The Governing Council of the Inter-Parliamentary Union,

Referring to the case of Mr. Anwar Ibrahim, an incumbent member of the Parliament of Malaysia, as outlined in the report of the Committee on the Human Rights of Parliamentarians (CL/187/12(b)-R.1), and to the resolution adopted at its 186th session (April 2010),

Referring also to the trial observer report by Mr. Mark Trowell, QC (document CL/187/12(b)‑R.2),

Noting that,at the session it held during the 123rd Assembly, the Committee met with two members of the Malaysian delegation,

Recalling that Dato Seri Anwar Ibrahim is being prosecuted, for the second time, on a charge of sodomy under Section 377B of the Malaysian Penal Code, which punishes "carnal intercourse against the order of nature" with "imprisonment for a term which may extend to 20 years and shall also be liable to whipping”; the charge was brought on 6 August 2008, while Anwar Ibrahim was campaigning for the August 2008 elections, following a complaint lodged on 28 June 2008 by Mohammed Saiful Bukhari Azlan, a former male aide in Mr. Ibrahim’s office, first alleging that he had been forcibly sodomized by Mr. Ibrahim in a private condominium, but later revised to indicate homosexual conduct by persuasion; Mr. Ibrahim has pleaded not guilty to the charge; if convicted, Mr. Ibrahim would be forced to relinquish his parliamentary seat; if sentenced to even one year of imprisonment or fined even RM 2000 (US$ 600), he would be barred from standing in elections for five years; recalling also that, in the ruling it gave on 2 September 2004 at final instance in the first sodomy case brought against Anwar Ibrahim, the Federal Court of Malaysia acquitted him of the charge, finding the complainant on whose testimony the prosecution was based to be an unreliable witness,

Recalling the many procedural irregularities in the present proceedings to which it referred in its resolution of April 2010, in particular the rejection of all defence applications for the release of prosecution evidence; recalling the following incidents in particular: (a) the complainant had visited the office and home of the then Deputy Prime Minister Najib Tun Razak a few days before he made the allegations; (b) the complainant had a private meeting with Senior Assistant Commissioner Rodwan Yusof at a hotel the day before he lodged the sodomy complaint; (c) the main members of the prosecution team were involved in the earlier sodomy case. Attorney General Abdul Ganil Patail, was then the main prosecutor and has been investigated by Malaysia’s anti-corruption agency over allegations that he had fabricated evidence in that case,

Considering that, according to the Malaysia delegation, contrary to the trial observer report, prosecution evidence, in particular the CCTV recordings at the condominium where sodomy allegedly took place, and forensic evidence were provided to the defence; noting, however, in this regard the following: while the prosecution has disclosed the medical and DNA reports of the doctors who examined the complainant and the chemist’s report who analysed the samples taken from him for DNA analysis, it has not disclosed the materials on which the reports are based or samples of the actual DNA for testing (such as original DNA samples, original swabs, slides made during testing, notes of the chemist who did the testing, notes from doctors) and also did not provide the complainant’s medical history; the defence’s applications for this evidence being provided have been rejected, even though their forensic expert swore an affidavit that he needed this material; likewise, as regards the CCTV recordings, the defence requested disclosure of the original CCTV recordings allegedly taken from the guardhouse and lifts to the block of the condominium where sodomy allegedly took place and other locations within the building fitted with CCTVs, but has only been provided with fragments of the CCTV recording for 26 June 2006 leaving many gaps,

Considering that, on 3 August 2010, Anwar Ibrahim’s defence filed an application that the sodomy charge be struck out on the basis that the integrity and impartiality of the trial had been compromised because of the revelation of an affair between a member of the prosecution team and the complainant; that the Judge accepted this as true since the prosecution neither confirmed nor denied the existence of an affair between the two; that, however, the application was rejected and the trial will proceed; noting that, in his report, Mr. Mark Trowell provides a detailed analysis of this question and arrives at the conclusion that “since the prosecution case has been completely compromised, the public interest would justify discontinuing the proceedings"; considering that the Malaysian delegation expressed the view that this did not take into account the interest of the victim in receiving justice,

1. Thanks the Malaysian delegation for its observations; also thanks Mr. Mark Trowell, QC, for his comprehensive report;

2. Believes that the prosecution case is compromised and raises serious concerns at the nature of this trial, which may well spring from political considerations; points out in this respect that (a) the complaint was brought at a time when Anwar Ibrahim was returning to the political scene; (b) the complainant’s visit to the then Deputy Prime Minister and to the Senior Assistant Commissioner before filing of the complain; (c) the fact that the Attorney General, the main prosecutor during the first sodomy proceedings, has been involved in the present case; (d) the almost systematic rejection of all defence application for disclosure of prosecution evidence which it would need in order to mount the defence, and lastly (e) the relationship of a member of the prosecution team with the complainant;

3. Only can but endorse in these circumstances the conclusion of the Committee’s trial observer, namely that the prosecution is compromised to the point that the case should be discontinued; recognizes that a balance has to be struck between the interest of the complainant and that of the accused; nevertheless considers that in this instance it cannot serve the interest of justice to pursue a process which is heavily compromised and gravely impairs the rights of the defence and the accused;

4. Notes that, despite this, the judge rejected the defence’s application to strike out the charge and that the trial proceedings will therefore continue; requests the Committee to ensure the presence of a trial observer at least at crucial hearings;

5. Firmly recalls that equality of arms between the prosecution and the defence is an essential element of a fair trial and that, failing action to ensure that the defence can exercise its rights, any judgments issued by the court will be fundamentally flawed; stresses in this respect that Malaysia is a member of the United Nations Human Rights Council and as such should uphold the highest standards in promoting and protecting human rights; stresses that the Parliament of Malaysia, in the exercise of its oversight function, could do much to ensure the due administration of justice;

6. Requests the Secretary General to convey this resolution to the parliamentary authorities, to Anwar Ibrahim and his defence team and to any other interested parties;

7. Requests the Committee to continue examining this case and report to it at its next session, to be held on the occasion of the 124th IPU Assembly (April 2011).

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The delegation of Malaysia expressed its reservation regarding the resolution.

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