High Court sets aside Nepali’s conviction in Penang abortion case

Nepali Nirmala Thapa has her conviction and sentence set aside today and was allowed bail while she was ordered to re-enter her plea at the Bukit Mertajam Sessions Court tomorrow morning, January 12, 2015. — Picture by K.E. Ooi
Nepali Nirmala Thapa has her conviction and sentence set aside today and was allowed bail while she was ordered to re-enter her plea at the Bukit Mertajam Sessions Court tomorrow morning, January 12, 2015. — Picture by K.E. Ooi

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GEORGE TOWN, Jan 12 — The High Court today set aside the conviction and sentencing of a Nepali woman who was convicted and jailed for abortion by the lower court last year.

Nirmala Thapa cried in the dock when informed of the decision.

She was however ordered to re-enter her plea at the Bukit Mertajam Sessions Court for the charge tomorrow morning.

In setting aside the one-year jail sentence and conviction including Nirmala's guilty plea, Judicial Commissioner Datuk Nordin Hassan said he was giving Nirmala the benefit of the doubt in her appeal.

“I've looked through facts of the case and the evidence presented where three main issues were presented, namely her understanding of her guilty plea, the lack of a facts of the case for the offence she had pleaded guilty to and the language used when she was charged and convicted,“ Nordin said.

Due to the three main issues, he allowed Nirmala's appeal to set aside the conviction and sentencing while ordering her to be present at the lower court tomorrow to record her plea for the charge.

He also granted her bail of RM5,000 in one surety pending her case at the Sessions Court tomorrow.

Nirmala was convicted and sentenced to one year's jail on November 12 last year by the Sessions Court.

She was convicted under Section 315 of the Penal Code for conducting an act to prevent a child being born alive or to cause it to die after birth.

She is believed to be the first woman in Malaysia to be charged and convicted for abortion.

Abortion is permitted under Section 312 of the same law where there is an exception for a registered medical practitioner to terminate a pregnancy if the medical practitioner is of the opinion that the continuance of the pregnancy would involve risk to the life, physical and mental health of the pregnant woman.

Nirmala, through counsels V. Amareson and V.Parthipan, submitted an appeal against the conviction and sentencing to the High Court and also applied for the court to exercise its judicial powers to review the whole case.

Earlier today, Parthipan submitted that Nirmala was not represented by a lawyer when she was charged and pleaded guilty to the offense.

The court also heard that Nirmala may not understand the full consequences of the charge and her guilty plea due to the appointment of a Hindi interpreter instead of a Nepali interpreter for her.

Even deputy public prosecutor Datuk Razali Che Ani agreed that the notes of the proceedings in the lower court did not ascertain that Nirmala was conversant in Hindi.

He also agreed that the notes did not state whether Nirmala had understood Hindi.

Nirmala, accompanied by her partner, went to a government-approved clinic Poliklinik Ng to have her pregnancy terminated for health, mental and social reasons on October 9 last year.

The medical practitioner had performed the procedure, according to the Health Ministry guidelines, and when Nirmala was resting in the clinic after the operation, there was a raid conducted by the police and health department officials.

The doctor, Nirmala and her partner were detained for questioning while medical reports, documents, computers and medical products were seized from the clinic.

Human rights and women groups had taken up her case, arguing that there was a miscarriage of justice against a migrant worker here.

Nirmala finally walked out from the courtroom, temporarily free, after Dr Choong Sim Poey of Reproductive Rights Advocacy Alliance Malaysia (RRAAM) posted bail for her today.

She has been in prison for four months since her arrest on October 9, 2014.  

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