The Bukit Mertajam Sessions Court yesterday heard the testimony of three witnesses involved in the case of Nirmala Thapa, a Nepalese migrant worker, who was arrested for allegedly obtaining an ‘illegal’ abortion in a private clinic in October last year.

The witnesses were the Health Ministry’s Private Medical Practice Control Unit (Ukaps) assistant director Dr Zuraini Abdullah, assistant health officer Mohd Nasir Mohamad Noor and trained nurse M Parimala, who raided the clinic.

Nirmala, 24, who was then six weeks pregnant, had sought medical treatment in the clinic in Taman Ciku, Bukit Mertajam on Oct 9.

The doctor who treated her was also detained during the raid.

The court heard that following the raid, Ukaps has issued Dr Ng Ek Tiong, whose clinic allegedly conducted abortion services, a show cause letter, and that a probe on the doctor is on-going.

‘Nirmala was looking pale and tired on bed’

During cross-examination by Nirmala’s lawyer E Gnasegaran, Mohd Nasir said Ukaps routine inspectors have no jurisdiction to probe patients who are being treated at a clinic during a raid.

“Probe on private clinics and its staff can only be carried out under Section 39(1) of the Private Healthcare Facilities and Services Act 1998 (Act 586) when premises are used  beyond the purpose given by the licence (to operate),” Mohd Nasir said.

But following the raid, Mohd Nasir had lodged a police report on suspicion that a “crime” had occurred in Ng’s clinic when he came upon Nirmala - who was lying on a bed, looking rather pale and tired.

He had noticed a dilation and curettage (D & C) set, a tray of forceps covered with blood and a suction machine which was commonly used for abortion procedures beside the bed.

However, Mohd Nasir told the court that Nirmala could have sought other treatment in Ng’s clinic and not a D&C procedure.

When questioned, Parimala cited Section 39(1) of the Act restricting general practitioners in private clinics from carrying out abortion procedures, but later admitted that the Act was not specific about the matter.

Raid aimed at clinic staff, not patients

Meanwhile, Dr Zuraini said that the raid and probe was aimed at the clinic, doctors and staff, who had allegedly breach the law, and not on the patients.

After a full day’s trial, Sessions judge M Vijayalakshmi adjourned the session to March 25 and 26.

Gnasegaran had submitted a representation to the Attorney-General’s Chambers to withdraw the charges against Nirmala, while DPP Siti Aishah Ramlan said the former’s  application was still pending in Putrajaya.

Nirmala is currently out of prison on bail and staying at a migrant workers’ shelter.

When she visited Ng’s clinic in October last year, the latter found the factory operator, “legally justified to terminate her pregnancy” as she had suffered mental trauma and risked losing her job due to her pregnancy.

If found pregnant, she would be returned to her home country, and would be asked to duly compensate her employer before her departure.

Nirmala happens to be the first woman to be charged and convicted for an “illegal” abortion since 1989.

According to founder of the Penang bar Council Cecil Rajendra, who has been closely following the case, abortions by medical practitioners for health, mental and social reasons are legal  under Section 312 of the Penal Code.

0n Nov 12, the Bukit Mertajam Sessions Court charged and convicted Nirmala with “conducting an act to prevent a child from being born alive without the intention of saving her own life as a mother,” under section 315 of the Penal Code, and sentenced to a year’s jail.

On Jan 12, she filed an appeal in the Penang High Court and Judicial Commissioner Nordin Hassan overturned Nirmala’s conviction as she was charged and convicted without a Nepali interpreter.

Nordin had determined that Nirmala was unable to understand the full consequences of her initial guilty plea.

However, on the next day (Jan 13), the Bukit Mertajam Sessions Court recharged Nirmala with the same offence, saying it would engage a certified Nepali interpreter to read out the charge to her.

She faces a 10 year jail term, and a fine, or both, upon conviction.

Case sets dangerous precedent

Nirmala’s case has caused outrage among women activists in the country and has caught the attention of regional NGO Asia at the Center for Reproductive Rights.

It’s regional director Melissa Upreti said migrant women deserve the same reproductive health care as every other woman in Malaysia, and Nirmala was “unfairly targeted”.

“If Nirmala’s conviction is upheld, it will set a dangerous precedent for the harassment and unlawful imprisonment of any woman in Malaysia who obtains legal abortion care,” she said in a statement yesterday.

“We urge the Malaysian judicial authorities together with the Ministry of Health to work quickly to reverse the unjust and discriminatory charges against Nirmala and to set her free.”