution was not the issue but the deplorable conditions in the camps highlighted by the Memorandum. Irene remided the Court that the witness had thrown up three times in Court while giving evidence about the toilets in the camps.

In response to the Prosection・s point that there was only one death in the camps due to suicide Irene pointed out that the witness had actually seen two deaths which were not due to suicide.

Irene pointed out that torture was not only the infliction of physical pain but the trauma, fear and dehumanizing conditions experienced in the camps by the detainees constituted the torture which was referred to in the Memorandum.

The case adjourned at 4.40 pm and submissions continue tomorrow from 10.30am. Irene informed the Court she will need another 3 hours to complete her submissions.

Aegile Fernandez

National Focal Point Coordinator, Tenaganita

Posted on 2004-01-09
Asian Human Rights Commission
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