The criminal appeal of Irene Fernandez, age 62, begins (Oct. 28-30) at the Criminal High Court in Kuala Lumpur. It is the longest running legal attempt in Malaysian history to punish a bearer of bad news. In August 1995, Fernandez made public her report, Abuses, Torture and Dehumanised Treatment of Migrant Workers at Detention Centres. It was based on interviews with 300 detainees, each of whom Fernandez spoke with in her role as director and co-founder of Tenaganita, a non-governmental organization (NGO) in Kuala Lumpur that has worked to protect the rights of foreign workers since 1991.
She gave voice to bloodied and abused immigrants held in centers pending deportation. Unspeakable filth, dehydration and rape of children were part of her documented report. In 2003 she was convicted of "maliciously publishing false news," under Section 8A(2) of the Printing Presses and Publications Act (1984) - even though the Malaysian government did admit to 46 detention-center related deaths.
Released on bail pending her appeal, Fernandez continued her work on behalf of women, children, migrant workers and the poor in Malaysia. The PPPA gave absolute discretion and broad powers to the Minister of Home Affairs to ban or restrict "undesirable publications." Later it was found to breach the fundamental right to freedom of expression by the UN Human Rights Committee and other constitutional courts around the world.
Now 13 years and 300 court appearances later, the legal wrangling may end. High Court Judge Yang Arif Hakim Dato' Haji Mohamad Apandi Bin Haji Ali wants to resolve Fernandez's case this year. Perhaps Judge Apandi's call for resolution may signal a positive turning point. In a country struggling to fight against corruption, perhaps Judge Apandi's court will see justice finally served. The facts in Fernandez' favor are too overwhelming for revisionist history.
Fernandez was born in 1946 in Malaysia, growing up in migrant worker conditions. Her father was a rubber plantation worker. Her first-hand knowledge of the hardships and easy victimization of such laborers was the underpinning of her passion to serve the powerless. Long before her 1996 arrest sparked her current ordeal, Fernandez had been promoting the poor since 1970. She organized the first textile workers union and developed programs to create trade unions in free trade zones. Her consumer education programs taught children about basic needs, safety and environmental protection. Her work with grassroots organizations led directly to laws against domestic violence, sexual harassment and improvements to rape laws. (http://www.rightlivelihood.org/irene-fernandez.html)
Yet in March 1996 Fernandez was charged for "maliciously publishing false news." Her trial dragged on for seven years. In a surprise fast-tracking of procedure, Fernandez' lawyers were given only two days to make final submissions based on seven years of trial and 50 witnesses before final judgment by Judge Juliana Mohamed. Interestingly, the prosecution was ready with an 82-page submission.
In 2003, Magistrate Juliana Mohamed ruled Fernandez' report - the torture, denial of medical treatment, forced stripping, lack of proper food, unsanitary toilets and police corruption in detention centers toward migrant workers held for deportation from Malaysia - to be false. Prosecutor Stanley Augustin pushed for the harshest sentence as a deterrent to any who might throw Malaysia's good name into disrepute amid world attention. "The court must take into account the interest of the nation. Freedom of speech is not freedom to say anything you like. It must be confined and cannot hurt the public or national interest," said Augustin.
At the sentencing, Fernandez said, "I want my children and the children of all the people I work with as head of Tenaganita to enjoy and live in a society that is peaceful, where we do not fear state violence." Facing a maximum sentence of three years, Fernandez was sentenced to one year of imprisonment, but was released pending appeal. And over 13 years, Fernandez' legal process has taken absurd twists and turns, all from court mismanagement.
Statements from five key prosecution witnesses and all of the 21 defense witnesses have gone missing. A computer virus wiped out hearing notes.
Over 1,700 pages of trial records were missing. A massive re-typing of notes was undertaken, and content was still awaiting transcription as of August 2008. Currently 3,648 pages are divided into eight volumes. Judge Apandi has ordered the appeal to move forward despite any illegible or incomplete notes. The Criminal High Court should dismiss this case due to an inaccurate trial transcript and reconstituted court records. But when a case is high profile, politics can come into play, and not just in Malaysia. (Sometime look into the case of People of California v. Caryl Chessman, a criminal who was a controversial critic of the justice system. His execution for kidnapping was based on a law that was later repealed and an incomplete trial transcript.)
But Fernandez is no criminal. She is the teller of uncomfortable truths, with a long activist history in protesting abuses and enacting reforms. In 2005, she earned the Right Livelihood Award, often called the "Alternative Nobel Prize" for "... for her outstanding and courageous work to stop violence against women and abuses of migrant and poor workers." Established in 1980, the Right Livelihood Award honors and supports those "offering practical and exemplary answers to the most urgent challenges facing us today." Fernandez is one of 133 Laureates from 57 countries.
Now that is a recognition of which Malaysia should be proud. Conversely, the country should publicly decry those who practice or support abuse and corruption through the manipulation of its laws. What is shameful are the efforts to hide the existence of deplorable conditions. What throws a country into disrepute is its resistance to righting wrongs. Irene Fernandez embodies the best of Malaysia - grace, strength, courage and endurance - even as the worst elements of Malaysian power have long sought to silence her. Few would have the determination to gut through the uncertainty of facing prison and all the horrors it might hold, but Fernandez has endured a 13-year legal ordeal. As an advocate of non-violence and legal means, Fernandez draws attention to the plight of the undesirables with her personal struggles.
The findings of her report cannot be false. Nor is truth ever malicious. Fernandez has been a role model of right living, despite the sword of Damocles that has dangled over her head for the past 13 years. That's a long time to live under restricted freedoms, a confiscated passport and being barred as an election candidate. Whether justice is dispensed depends on the morality of those in charge and their own degree of courage. But I hope for the best. I take my cue from Fernandez' reported serenity and from the faith that fueled Martin Luther King when he once wrote, "The moral arc of the universe is long but it bends toward justice."