UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL
ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM
Update on Urgent Appeal 17 October 2003
[RE: AHRC UA-990205: Malaysia: Irene Fernandez Charged Under Printing Presses and Publication Act of 1984 on 05 February 1999]
UP-43-2003: MALAYSIA: Human rights activist Irene Fernandez found guilty of maliciously publishing false news
MALAYSIA: Update on Irene Fernandez charged under Printing Presses and Publication Act of 1984
The Asian Human Rights Commission (AHRC) has received information that human rights activist Irene Fernandez, who 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 in 1995 on alleged torture and death in immigration detention centres, was found guilty by the Kuala Lumpur magistrate's court of maliciously publishing false news yesterday (16 October 2003). Irene faces up to three years in prison and/or a fine of up to RM 20,000. Your urgent action is required to request the Government of Malaysia to quash the judgement against Irene Fernandez.
To see our previous appeal regarding this case, please see:
[AHRC UA-990205: Malaysia: Irene Fernandez Charged Under Printing Presses and Publication Act of 1984]
Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
Human rights activist Irene Fernandez was found guilty by the Kuala Lumpur magistrate's court of maliciously publishing false news on 16 October 2003. She was charged under section 8A(1) of the Printing Presses and Publications Act 1984 for "maliciously publishing false news" through the issue of a memorandum called Abuse, Torture and Dehumanized 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 RM 20,000 or both. The trial has been ongoing for over 7 years since 10 June 1996 during which time Irene has been on bail and her passport impounded. Her trial is considered the longest criminal trial in the country's history.
Under the "exceptional circumstances" that her lead counsel Mr. Puravalen was absent, and instead with lawyers from the Bar council present in court 15 October 2003, Irene Fernandez personally completed her oral submission, standing in the dock in reply to the Prosecution's written submission.
Mr. Ramdas Tikamdas, who held a Watching Brief for the Bar Council, applied for leave of court to submit on points of law relating to the case in the interests of justice, as this was an extraordinary case where lead counsel was not present. The Court allowed the Bar Council's submission despite the Prosecution's objections.
In his submission, Mr. Ramdas stressed that:
- under the law the publication of false news is not an offence in itself unless it is published "maliciously" or without lawful excuse. Irene, as head of non-government organization whose object is to look into the affairs of migrant workers in the country was discharging her civic duty. The memorandum was based on information which was collected through research conducted about migrant workers and HIV/AIDS. There was no evidence of malice on the accused's part, who should instead be commended for doing her public duty in the cause of human rights.
- the presumption of malice may be rebutted upon evidence that prior to publication the accused had taken reasonable measures to verify the truth of the news. The "reasonable measures" taken in this case were the complaints, statements and interviews by the migrant workers.
-the Court should uphold Article 10(1) (A) of the Federal Constitution to the right to freedom of speech and expression
-that it was deeply disturbing that the response of the authorities into allegations of human rights abuses was a prosecution of the accused resulting in a trial of almost 300 days over 7 years involving incalculable man hours, public expense and resources of the state.
From 1993 to 1995, more than 47,000 migrants were detained at Semenyih Detention Centre. There have been abuses and deaths in the detention centre. In August 1995, Tenaganita released a reported exposing the inhumane conditions in the detention centre. Tenaganita reported on overcrowding, unhealthy conditions, insufficient food, water and medical treatment in the detention centres. It was confirmed that at least 45 detainees had died, 42 of them in Semeyih. Ten had died of beri-beri while 12 had died of "gastric". In mid-1996, government sources revealed that 98 detainees had died.
In June 1996, Irene Fernandaz, director of Tenaganita, went on trial charged under the Printing Presses and Publication Act with maliciously publishing "false news" in Tenaganita's report on the alleged torture and deaths in detention centres for undocumented migrant workers. The police questioned her in relation to alleged criminal defamation charges regardings the organisation's research, and charged her with withholding evidence when she refused to hand over research documents.
Send a letter, fax or email to the addresses below and express your concern regarding this matter.
1. Datuk Seri Dr. Mahathir Mohammad
Prime Minister's Office
Federal Government Administration Centre
Fax: 60-3-2984172, 2383784
2. Attorney General of Malaysia
State Attorney General's Chambers
9th Floor, Yayasan Sabah Building
88990 Kota Kinabalu
3. Human Rights Commission of Malaysia (SUHAKAM)
29th Floor, Menara Tun Razak
Jalan Raja Laut
50350 Kuala Lumpur
Tel: +60 3 2612 5600
Fax: +60 3 2612 5620
4. Mr. Mohamed Dzaiddin Abdullah
Chief Justice of Malaysia
Federal Court of Malaysia
Bangunan Sultan Abdul Samad
Jalan Raja 50506
Tel: +603 2939011
5. Ms. Hina Jilani
Special Representative of the Secretary-General on the Situation of Human Rights Defenders
c/o OHCHR-UNOG, 1211 Geneva 10,
Fax: (41 22) 917 9006
6. Mr. Param Cumaraswamy
Special Rapporteur of the Commission on the independence of judges and lawyers
Office of the United Nations High Commissioner for Human Rights,
Rue des Paquis 52, Geneva
Tel: +41 22 9179130
Fax: +41 22 9179006 / 603 2274 9834
7. Mr. Ambeyi Ligabo
Special Rapporteur on the Promotion and Protection of the Right to freedom of Opinion and Expression
Fax: +41 22 917 9006
RE: Human rights activist Irene Fernandez found guilty of maliciously publishing false news
I am shocked beyond belief at the conviction and the sentence of Irene Fernandez by the Kuala Lumpur magistrate's court on 16 October 2003. I consider the charge baseless and judgement contrary to the evidence available, and the sentence cruel. I consider Irene Fernandez as a compassionate person who had engaged in the laudable aim of helping unfortunate persons. She should have been honoured and not treated as a criminal.
I call upon the Malaysian judiciary to quash the judgement against Irene Fernandez. I also call upon the Government of Malaysia to abolish this law called the Printing Presses and Publications Act 1984 with "maliciously publishing false news". I further urge the Government of Malaysia to ratify ILO Convention 87 on Freedom of Association and Protection of the Right to Organise; ILO Convention 97 on Migration for Employment; the UN Convention on Protection of Rights of Migrant Workers. Thus, the Government of Malaysia must uphold the rights of workers by ratifying and implementing these treaties.
Kim Soo A
Urgent Appeals Programme
Asian Human Rights Commission (AHRC)
** If you want to contact the Urgent Appeal program of the AHRC, kindly send an email to firstname.lastname@example.org and NOT to email@example.com
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Posted on 2004-01-09