Bukit Mertajam Sessions Court judge M Vijayalaksmi has acquitted and discharged Nirmala Thapa, the Nepalese migrant worker who was arrested for allegedly obtaining an ‘illegal’ abortion in a private clinic in October last year.

Vijayalaksmi ruled that the prosecution had failed to prove prima facie in the case.

The clinic where Nirmala terminated her pregnancy was raided by representatives from the Health Ministry’s Private Medical Practice Control Unit after the incident.

Nirmala, 24, was then six weeks pregnant, and 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.

Nirmala was represented by lawyer E Gnasegaran, while representatives from the Penang Women’s Centre for Change (WCC) and Kuala Lumpur-based Tenaganita were present in court to support Nirmala.

Nirmala happens to be the first woman to be charged and convicted over an ‘illegal’ abortion since 1989 and her case attracted international outrage.

In court, Nirmala, who wore a red blouse, appeared to be relieved when the judge issued her decision.

She left the courtroom with her head and face covered fully with a scarf, accompanied by Gnasegaran and several women activists including Tenaganita chief Aegile Fernandez, Joint Action Group for Gender Equality representative Prema Devaraj and Reproductive Rights Advocacy Alliance Malaysia co-chair Dr SP Choong.

Speaking to reporters after the court decision, Gnasegaran said the charge and arrest of Nirmala under Section 315 of the Penal Code was “unprecented”.

“Nirmala is free because the prosecution failed to prove that the doctor who treated Nirmala had not acted in good faith,” he said.

“The doctor himself gave evidence that Nirmala came to him seeking treatment for her medical condition and that he had treated her according to procedures allowed by the law,” he added.

“The DNA data of Chinese, Malay and Indians used by the Chemistry Department in the case is inconsistent as Nirmala is a Nepali,” he added.

“We feel she has exonerated herself as she should not have been charged in the first place,” he stressed.

‘Nirmala should be reinstated’

In welcoming the court’s decision, Fernandez urged the multinational company in Prai which earlier terminated her employment should reinstate Nirmala in her former position.

“If this does not happen, Nirmala should be allowed to seek other employment as she is innocent, and we are here to assist her,” she said.

Prema said that the entire saga of arrest and prosecution has taken almost a year of Nirmala’s life.

“She has been subjected to the trauma of incarceration, treated as a criminal and has been denied employment and income which was desperately needed by her family in Nepal,” said Prema, who is WCC’s programme consultant.

“It has been so unnecessary, and has been a huge waste of the court’s and taxpayers’ time and money,” she added.

Prema expressed hope there will be no appeal by the prosecution, urging that an apology be issued to Nirmala by the agencies which prosecuted her.

Prema also urged that compensation be given to Nirmala for the trauma and loss of earnings she has suffered, this would be a positive step forward.

Nirmala’s troubles begin when she visited the clinic in October last year, although the doctor had found her “legally justified to terminate her pregnancy”.

She had suffered mental trauma and risked losing her job due to her pregnancy.

She was charged and convicted by the Bukit Mertajam Sessions Court on Nov 12 last year 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.

Nirmala appealed the decision, while 10 witnesses were questioned in the entire case.