Oct 15th, 2003
The Kuala Lumpur Magistrate・s Court will give its verdict tomorrow on the ．false news・ trial involving labour rights activist Irene Fernandez.
If magistrate Juliana Mohamed issues the guilty verdict, Fernandez could face up to three years in prison and/or a fine of up to RM20,000.
Earlier today, the activist continued her oral submissions for almost three hours and this was followed by submissions from lawyer Ramdas Tikamdas, who held a watching brief for the Bar Council.
Following Fernandez・s personal submission in response to the prosecution・s 82-pages of written submission, defence lawyer Edmund Bon applied to magistrate Juliana to permit Ramdas to speak on behalf of the defence.
In his request, Bon said that in the exceptional circumstance where lead defence lawyer M Puravalen was unable to be present in court, "the Bar Council has elected a senior practitioner in this area ... to make application for a legal submission."
Puravelan is currently away on a human rights fact-finding mission in Pakistan and is not expected to return until Oct 20.
The defence team was put in quandary after a last-minute notice by Juliana to bring forward the case from March 17 next year as she will be leaving the judicial services this Friday.
DPP Stanley Augustin however objected to the defence・s request, arguing that the Bar Council was not present to observe the trial at all times, and that a submission by uninvolved parties at this stage would start a "dangerous precedent".
"The Bar Council has no business (to make a legal submission) here," he said to a chorus of boos from the audience who packed the courtroom.
When asked by Juliana as to why Fernandez・s own defence team was not making their own submission, Bon said: "I am not instructed to make a legal submission... Ramdas as a friend of the court and a senior practitioner would be better able to make a legal submission.
"It is known that on a watching brief status, the Bar Council has been allowed to (be heard) on an application to the court," he said, adding that Ramdas would be submitting on "the law as it applies to the facts of the case".
After hearing from both sides, Juliana granted Ramdas his application to speak for 10 minutes.
HOPE FOR A JUST DECISION
In his submission, Ramdas urged the court to examine the said memorandum in its totality when determining whether it contained ．false news・.
When asked to comment on the day・s proceedings, Fernandez said: "I am very appreciative of the Bar Council and what was stated by Ramdas.
"I tried my best. I thought I was able to clearly show how the evidence reflected the truth," she said in relation to how she performed in presenting her three-hour submission today.
"I hope (the magistrate) will make a just decision tomorrow," she added as she was mobbed by a crowd of supporters outside the courtroom.
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.
Her trial, which began on June 10, 1996, is considered the longest criminal trial in the country・s history.
The main part of today・s trial saw Fernandez personally responding to the prosecution・s submission in four parts: testimony evidence by former camp detainees, dispute over the number of interviews Fernandez conducted, investigations by former Sun journalists, and the reasons to why she chose to make her findings public.
In particular, she commented on the unfairness of the prosecution in laying criminal charges against her, since the same information that was gathered by The Sun journalists Steven Gan (now malaysiakini editor-in-chief), Selvi Gopal and Umah Papachan won the Malaysian Press Institute award in October 1996.
"They wrote an article (based on their own findings) called ．Death camp・ that was not allowed to be printed. But after the memorandum was published, they came out with the (rewritten) article ．Shattered Dreams・.
"This piece of investigative journalism won them an award given by Prime Minister Dr Mahathir Mohamad, who was also home minister at the time.
"If the Sun journalists can get an award from the same story, the same truth, the same conclusion, what will I get? What did I get?"
"(Instead) I am charged with publishing ．false news・ under section 8A of the Printing Presses and Publications Act.
"In the prosecution・s submission, they concluded that the Sun journalists had been irregular and dishonest in their ways of finding information.
"The prosecution fails to understand, or does not want to understand, what investigative journalism is, especially in areas of sensitivity that involves the police, immigration and deaths in custody.
"It is required that they go undercover because the people who knew of the deaths and who saw the bodies being brought into Kajang hospital feared being visible, in case they face harsh consequences.
Fernandez also said the prosecution・s case was weakened for only bringing evidence from one detention camp, the Semenyih Immigration Detention Camp in Kajang, Selangor.
This was despite her memorandum, in addition to Semenyih, touching on conditions in other detention camps in Juru, Langkap, Machap Umboo and Tanah Merah.
On the evidence by former detainees who acted as defence witnesses, Fernandez responded to each point that the prosecution had submitted - on the forced stripping of detainees, the detainees being forced to be shaved bald on arrival at the camp, the conditions of the toilets, detainees being refused a fresh change of clothes, a limit of two glasses of water per day, the emergence of beri-beri in the camps, the corruption of police officers, sexual abuse, and human trafficking.
"The primary evidence of former detainees of immigrant camps develops a pattern, a condition of abuse where fear is created through torture, so that detainees, even when sick, fear to ask for treatment, and then they would even die.
"We see a pattern when food is not given, where (there is no) sufficient nutrition, where water is limited to two cups, where thiamine deficiency (which cause beri-beri) takes over the weak body of the detainees, and death is the result.
"The issue is not just the number of deaths in camps, but that there were deaths - not by accident, not by committing suicide, but from a condition of abuse and of torture in the camps.
She said that a number of defence witnesses had testified about their harrowing experience in the camps.
"Abdul Alim was kicked for asking for medicine for his toothache... Mozumder, with his body covered in sores, it was very evident how he has suffered.
"The denial of access to treatment have actually caused deaths in the camps.
The witnesses had also testified in court about being forced to perform oral sex on one another by the camp authorities.
"(From the testimony), it is very clear that sexual abuse is a tool that was used in camps to completely destroy any dignity that was left with migrants who were detained.
"This form of sexual abuse was seen to be enjoyed by the police, who were laughing while watching - sexual abuse was used to destroy the dignity of the detainee."
She also said that in choosing to prosecute her over the memorandum, key issues raised in that document was not addressed.
She said the key reason to publicising the memorandum was to expose how Malaysia-Thai border immigration authorities and police were aware that workers were being trafficked, in particular at the crossing in Golok and Haadyai.
"Unless the smuggling of human beings are taken seriously, we will continue to have the victims further punished, as it had happened between 1992 and 1995."
"The problem of recruiting workers and bringing them into the country illegally was not addressed. It is interesting to note that recruiters were not arrested or charged.
"The question then remains: why do we criminalise victims of human trafficking?
Ramdas, who was granted permission to make a legal submission, said that the Supreme Court decision on PP v Ping Chen Choon (1994) makes clear that one must look at the memorandum in totality in order to determine its falsity.
Following that, one must then prove, beyond all reasonable doubt, that Fernandez had published with ．malice・, he said.
"If in substance, the memorandum is borne out by the evidence adduced in court by the witnesses, then the memorandum cannot be said to be false within the meaning of Section 8A(1) of the PPPA,
"In fact, based on the testimony of witnesses, it appears that their treatment and conditions of detention is far worse than stated in the memorandum.
"It must be borne in mind that (Fernandez) is the executive director of (labour and migrant NGO Tenaganita)... in the course of interviewing migrant workers relating to HIV/Aids, (she) received various complaints on the treatment and conditions in detention camp.
"Tenaganita than published the memorandum in the discharge of her civic duties and in line with the object and purpose of the organisation.
"It cannot therefore be said that the accused published the memorandum without lawful excuse or maliciously."
Further, said Ramdas, Fernandez had taken reasonable measures to verify the truth of the news, through interviews and statements by the migrant workers - as evidence that one cannot presume of malice on her part.
The hearing finished at 4:45 this evening. Magistrate Juliana said she will announce her verdict at 12 noon tomorrow.
Posted on 2004-01-09