Court documents 'incomprehensible', appeal put off

updated 3.10pm The appeal hearing of migrant workers activist Irene Fernandez was today adjourned to a later date to give her time to decide on her next move after it was discovered that portions of the notes of evidence relating to her case were “incomprehensible”.

During the previous proceedings, Kuala Lumpur High Court judge Mohamad Apandi Ali had set Oct 28-30 and Nov 24-28 for the hearing proper after the bulk of the ‘missing documents’ that had contributed to the delay were finally found and made presentable.


The appeal mention date had been postponed four times due to several technical glitches since April, when papers pertaining to her appeal went missing.

Fernandez’ lawyer M Puravelan told the court today that while he has received as many as 8,988 pages of handwritten and typed notes amounting to a total of eight volumes of documents - including exhibits - portions of them are “incomprehensible”.

“In other words, the evidence cannot be understood”, he said.

Three Options

Requesting the adjournment, Puravelan said the time would be taken to decide which of three options his client would take. The first option would be to apply for leave to include an additional item to Fernandez’s grounds for appeal in that the “infirmities inherent or discovered in the notes of evidence” result in her not being able to proceed, he said.

The second would be to file a fresh motion based on the premise that the appeal records have not been properly presented before the court “by reason of the infirmities of the record of appeal”, Puravelan added.

He said further that it may also be argued merely on a “preliminary point of procedure” that the appeal records are not properly before the court.

Puravelan said that as the situation is “unprecedented to a large extent in terms of the law”, the options and the ultimate decision taken would have to be considered very carefully.

Finding no objections on the part of deputy public prosecutor Shamsul Sulaiman, justice Apandi allowed the adjournment and vacated tomorrow and Thursday, the days set for the hearing to continue.

Met later, Fernandez said while she prefers the first option, Apandi’s decision whichever way it goes “would be important because it would reflect the system of the courts, how the appeal records are put together, and the previous judgment by the judge”.

“After five years now, at this stage, if the records are incomprehensible, it’s really a reflection of the court system and that you have weaknesses in it,” she told reporters.

Statements Missing

The Tenaganita executive director’s first mention date on June 11 was postponed to Aug 5 after papers with statements of important prosecution witnesses were found to have gone missing.

On Aug 5, the case once again came to a standstill when Fernandez was told a computer virus had wiped out a portion of a specific volume of notes required for the trial.

Fernandez, 62, was sentenced to 12-month imprisonment in 2003 after being found guilty by the Kuala Lumpur Magistrate's Court of maliciously publishing false news. She was allowed bail pending appeal.

In 1995, Fernandez had exposed the poor conditions at immigration detention centres in a memorandum entitled ‘Abuse, Torture and Dehumanised Conditions of Migrant Workers in Detention Centres'.

She was arrested and charged under Section 8A(1) of the Printing Presses and Publications Act 1984 a year later.

The maximum penalty on conviction is three years' imprisonment or a fine not exceeding RM20,000, or both.

Her case has become the longest-running criminal trial in Malaysian history.