WHY THE WORLD SHOULD CARE ABOUT ANWAR IBRAHIM BELIEVES THAT THE PROSECUTION CASE IS COMPROMISED AND RAISES SERIOUS CONCERNS AT THE NATURE OF THIS TRIAL, WHICH MAY WELL SPRING FROM POLITICAL CONSIDERATIONS;

CASE N° MAL/15 – ANWAR IBRAHIM

Resolution adopted by consensus by the IPU Governing Council at its 187th session*
(Geneva, 6 October 2010)

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; requeststhe 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
related article

Irwin Cotler and Maikel Nabil Sanad have never met. They are two very different men in two very different situations. Cotler is an international legal scholar, distinguished member of Canada’s parliament, and once served as Minister of Justice. Sanad is a young Egyptian blogger who at this very moment is waging a four-month-long hunger strike in the depths of the Elmarg prison in Cairo. His life hangs in the balance.

Sanad was sentenced to three years in prison for the “crime” of insulting the Egyptian military. Though his case made headlines for a short time, it quickly disappeared amidst chaos, protests, and revolution. A military court recently reduced Sanad’s sentence to two years in prison. The Egyptian regime is trying to break the prisoner and force him to apologize publicly. It also hopes the world forgets about Sanad and his fellow political prisoners.

Irwin Cotler is almost single-handedly preventing that from happening. It was fitting that Cotler first approached me to contact Sanad after we attended a speech by Natan Sharansky in New York City several weeks ago. Decades earlier, Cotler represented the former Soviet dissident who spent nine years in prison and helped launch a global advocacy campaign to gain his freedom.

Sharansky has long believed that Western pressure is what saved his life and ultimately helped bring down the evil empire. He wrote, “In 1986, the Soviet dissident Anatoly Marchenko died in the infamous Chistopol prison after a long and futile hunger strike for improved conditions. Three years earlier, I had gone on a similar hunger strike in the same prison and been subjected to the same tortuous conditions by KGB thugs. But the authorities eventually gave in to my demands. Why? Because my nine years of imprisonment were accompanied by a relentless worldwide campaign and steady, unambiguous pressure on the communist regime by leaders of the free world. The regime knew that it would pay a heavy price if I were to die. With Marchenko, it was confident that the world did not care enough to do much more than mount a formal protest.”

This narrative was confirmed to Cotler by none other than the man who ultimately released Sharansky, Mikael Gorbachev. The former Soviet leader told Cotler in 1997: “I never knew anything about Sharansky. I never even knew the name. I came to Canada when the minister of agriculture and I appeared before a Canadian parliamentary committee on agriculture, but instead of getting questions about agriculture, I got questions about Sharansky. I left the parliament building and saw placards of Sharansky. Wherever I went, I was confronted by Sharansky. So I came back to the Soviet Union and I said, ‘Who is this guy Sharansky?’ I got the files and said, ‘Well, he might have been a troublemaker, but he isn’t a criminal. So we ordered his release.’”

2012-01-05-rMAIKELNABILSANADlarge570.jpgOn November 9th, Cotler told me simply, in response to a query about representing Nabil – and with characteristic humility – “I would be honored to serve as international legal counsel to Maikel Nabil Sanad.” I breathed a sigh of relief, for if anyone has the power to free Sanad, it is Cotler. The indefatigable legal scholar and human rights activist literally does not stop until all options have been exhausted. Cotler’s lined note-pad on which he passionately scribbles thoughts before meetings and speeches should strike terror into the heart of any tyrant.

On their first conference call, the imprisoned blogger’s brother, Mark, expressed profound thanks to Cotler as he outlined the campaigns and legal mechanisms that could be used to pressure the Egyptian government. Cotler engineered an 11-point plan to return Sanad’s name to the international spotlight.

In the past month, he has galvanized parliamentarians from Lithuania to Australia to take up Sanad’s case. Senator Mark Kirk of Illinois and British parliamentarian Denis MacShane, to name just two examples, are Cotler’s erst-while allies in this campaign to free Sanad. Cotler spoke repeatedly of the blogger in parliament and received strong assurances of support from Canadian Foreign Minister John Baird and from the Canadian Minister of State of Foreign Affairs, Diane Ablonczy that Sanad’s release was of the highest priority to the Canadian government. The Canadian Foreign Minister met with the Egyptian Ambassador, and called for Nabil’s release. Cotler moved a motion unanimously adopted by the Subcommittee on International Human Rights calling for the immediate release of the blogger. He called for Nabil’s release at the Annual Inter-Parliamentary Hearing at the United Nations. He met as well with the Egyptian ambassador and is submitting a petition to the UN Working Group on Arbitrary Detention. The Parliamentary Forum of the Community of Democracies has also made his case a priority. Equally, the Canadian Member of Parliament has met with NGOs in Canada, U.S., Europe, and the Middle East to take up Nabil’s case, and has already published three op-eds on the imperative of saving Nabil, including in the Huffington Post.

When Egyptian ambassador to Canada, Wael Ahmed Kamal Aboul Magd, met with Cotler he wondered aloud why Sanad needed a lawyer outside of Egypt. “For a political prisoner to have international l legal counsel — to internationalize the advocacy — is not unusual,” Cotler responded. “I also served as international legal counsel to Egyptian democracy advocate Professor Saad Eddin Ibrahim during his imprisonment and filed a brief before the Egyptian Cour de cassation, while making representations internationally. Sanad understandably is not prepared to recognize the validity of the military tribunal, nor would I. There is no presumption of innocence given the 93% conviction rate with the 12,000 people having come before the tribunal. There is no allowance for the consideration of the evidence. There is no right of appeal. There is no right to a fair hearing before an independent and impartial tribunal as guaranteed by the international treaties to which Egypt is a signatory.”

Cotler continued: “At the end of the day, Sanad should be released as a matter of justice and humanity. But you should be releasing him in Egypt’s self-interest. Everyday he’s in prison it is costing Egypt. It would be a tragedy if he died, and on your watch.”

Nelson Mandela, Natan Sharansky, Saad Eddin Ibrahim and the many other dissidents Cotler has represented are living exemplars of the power of freedom to overcome tyranny. Sanad’s freedom is a litmus test for Egypt’s future. So far it is failing miserably.

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