UPDATE: Following her conviction in November 2014, Nirmala’s case was appealed to the Penang High Court earlier this month. The judge determined that because she was not provided adequate interpretation at her trial, the conviction was invalid. She was ordered to reenter her plea and released on bail.
Now unemployed, Nirmala is being cared for in a shelter for migrant workers while her situation is monitored by the Nepali Embassy. Her new trial is scheduled to begin February 26, although it could be months before her case is decided.
Nirmala’s case has drawn attention from a number of human rights groups because of its broad implications for women and legal abortion providers across Malaysia. If her conviction is upheld, it will likely open the door to more women being unjustly arrested and prosecuted for abortion.
Following the raid of a health clinic in Penang, Malaysia, a young woman has been wrongfully arrested and sentenced to 12 months in prison for obtaining a legal abortion.
Twenty-four-year-old Nirmala and her husband came to Malaysia from their home country of Nepal as legal migrant workers. Nirmala is an operator at the Sony factory. Her husband works as a security guard.
Last month, shortly after discovering she was pregnant and fearing that she would lose her job as a result, Nirmala sought an abortion at a local clinic. While she was resting in recovery following the procedure, officials from the Malaysian ministry of health entered the clinic, arresting both Nirmala and the doctor.
Since 1989, abortion in Malaysia has been legal in circumstances when a qualified doctor considers the pregnancy to pose a risk to the mental or physical health of the woman.
The doctor reports that he considered the risks of Nirmala losing her job, having to pay compensation to her employer, and being sent back home if found pregnant—and decided she was legally justified to have a termination. Nirmala was only six weeks into the pregnancy at the time of the procedure.
Following her arrest on October 9, Nirmala was swiftly charged and convicted in the absence of legal representation, and has since been imprisoned. After repeated attempts to determine her whereabouts, human rights advocates located Nirmala in prison, reporting that she is in deep distress over her situation.
According to an abortion rights activist from the Reproductive Rights Advocacy Alliance Malaysia who is working with the Center for Reproductive Rights to find answers, Nirmala was convicted under a law that states: “It is a criminal offense to prevent a child being born alive.”
A Malaysian expert on comparative abortion laws says that this law only applies later in pregnancy. Nirmala’s case clearly does not fit this category. Her arrest and conviction indicate a sudden reinterpretation of Malaysia’s penal code. Authorities have not enforced the law this way in 25 years.
When attempting to determine the reason for Nirmala’s conviction and why there was no counsel at her court hearing, the abortion rights activist was stonewalled by a health ministry official claiming to know nothing about the raid or Nirmala’s case.
As a migrant worker, Nirmala does not have access to many legal protections or rights. Migrant workers are frequently at risk of abuse in Malaysia.
“The arrest and conviction of Nirmala reeks of discrimination and impunity. We are deeply concerned about Nirmala’s safety and health,” says Melissa Upreti, the Center’s regional director for Asia. “When abortion is criminalized, it is women who suffer the most.”
The government of Malaysia has a binding obligation under international law to ensure that no woman is discriminated against, denied due process, and subjected to cruel, inhuman, and degrading treatment for having an abortion.