by Suzette Standring
November 2008
Huffington Post
It is a textbook case of laws being used to crush critics of governmental operations. Malaysia may be 9,296 miles from the United States, but the theme of authorities seeking to silence protest is a universal one. Thus when such a bell tolls, it can toll for thee.
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.”
This true Malaysian has been the victim of a miscarriage of justice. Instead of punishing the culprits a whistle-blower is subject to such shoddy treatment by the authorities.
The court should award her damages.
Irene Fernandez is a folk hero in the mould of RPK. Malaysians should be proud of her. There are few who is so compassionate and courageous as her. To me, I put her comfortably within the 10 most admired personalities in the country. More Malaysians and in particular the opposition and the those in the law fraternity should come out and support her in her fight against injustices committed by our government.
Umno government is uncomfortable with truth and reality. That is quite obvious. They would rather not know. So they silence anyone who breath any word about them. How long more can they go on like this?
That’s the problem in this country. People of principles are victimised by the BN govt. M’sian heroes are blacklisted and sham accusations are hurled against them. When will we as a country grow up and embrace sound principles as a way of life and progress truly as a nation? We have too many narrow minded and corrupt leaders and unless this changes we will always be third world.
She should be bestowed a datukship by one of the Pakatan states. She deserves the title more than Sharukh Khan.
To have sacrificed for the poor and downtrodden and at the same time punished by the government for telling the truth she should be extolled and made exemplary but in Malaysia the heartless UMNO/BN government had made her to stand trial to prove that everyone must toe their line; time will be on her side.She will be freed and that is assured.
A bad time to let the tenaganita.net domain lapse. If it’s a money / personnel problem, let me know and I’ll pay / help get the site back online. Organisations like Tenaganita are vital to Malaysia’s future prosperity.
You can get an idea of what tenaganita.net was about by seeing archived pages from the Wayback Machine. The latest copy is over a year old, but I saw the site online only a month ago.
http://web.archive.org/web/20071010054940/http://www.tenaganita.net/
“The moral arc of the universe is long but it bends toward justice” – Martin Luther King.
Great and comforting words for the Oppressed but are they true?
I don’t see it happening here. Did Altantuya Shaariibuu or Irene Fernandez get justice so far? Or Noritta Samsudin or 14 year -old Chinese national student, Xu Jian Huang when those suspected are rich and powerful and could pull cables?
Barack Obama, April 4, 2008 said this moral arc “doesn’t bend on its own. It bends because each of us puts our hands on that arc and bends it in the direction of justice. Because we organize and we mobilize, we march, we vote, we parent, we’re active in our community, we’re active in our schools.”
So he said but here the rich and powerful could stronger bend the arc more the other way towards injustice.
So many of our political elites escape accountability .
Take the masses, the ordinary people. If majority have evolved to stage in which they are imbued with a clear moral sense of what is right and wrong and how to deal right and avoid wrong in conduct towards one’s fellow men, then fine they can coalesce in Obama’s fashion to form a united front against the forces of Oppression – to bend the moral arc in the direction of justice, so to speak.
However what is the point of a only a proprtionately select few have this moral sense or conscience whilst the preponderance of majority lack it and could be galvanised to act the other way?
Do the select few stay and fight for justice taking comfort in final vindication in Martin Luther King’s terms or – considering that it may take eons to change the rest – they ought to now fast exit, take flight and separate permanently from the rest?
We are reminded of Hamlet’s dilemma.
To fight or not to fight: that is the question:
Whether ’tis nobler in the mind to suffer
the slings and arrows of outrageous fortune,
The oppressor’s wrong, the proud man’s contumely
bear the whips and scorns of time,
Or to take arms against a sea of troubles,
And by opposing fight to end them – or be ended by them!
[Adapted from Hamlet’s Soliloquy – Shakespeare].
When will we ever learn, when will we ever learn…
If life’s a stage,we have it all in Malaysia…and one which is filled with hypocrisy, discrimination, exploitation, manipulation, bigotry, pretension, religious perversion, judiciary malpractices, political hegemony, financial plunder an embezzlement of the highest and worst case scenario ( though made to look nice and reasonable on the outside ), hidden racialism.
On this stage the evil appears holy and magnanimous; the good ever silenced and sterilised.
On this stage some are more equal than others.
On this stage you have to be of the right colour to be able to see the light of the day.
On this stage you have to believe as they do in order that contracts or opportunity come your way.
Else, you are doomed.
The scripts are written, perhaps in stone.
Perhaps it’s time that the stone be thrown to the sea for the “moral arc towards justice” to exert its presence…
Irene Fernandez, I salute you for your courage, integrity, magnanimity, humility, selflessness, and for defending and upholding the sense of justice.
May God bless you.
Irene Fernandez, God bless you for your fearless and exemplary fight for the oppressed. \Happy are those who are persecuted in My name, for the Kingdom of Heaven belongs to them\ It is only because of people like you that I am proud to say I am Malaysian.
“The findings of her report cannot be false
Being a principled lady and receiver of the Right Livelihood Award
May the injustice towards her finally come to a close Freedom for her to be a helping hand to bring the nation forward”
May God bless you, Irene Fernandez, our Malaysian heroine.
I am reminded of a saying ” No Good Deed Goes Unpunished”. The end of evil has come, justice will prevail.
This is one of those cases where the punishment is the trial itself and not its verdict.
“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..”
This is one of those cases where the punishment is not in being found guilty as charged but to have to live under a cloud for 13 years and seeing your life ruined.
“This is one of those cases where the punishment is not in being found guilty as charged but to have to live under a cloud for 13 years and seeing your life ruined.” – undergrad2
But it will only make us stronger.
““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.”
— I agree absolutely….but will there be a consistency of application by the court in Malaysia without regards to any affiliation?
— I suppose the tearing up of Koh Tsu Koon’s photos does not hurt the public or national interest; nor the words uttered during that particular emotional day
Give her a formal post in 1 of the Pakatan State … Ex-Co, Adviser in Human Resource or Environment or something to her strength.
Or better, let the 5 Pakatan state form a sort of “pseudo-federal gomen” to co-ordinate their policies and let this angel of compassion and fairness to have an advisory / executive role”. She will make a heck of a shadow minister.
A form of recognition and also empower her to a certain extent to help address the inequality that exist. She might be the best person in the know
“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.”
Who defines ‘national interest’ and in the case of legislation like the Internal Security Act, ‘national security’. Who decides who is and is not a threat to national security. What is or is not national security??
She should be freed for ‘time served’ waiting for the trial and then the appeal seeing her life in ruins. Unfortunately there is no such thing.