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UPDATE (MALAYSIA): Human rights activist Irene Fernandez found guilty of maliciously publishing false news

October 16, 2003

UPDATE ON URGENT APPEAL 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: [UPDATE] Irene Fernandez Charged Under Printing Presses and Publication Act of 1984 on 05 February 1999]

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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
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Dear friends

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: [UPDATE] Irene Fernandez Charged Under Printing Presses and Publication Act of 1984]

Urgent Appeals Desk

Asian Human Rights Commission (AHRC)

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UPDATED INFORMATION:

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.

BACKGROUND INFORMATION:

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.

SUGGESTED ACTION:

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
Prime Minister's Office
Federal Government Administration Centre
62502 Putrajaya
MALAYSIA

Fax: 60-3-2984172, 2383784
E-mail: ppm@smpke.jpm.my

2. Attorney General of Malaysia
State Attorney General's Chambers
9th Floor, Yayasan Sabah Building
88990 Kota Kinabalu
Sabah, Malaysia
Tel: 60-88-421018
Fax: 60-88-425774

3. Human Rights Commission of Malaysia (SUHAKAM)
29th Floor, Menara Tun Razak
Jalan Raja Laut
50350 Kuala Lumpur
Malaysia
Tel: +60 3 2612 5600
Fax: +60 3 2612 5620
E-mail: humanrights@suhakam.org.my

4. Mr. Mohamed Dzaiddin Abdullah
Chief Justice of Malaysia
Federal Court of Malaysia
Bangunan Sultan Abdul Samad
Jalan Raja 50506
Kuala Lumpur
Malaysia
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,

SWITZERLAND
Fax: (41 22) 917 9006
Email: webadmin.hchr@unog.ch

6. Mr. Param Cumaraswamy

Special Rapporteur of the Commission on the independence of judges and lawyers
Room 3-060
Office of the United Nations High Commissioner for Human Rights,
Palais Wilson,

Rue des Paquis 52, Geneva
SWITZERLAND
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

Sample letter:

Dear

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 Migrant Workers; 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.

Sincerely yours

 

 

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Thank you.

Kim Soo A

Urgent Appeals Programme

Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal Update
Document ID :
UP-43-2003
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.