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Resolution adopted unanimously by the IPU Governing Council at its 194th session
(Geneva, 20 March 2014)

The Governing Council of the Inter-Parliamentary Union,

Referring to the case of Dato Seri Anwar Ibrahim, an incumbent member of the Parliament of Malaysia, and to the resolution it adopted at its 191st (October 2012),

Recalling the following: Mr. Anwar Ibrahim, Finance Minister from 1991 to 1998 and Deputy Prime Minister from December 1993 to September 1998, was dismissed from both posts in September 1998 and was arrested on charges of abuse of power and sodomy; he was found guilty on both counts and sentenced, in 1999 and 2000 respectively, to a total of 15 years’ imprisonment; on 2 September 2004, the Federal Court quashed the conviction in the sodomy case and ordered Mr. Ibrahim’s release, as he had already served his sentence in the abuse of power case; recalling also that the IPU had arrived at the conclusion that the motives for Anwar Ibrahim’s prosecution were not of a legal nature and that the case was built on a presumption of guilt,

Considering that Mr. Anwar Ibrahim was re-elected in August 2008 and May 2013 and has since been the de facto leader of the opposition Pakatan Rakyat (The People’s Alliance),

Considering the following: On 28 June 2008 Mohammed Saiful Bukhari Azlan, a former male aide in Mr. Anwar Ibrahim’s office, filed a complaint alleging that he had been forcibly sodomized by Mr. Anwar Ibrahim in a private condominium. When it was pointed out that Mr. Anwar Ibrahim, at the time of the alleged rape 61 years old and suffering from a bad back, was no physical match for a healthy 24-year-old, the complaint was revised to indicate homosexual conduct by persuasion; Mr. Anwar Ibrahim was arrested on 16 July 2008 and released the next day and was formally charged on 6 August 2008 under Section 377B of the Malaysia Criminal 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; Anwar Ibrahim has pleaded not guilty to the charge,

Recalling the following procedural irregularities and other incidents that occurred before and during investigation and the proceedings before the first-instance court:

  • Mr. Saiful gave testimony in court that he was not examined until about 52 hours after the alleged incident, and the first doctor from Hospital Pusrawi (Pusat Rawatan Islam) reported he found no evidence of anal penetration; about two hours later, Mr. Saiful then visited Hospital Kuala Lumpur, a government hospital, and a report endorsed by three specialists from that hospital reached the same conclusion;

  • The initial First Information Report to the police by the complainant was not released to Mr. Anwar Ibrahim’s counsel for months, raising concerns about evidence-tampering, especially as regards DNA samples; moreover, it has been confirmed that Mr. Saiful visited the office and home of the then Deputy Prime Minister Najib Tun Razak a few days before he made the allegations, which Mr. Najib initially denied took place; Mr. Saiful reportedly also had a private meeting with senior police officer Mr. Rodwan Yusof at a hotel the day before the alleged sodomy report was made by Mr. Saiful;

  • The main members of the prosecution team were involved in the earlier sodomy case; attorney General Abdul Ganil Patail, was then the main prosecutor; he has been investigated by Malaysia’s anti-corruption agency over allegations that he had fabricated evidence in that case;

  • Mr. Anwar Ibrahim’s lawyers were denied pretrial access to DNA specimen samples and likewise denied access to, inter alia, statements by the plaintiff and key prosecution witnesses, notes from doctors who examined Mr. Saiful and original copies of CCTV surveillance system tapes from the condominium at the time of the alleged incident,
Recalling that, on 9 January 2012, the first-instance judge acquitted Mr. Anwar Ibrahim, stating that there was no corroborating evidence to support Mr. Saiful’s testimony, given that “it cannot be 100 per cent certain that the DNA presented as evidence was not contaminated”; this left the court with nothing but the alleged victim’s uncorroborated testimony and, as this was a sexual crime, it was reluctant to convict on that basis alone,

Recalling also that the Attorney General lodged an appeal and that the appeal proceedings started on 7 September 2012, and that an IPU observer, Mr. Mark Trowell QC, attended most of the hearings in the case in the course of 2013 and 2014,

Considering that the defence counsel challenged from the outset the integrity of the lead prosecutor, Datuk Seri Mohd Shafee Abdullah, in leading the appeal; the defence made three applications to disqualify him, all of which were dismissed, most recently on 5 March 2014,

Considering that on 28 February 2014, the case came up for case management, with the judge deciding that hearings on the substance would take place on 6 and 7 March 2014; Mr. Karpal Singh requested that they not be listed on those dates because of prior trial commitments; considering that Mr. Karpal Singh had been asked to block-out dates from 7 to 10 April in expectation that the hearing would be listed within that time frame,

Considering the following observations, which the IPU trial observer makes in his report dated 15 March 2014 regarding the hearings on 6 and 7 March 2014:

  • The Court of Appeal convened on 6 March to hear the substantive appeal; the bench comprised Justices Balia Yusof Wahi, Aziah Ali and Mohd Zawawi Mohd Salleh; the case against Mr. Anwar Ibrahim effectively revolved around the DNA analysis; the government scientists claimed to have matched Anwar’s DNA to samples taken from the body of the complainant Mr. Saiful at Kuala Lumpur Hospital (HKL) by medical examiners; in fact, the scientists claimed that the match was made from DNA extracted from sperm cells found in samples taken from Mr. Saiful’s upper rectum, which they claimed was consistent with anal penetration; the defence challenged not only the integrity of the forensic samples, but also the government analysis as well; the defence experts concluded that the final DNA analysis demonstrated that there was evidence of contamination; their considered opinion was that: (i) there was evidence of an unidentified third person in the high rectal swabs that had not been explained, which meant that Mr. Saiful had either been penetrated to ejaculation by another male, or someone had contaminated the sample by handling it; (ii) the DNA analysis was inconsistent with the known history of the samples, meaning there was little, if any, evidence of degradation in circumstances where contrary to specific instructions the samples had not been properly preserved by DSP Pereria; (iii) the DNA allegedly taken from sperm cells had survived for more than 96 hours from the time of ejaculation to analysis, which was highly improbable according to scientific experience; and (iv) the Differential Extraction Process (DEP), used to separate sperm cells from non-sperm cells, was incomplete, admitting the possibility that the DNA claimed to match Anwar’s DNA did not come from semen, but rather from non-sperm cells;

  • The prosecution submitted in support of its appeal that there was no evidence of tampering; the samples, it was argued, were always in police custody, and DSP Mr. Pereria simply opened the main package without interfering with the seals to the receptacles that held the forensic samples; Mr. Shafee further submitted that the trial judge had erred in relying upon the foreign experts to challenge the DNA analysis, and should have been satisfied with the results provided by the government scientists; Mr. Karpal Singh responded, challenging Mr. Shafee’s reliance on the integrity of the forensic samples, saying that DSP Pereria was a man whom he had previously found to be an untruthful witness; he had completely disregarded specific instructions from the medical examiners to preserve the forensic samples - and by doing so contravened police standing orders;

  • Submissions were concluded at around 4 p.m. on the second day of the hearing; the judges returned with a decision at 4.57 p.m.; that hour or so was to some extent surreal; the court was hushed as Justice Balia began his remarks; he mumbled his early remarks, as he said that there were a number of issues, which would be discussed in detail in written reasons delivered at a later date, saying in the meantime he would give short reasons; he said that the trial judge had erred in fact and law in acquitting Mr. Anwar Ibrahim and that, on the evidence, his decision was not sustainable; he said that the judge had failed to properly adjudicate and give sufficient weight to the evidence; in particular, he said the trial judge had misconstrued the evidence of the forensic samples by concluding there was tampering and thereby impeaching their integrity;

  • Justice Balia then turned to the issue of contamination of the samples, but did not deal in his remarks with any of the four aforesaid critical issues raised by defence counsel; he said that there was “no reason for the learned trial judge to depart from his earlier findings concerning the findings and experience of the prosecution experts”; he was referring to the judge’s reasons at the end of the prosecution case; he went on to say “… the judge erred in giving weight to the defence experts who were no more than armchair experts”;

  • This was a hurried and superficial analysis, and one can only expect that the court will give specific attention to these critical issues in the written reasons to be provided by it at a later date; the defence experts were critical because if what they said was accepted - even to a limited extent - it was material sufficient to raise a reasonable doubt in the prosecution case; it was not enough for the judges simply to brush aside the defence experts, each of whom had significant credentials and experience, in such a disparaging manner;

  • Justice Balia concluded his remarks by saying that the prosecution appeal was upheld and that Mr. Anwar Ibrahim was accordingly guilty of sodomy as charged; Mr. Karpal Singh said that he needed time to prepare mitigation for his client and asked that the proceedings be adjourned for sentence to the following Friday; he told Justice Balia that the King was to open Parliament on Monday, and on Tuesday Anwar was required to respond as opposition leader; Mr. Shafee opposed the application, saying it should be done immediately; Justice Balia responded, saying that he would give Karpal one hour to prepare mitigation, to which Karpal replied that one hour was simply “unreasonable”; at 6.50 p.m. the judges returned; there followed a heated and animated exchange between Justice Balia, Mr. Karpal Singh and Mr. Shafee; Mr. Karpal Singh wanted an adjournment so that he might obtain a medical report concerning Anwar’s heart and blood pressure; it was a reasonable request, given the serious nature of the offence and the delay being asked for was only one week, but the response was bizarre; Justice Balia agreed with Mr. Shafee that Mr. Karpal Singh’s summary of his client’s medical condition would be sufficient, but Mr. Karpal Singh responded saying how could he do that without a medical report,
Considering that, at 6.46 p.m. on 7 March 2014 Justice Balia sentenced Anwar Ibrabim to a five-year prison term and at 6.55 p.m. ordered that the sentence be stayed pending appeal and set bail at RM 10,000 for Mr. Anwar Ibrahim’s release,

Considering that Mr. Anwar Ibrahim was bound to stand as a candidate in the by-election on 23 March 2014 in Kajang in the State of Selangor following the resignation of a member of the State Assembly on 27 January 2014 and that nominations were scheduled to close at 10 a.m. on Tuesday, 11 March 2014, as Malaysians can be members of parliament for both state and federal parliamentary seats; the importance of the seat of Kajang for Mr. Anwar Ibrahim was that it represented the springboard to becoming the Chief Minister of Selangor, the richest State in Malaysia; becoming Chief Minister meant that he would be the administrator of a State with significant infrastructure, resources and capital that would provide the opposition with a base for taking power nationally at the next election,

Considering that, if the Federal Court upholds the conviction, Mr. Anwar Ibrahim will be disqualified from holding parliamentary office and would not be eligible to stand for a parliamentary seat until after six years from the completion of his sentence, namely July 2027,

Considering also that, on 11 March 2014, the High Court sentenced DAP Chairman Karpal Singh, following his earlier conviction for sedition, to the payment of a fine of the amount of RM 4,000 which, subject to appeal, makes him ineligible to remain a member of parliament,

Bearing in mind that the law punishing homosexual acts dates back to British colonial rule in India and was adopted by the former British colonies; that Singapore decriminalized homosexuality in 2009 and that the Delhi High Court, by setting aside a conviction in 2009 when the acts were between consenting adults, thus also effectively decriminalized homosexuality,

Considering that, during the hearing which the Committee held on 18 March 2014 with the Malaysian delegation to the 130th IPU Assembly, the leader of the delegation underscored that the matter was now before the Federal Court, that Malaysia’s courts were fully independent, that the timing of the final court hearings had nothing to do with Mr. Anwar Ibrahim’s candidacy in the state elections in Selangor, that this case had been pending since 2012 and that the latest postponements had resulted from the challenges brought by the defence counsel in a bid to disqualify lead prosecutor Mr. Shafee; when asked if prosecution charges on sodomy were common in Malaysia, the leader of the delegation responded that she was only aware of Mr. Anwar Ibrahim’s case,

Noting that Anwar Ibrahim’s renewed sodomy trial has been widely criticized as a bid to wreck Anwar Ibrahim’s political career,

  1. Thanks the Malaysian delegation for their cooperation and the information provided;

  2. Is deeply concerned at Mr. Anwar Ibrahim’s conviction, in particular the rushed manner in which the final hearings were conducted and organized, the apparent ease with which the main arguments presented by the defence, in particular its concerns about the integrity of the DNA, were dismissed, and on the basis of the same law which, although never or rarely invoked in Malaysia, has been used twice against him;

  3. Is also deeply concerned that the current conviction has not only thwarted Anwar Ibrahim’s prospects for exercising his right to stand for state elections, but would also eliminate him, if the sentence is upheld, from the life of parliament for more than a decade, thus depriving the opposition of its main leader; considers that this state of affairs, with enormous consequences for the political opposition in Malaysia, can only lend weight to the allegation that Mr. Anwar Ibrahim’s prosecution and trial was motivated by other than legal concerns, as it believed was the case in the first sodomy case and the first-instance proceedings on the latest sodomy charge;

  4. Trusts that the Federal Court will give due consideration to all the arguments presented in this case and in a manner that will ensure that justice is fully done and seen to be done; is eager to receive in the meantime, as soon as it is available, a copy of the fully reasoned ruling by the Court of Appeal; believes that, in light of the issues at play, it is critical for the IPU to follow closely the proceedings before the Federal Court; requests the Secretary General to make the necessary arrangements to ensure the presence of a trial observer at the coming hearings;

  5. Requests the Secretary General to convey the trial observation report and this resolution to the competent authorities, the source and any third party likely to be in a position to supply relevant information;

  6. Requests the Committee to continue examining this case and to report back to it in due course.

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