A 24-year-old Nepali migrant worker has been sentenced for undergoing an abortion in Malaysia, raising questions of the legitimacy of the crime while human right activists are seeking a revision of the case on court.
Bukit Mertajam Sessions Court sentenced Nirmala Thapa (pic), a Nepali woman who worked in a factory in Penang, to a one-year imprisonment on 12 November one month after she was arrested at a clinic in Bukit Mertajam during a routine inspection by the Health Ministry’s Private Medical Practice Control Unit (Ukaps) for terminating her six-week pregnancy.
Nirmala was charged under Section 315 of the Penal Code for allegedly undergoing an abortion. Under the section, it is an offence to ‘prevent a child from being born alive’ or to cause it to die after birth. The offence is punishable by imprisonment for up to 10 years, fine or both.
Nirmala was the first woman in Malaysia to be sent to jail for having an abortion. The rareness of the conviction is probably a result of Section 312 of the Penal Code, under which abortion is permitted if a registered medical practitioner is of the view that the continuance of the pregnancy will risk the woman’s life or cause injury to her mental or physical health. Section 92 further protects the medical practitioners by specifying that it is not criminal act if the bona fide intention of the service provider was to benefit the woman.
According to the Malaysian Health Ministry abortion is ‘the removal of an embryo or foetus from the uterus at a stage of pregnancy when it is incapable of independent survival’ which means only the removal of foetus that has reached 500 grams or 22 weeks gestation can be defined as an abortion. In the mean time, Nirmala was only six-week pregnant when she terminated the pregnancy.
Nirmala was first sent to Jawi prison and then moved to the Pokok Sena prison after the verdict, during which she had been in distress, according to Dr Choong Sim Poey of Reproductive Rights Advocacy Alliance Malaysia, “We learned that the girl did not even have a translator or a lawyer with her when she was taken to court.”
Nirmala’s case has drawn the attention of the women’s rights and health advocacy group’s co-chair, and hence raised the questions about women’s right and how migrant workers are treated in Malaysia.
According to the Malaysiakini, Lawyer for Liberty legal coordinator Michelle Yesudas gave a statement this week urging the Chambers to explain its policy on prosecuting women who undergo abortion to avoid claims of inconsistent and selective prosecution against vulnerable migrant women.
However, Attorney-General of the Chambers Tan Sri Abdul Gani Patail defended the case by telling The Star newspaper: “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.”
Claire Li Yingxue and Elaine Wang Yiwei
A crazy system