Nepali woman jailed for abortion wrongly convicted, says lawyer

Although induced abortion is illegal in Malaysia, the termination of pregnancy is legally allowed if done by qualified doctors. – AFP/Relaxnews pic, December 11, 2014.

The Nepali migrant worker who was charged, convicted and jailed for having an abortion has been punished for something she never did, the woman's lawyer said, in noting the discrepancy between the charge against her and the woman's actions.

Cecil Rajendra, who is representing Nirmala Thapa, said a careful scrutiny of the charge sheet clearly showed that his client was not charged for having an abortion performed on her, but for self-aborting at Poliklinik Ng in Bukit Mertajam.

But, a qualified medical practitioner performed the procedure strictly following Ministry of Health guidelines after Nirmala went to have her pregnancy lawfully terminated for health, mental and social reasons on October 9.

The termination was legally approved under Section 312 of the Penal Code, Cecil said in a statement.

“We reiterate, Nirmala was not sentenced for procuring an abortion, or aiding and abetting an abortion, but for performing it herself,” he said.

“And this despite the doctor making police statement confirming that he performed the termination.

“The attorney-general should seriously ask himself how is it that a woman can be charged and convicted for an act that someone else has admitted to.

“We are at a loss to understand how Nirmala Thapa was convicted and sentenced for something she never did.”

Nirmala was sentenced to a year’s jail last month.

Cecil, of law firm Amareson & Meera, said the attorney-general should strike out Nirmala's case. He also decried it as a case of selective prosecution, gender discrimination and victimisation of foreign workers.

The lawyer said the doctor, Nirmala and her male partner who had accompanied her, were interrogated and their statements recorded.

While the doctor and Nirmala’s partner were released after their statements were recorded, Nirmala was remanded at the Seberang Perai prison in Sungai Jawi pending further investigations.

He said the procedure to terminate the pregnancy was legal and in order, as attested by the fact that after exhaustive interrogation, examination of medical records and police investigation, the medical practitioner was released without any charges brought against him.

“Instead his patient, Nirmala, was charged, convicted and sentenced to a year’s imprisonment by the simple expedient of making her the sole perpetrator of the act in the charge sheet.”

He recounted that while Nirmala was resting in the clinic after the operation, there was a raid conducted by the police and Health Department officials.

Cecil also said that she had been unrepresented in court when she was charged and sentenced, as police did not inform his law firm of the date of the court proceeding.

On being appointed as her lawyers, and informed of her whereabouts, Amareson & Meera had written to the officer in charge on November 7 informing him of the firm’s appointment, inquiring as to the nature of the charge and the date she would next be produced in court.

“However, without informing us, Nirmala was produced at the Bukit Mertajam Sessions Court on November 12, 2014, and charged under Section 315 of the Penal Code and sentenced to one year’s imprisonment.

“It is important to note that Nirmala was convicted and sentenced in the absence of her lawyers; and, probably without the benefit of a properly qualified Nepalese court interpreter.

“This in itself is a flagrant breach of the rules of natural justice.”

Cecil said it took him and his team over ten days to ascertain Nirmala’s fate and locate her whereabouts.

He stressed that the fact that the doctor and her partner, besides Nirmala, had been taken in for questioning, but only the woman migrant worker was charged, convicted and sentenced.

This raised serious questions about selective prosecution, gender discrimination and victimisation of foreign workers, he added.

Cecil, who had earlier this year also represented Halimah, an Indonesian Christian reflexologist who was falsely charged and convicted by the Shariah Court that had absolutely no jurisdiction over her as she was a non-Muslim, said both cases were “tarnishing the good name of our country abroad”.

Cecil said his office is in the process of filing necessary papers to have Nirmala’s conviction and sentence quashed.

“However, the attorney-general could save his Chambers further embarrassment and do our justice system proud by forthwith calling for Nirmala’s file and striking out the charge, conviction and sentence on his own volition.”

- TMI