The lawyer for Nepali migrant worker Nirmala Thapa expressed "disappointment and dismay" that the Attorney-General defended her conviction and sentencing.

Nirmala was earlier reported to have been sentenced to a year's jail for upcoming abortion without fully knowing the facts of the case.

However, lawyer Cecil Rajendra (below) said that careful scruity of her charge sheet revealed she was sentenced for performing the abortion on herself at a clinic in Bukit Mertajam on Oct 9.

"We are at a loss to understand how Nirmala was convicted and sentenced for something she never did,” Cecil said, when met this week.

 

"The termination of her pregnancy was conducted lawfully and in good faith by a qualified medical practitioner."

The medical practitioner was released without charge after investigators interrogated him and checked the medical records seized from his clinic.

Abortions by medical practitioners for health, mental and social reasons are legal under Section 312 of the Penal Code.

"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."

 

AG Abdul Gani Patail told English daily The Star that his chambers had to act on a case as an investigation paper has been opened on the matter.

 

"If we have sufficient evidence to prove an offence has been committed and we are sure of a possible conviction in court, we will prefer charges,” he was quoted as saying on Dec 8.

But someone else admitted to it

Cecil said this does not take into account that Nirmala was sentenced to performing the abortion herself, despite the doctor making a police statement that he had performed the procedure.

As such, he asked the AG (below) how a woman can be charged and convicted for an act that someone else has admitted to have done.

"Or, is the attorney-general saying that a woman can be sentenced for breaking the law by undergoing a perfectly legal termination?” he asked.

The doctor and Nirmala’s partner were taken in for questioning, but only Nirmala was charged, he said.

Nirmala was taken in during a raid on the clinic by police and the Health Department on Oct 9, while she was recuperating after the abortion and medical records were seized.

"This raises serious questions about selective prosecution, gender discrimination and victimisation of foreign workers," said the former president of Hakam, a human rights NGO.

Cecil said Nirmala’s lawyers wrote to the prison’s officer in charge on Nov 7 to ask about the nature of offence and her hearing date.

However, she was charged and sentenced to one year’s jail on Nov 12 without her lawyers informed and likely without a Nepalese court interpreter, he said.

It also took the lawyers 10 days to find out that she had been sentenced and her whereabouts.

 

“This in itself is a flagrant breach of the rules of natural justice,” said the founder of the Penang Bar Council.

The lawyers are now trying to have Nirmala’s conviction and sentence quashed.

Borrowing a government catchphrase, he said such cases "tarnish the good name of our country abroad" and earns Malaysia a spot in the International Labour Organisations’ blacklist.

 

"The AG could save his chambers from 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," he added.