BUKIT MERTAJAM: Nepali Nirmala Thapa smiled and heaved a sigh of relief after she was acquitted by the Sessions Court here in her retrial on an abortion charge.
Judge M. Vijayalakshmi acquitted her yesterday without calling for her defence after the prosecution failed to prove a prima facie case against her.
It has been a roller coaster ride for Nirmala, 25, since Oct 13 last year when she was first charged with the offence under Section 315 of the Penal Code for an act done with the intent to prevent a child from being born alive or to cause it to die after birth.
She subsequently pleaded guilty on Nov 12 to committing the offence at a government-approved clinic here on Oct 9 and was jailed a year by the Sessions Court.
Nirmala, a factory worker, was believed to be the first woman to be imprisoned in the country for the offence which carries a maximum 10-year jail term or a fine or both.
Following representations from her lawyers, a High Court in George Town set aside the conviction and sentence on Jan 12 this year and reverted the case here for retrial.
Nirmala’s lawyers had, among others, submitted then that her guilty plea was taken in a language which she was not conversant and familiar with and that there was no record to show that the court had explained the nature and consequences of the offence.
Cecil Rajendra, who held a watching brief for the National Human Rights Society, said then that Nirmala had already served three months in prison since her arrest on Oct 9.
He had earlier also said that Nirmala was convicted and sentenced in the absence of her lawyers.
Nirmala, who covered her face with a scarf to avoid being photographed, was accompanied by representatives of several non-governmental organisations when she turned up for the court decision yesterday.
Among them was Joint Action Group for Gender Equality (JAG) programme consultant Dr Prema Devaraj who said JAG welcomed the court’s decision.
“We are relieved that Nirmala can now go on with her life. But we remain concerned over the access to reproductive health and rights for women in the country.
“In moving forward, we hope the Health Ministry will be able to work together with the Attorney-General’s Chambers to discuss Section 315 and ensure women in future are not criminalised for accessing a reproductive service which actually has guidelines and legislations to ensure its legality,” she said.
Reproductive Rights Advocacy Alliance Malaysia co-chair Dr Choong Sim Poey said his group was concerned about the application of the law.
“We are very concerned because we believe that a lot of people still do not realise that Section 315 specifically says that if a doctor feels an unwanted pregnancy is a threat to the mother’s mental or physical health, then a qualified doctor can legally provide the abortion.
“I think it’s worth recognising that the estimated number of abortions in this country is about 90,000 a year. If they want prosecute every person who has an abortion, that will be the number they have to prosecute,” Dr Choong said.
Tenaganita anti-trafficking-in-persons unit consultant Aegile Fernandez said the court’s decision signalled the need to revamp bad policies in the country.
“I think it is time for the AG’s Chambers and state officials to come together to review and revisit the bad policies we have in this country,” she said, while hoping that the factory which hired Nirmala will take her back to work since she had done no wrong,
Nirmala’s laywer E. Gnasegaran told reporters that the doctor who performed the abortion had testified that he had done the procedure in good faith to save Nirmala’s life.
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