A/HRC/WGAD/2015/22

GE.15-18853(E)

*1518853*

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-third session,

31 August-4 September 2015

Opinion No. 22/2015 concerning Anwar Ibrahim (Malaysia)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. The Human Rights Council assumed the mandate in its

decision 2006/102 and extended it for a three-year period in its resolution 15/18 of 30

September 2010. The mandate was extended for a further three years in Council resolution

24/7 of 26 September 2013.

2.

In accordance with its methods of work (A/HRC/30/69), on 25 June 2015 the

Working Group transmitted a communication to the Government of Malaysia concerning

Anwar Ibrahim. The Government has not replied to the communication. The State is not a

party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

United Nations

A/HRC/WGAD/2015/22

General Assembly

Distr.: General

2 November 2015

Original: English

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(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation;

disability; or other status, that aims towards or can result in ignoring the equality of human

rights (category V).

Submissions

Communication from the source

4.

Mr. Ibrahim is a 68year-old national of Malaysia. He is the founder and leading

figure of the Parti Keadilan Rakyat, or People’s Justice Party. Mr. Ibrahim served as the

Deputy Prime Minister of Malaysia from 1993 to 1998 and the Finance Minister from 1991

to 1998. After allegations of corruption and sodomy were made against Mr. Ibrahim, he

was dismissed from office by the then Prime Minister.

5.

In April 1999, Mr. Ibrahim was convicted of corruption and sentenced to six years

of imprisonment. In July 2000, he was convicted of sodomy and sentenced to an additional

nine years of imprisonment. The source notes that, during Mr. Ibrahim’s time in prison, he

was referred to by Amnesty International as a prisoner of conscience and that the fairness of

his trial was questioned by Human Rights Watch. In September 2004, Mr. Ibrahim

successfully appealed his sodomy conviction to the Federal Court of Malaysia and was

released after six years of imprisonment.

6.

After his release, Mr. Ibrahim continued to engage actively with the political

opposition in Malaysia and to be an outspoken critic of the ruling party. He helped to bring

together the Pakatan Rakyat coalition, which contested the 2008 general elections.

7.

On 15 July 2008, Mr. Ibrahim was arrested under section 377 A and B of the

Malaysian Penal Code for “unnatural offences”, punishable by 20 years of imprisonment

and whipping. An intern working in Mr. Ibrahim’s political team filed a police report

accusing him of sodomy. According to the source, the intern was examined at a hospital,

but the doctors did not find any injuries consistent with the allegations made against Mr.

Ibrahim. Swabs taken at the hospital were kept by the police in a filing cabinet for 42 hours

before being sent for analysis. Mr. Ibrahim was charged with sodomy on 7 August 2008

and released on bail.

8.

The trial commenced in the High Court on 3 February 2010. The source attests that

the defence petitioned to have the charges dropped for lack of medical evidence and sought

to compel the prosecution to disclose documents and witness lists. The source claims that

these due process appeals were ignored throughout the trial, including when taken on

appeal to higher courts.

9.

On 9 January 2012, Mr. Ibrahim was acquitted of sodomy. The trial judge

questioned the reliability of the prosecution evidence, finding that he could not be assured

that Mr. Ibrahim was guilty of sodomy. However, the acquittal was immediately appealed.

On 4 March 2014, the Court of Appeal reversed the acquittal and sentenced Mr. Ibrahim to

five years of imprisonment. The Federal Court confirmed the sentence on 10 February

2015, finding the prosecution witness to be credible and that the prosecution evidence

corroborated the allegations. Mr. Ibrahim was taken into custody the same day at the

Federal Court. The source notes that, on 17 February 2015, Amnesty International again

designated Mr. Ibrahim a prisoner of conscience.

10.

The source attests that, despite assurances from the Minister of Home Affairs that

Mr. Ibrahim would be treated humanely, he was initially held in solitary confinement in

Sungai Buloh Prison in Selangor in a bare cell, with a thin foam mattress on a low bed, a

bucket for bathing and a squat toilet. The cell had insects and rodents. The cell was

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extremely hot and humid with no form of ventilation, forcing Mr. Ibrahim to sleep on the

floor where the temperature was lower. The source claims that Mr. Ibrahim continues to

suffer from a chronic back and spinal injury caused by a previous beating by the police, and

that sleeping on the floor resulted in Mr. Ibrahim suffering extreme and unnecessary pain.

11.

On 2 March 2015, as a result of public pressure, the prison authorities moved Mr.

Ibrahim to the medical wing of the prison. However, the source attests that Mr. Ibrahim’s

health has not improved and that he has lost weight. He suffers from high blood pressure, a

shoulder tear and a condition indicative of intestinal bleeding. From 2 to 5 June 2015, Mr.

Ibrahim was hospitalized, four weeks after the prison doctor had requested approval from

the Minister of Home Affairs for the transfer. He was diagnosed with a polyp growth on his

kidney, but the doctors found no acute disease. Mr. Ibrahim’s family requested that a doctor

of his choice examine him while he was in the hospital but received no response.

12.

According to the source, Mr. Ibrahim continues to be held in solitary confinement,

and the prison guards around his cell have been instructed not to talk to him. The source

alleges that Mr. Ibrahim has faced constant psychological torture while in prison, including

harassment every few hours by prison guards who come by his cell to take pictures of him.

It is unknown where or to whom these pictures are sent. Mr. Ibrahim was initially denied

writing materials. His lawyers are only allowed to visit twice weekly and their files are

searched, which makes the handling of Mr. Ibrahim’s legal matters much more difficult.

Requests to allow Mr. Ibrahim’s family to see him have been repeatedly denied and, when

his family is allowed to visit, it is usually once every three weeks.

13.

On 16 March 2015, Mr. Ibrahim’s request for a royal pardon was denied and he

officially lost his seat in Parliament. On 30 April 2015, he filed an application in the

Federal Court requesting that a new panel of judges review his sodomy conviction and five-

year sentence on the grounds of injustice. On 6 May 2015, Mr. Ibrahim filed an originating

summons in response to statements by the Election Commission Chairman that he had not

been eligible to vote in a by-election because he was in prison, contrary to article 119 of the

Malaysian Constitution, which entitles a person to vote regardless of his or her

imprisonment.

14.

According to the source, Mr. Ibrahim’s detention resulted from his exercise of the

rights to freedom of opinion and expression and the right of political participation, as

guaranteed by articles 19 and 21 of the Universal Declaration of Human Rights.

15.

The source argues that freedom of expression includes the right to express a

dissenting political opinion and alleges that the charge of sodomy brought against Mr.

Ibrahim was a pretext to discredit and silence him as an opposition leader. Mr. Ibrahim has

openly and repeatedly voiced serious concerns about undemocratic practices in Malaysia

and specifically about the current Prime Minister and his ruling United Malays National

Organization party. Between 2006 and 2012, Mr. Ibrahim participated in a number of

political activities, including criticizing government policy, helping to organize a mass rally

against corruption in the electoral system and commenting publicly about the Government

of Malaysia and the United Malays National Organization.

16.

The source claims that a pattern of targeting and persecuting Mr. Ibrahim can be

seen in his first sodomy trial and in his current trial and detention. Furthermore, the source

refers to statements made by international human rights organizations and observers

criticizing the most recent trial of Mr. Ibrahim and noting its negative effect on human

rights in Malaysia.

17.

In addition, the source claims that Mr. Ibrahim’s detention was in response to his

continued exercise of the right to take part in Government, as a member and leader of the

opposition Pakatan Rakyat coalition. The source points to the significant ongoing influence

of Mr. Ibrahim, as evidenced in the 2013 general election, when the opposition won a

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majority of the popular vote, and argues that the Government of Malaysia sees Mr. Ibrahim

as a threat because of his political success.

18.

The source submits that the Government violated numerous procedural requirements

during Mr. Ibrahim’s most recent sodomy trial, in violation of articles 10 and 11 of the

Universal Declaration of Human Rights. The source argues that the Malaysian judiciary,

consisting of the High Court, Court of Appeal and Federal Court, repeatedly demonstrated a

lack of independence and impartiality during the trial.

19.

The source points to the failure of the courts to take into account two meetings

between the Prime Minister, a senior police officer who had been involved in the earlier

sodomy trial and the intern who made the complaint against Mr. Ibrahim. It was not until

after these two meetings that the intern went to the hospital and filed a police report

alleging that Mr. Ibrahim had sodomized him. According to the source, the timing of these

meetings suggests that the intern was influenced or coerced into making the allegations

against Mr. Ibrahim, and this should have been taken into consideration in assessing the

credibility of the intern.

20.

Furthermore, the source referred to a relationship that allegedly occurred between

the intern and a female junior prosecutor involved in Mr. Ibrahim’s trial. Mr. Ibrahim’s

lawyers filed a police complaint requesting that an investigation be made into whether the

intern and prosecutor had exchanged confidential prosecution material, and sought to have

the sodomy charge dismissed on the basis that the trial had been compromised. The trial

judge in the High Court dismissed the application, accepting without question that the

junior prosecutor did not have access to key documents and that the intern had no influence

over her actions. The Court of Appeal and Federal Court both refused to hear appeals on

this issue.

21.

The source claims that Mr. Ibrahim’s defence team was repeatedly denied access to

important prosecution evidence, including witness lists, medical evidence, samples, notes

by the doctors who examined the intern and the intern’s statement to police. According to

the source, the courts denied Mr. Ibrahim the right to prepare a defence by refusing to

provide him with the information necessary for his case.

22.

The source alleges that the trial judge demonstrated bias against Mr. Ibrahim by

allowing the trial to proceed without any corroborating medical evidence. The source also

states that the trial judge refused to hold the ruling party-owned newspaper in contempt of

court when, in defiance of a court order, it published pictures of the location where the act

of sodomy allegedly took place and made improper statements about the trial. According to

the source, the trial judge also made intimidating remarks to one of the defence lawyers

when he raised concerns about the fairness of the trial. Mr. Ibrahim’s defence team was

concerned about the independence of the trial judge and made multiple requests for him to

recuse himself from the trial, which were refused by both the trial judge and the Court of

Appeal.

23.

The source claims that the appointment of a Chief Prosecutor with connections to

the ruling party and to a key prosecution witness reveals a conflict of interest and bias

against Mr. Ibrahim. The source alleges that the Chief Prosecutor is the personal confidante

of the Prime Minister and lead counsel for the United Malays National Organization and

was the Chair of an inquiry that found the key prosecution witness to be an unreliable

witness in another case. Mr. Ibrahim’s lawyers raised concerns about this conflict of

interest and bias but the petitions were dismissed as an abuse of process intended to delay

the Government’s appeal against the acquittal of Mr. Ibrahim on sodomy charges in

January 2012.

24.

In addition, the source refers to numerous violations of due process in the Court of

Appeal’s reversal of the acquittal of Mr. Ibrahim. The source claims that the timing of the

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appeal hearing in Mr. Ibrahim’s case was brought forward by one month, which interfered

with the preparation of a defence by Mr. Ibrahim’s lawyers and ensured that Mr. Ibrahim, if

found guilty, would not be eligible to contest a by-election held at that time. The source

also pointed to the haste with which the appeal was heard, noting that the deliberations on

the second day of the appeal lasted only 90 minutes before the Court of Appeal handed

down a unanimous decision in a complicated trial that had been ongoing for nearly six

years. Furthermore, the source noted the Court of Appeal’s insistence on completing the

sentencing in one day, rather than adjourning to allow Mr. Ibrahim’s lawyers time to obtain

a medical report for use in sentencing. His lawyers had requested an adjournment of one

week but were given one hour to prepare, and important medical information relating to

Mr. Ibrahim was not taken into account by the Court of Appeal. The source suggests that

those decisions demonstrate that the Court was influenced by political pressure and was not

acting as a fair, impartial and independent tribunal.

25.

The source notes that, a few moments after the final appeal was dismissed by the

Federal Court, the Prime Minister’s Office released a statement asking for all parties to

respect the legal process and judgement and stating that Malaysia had an independent

judiciary and that there had been many rulings against senior government figures. The

source argues that the Prime Minister’s Office must have known the outcome of the case

before the judgement was released.

26.

The source alleges that there were several instances of interference with defence

witness testimony, including harassment of alibi witnesses by the police and refusal by the

trial judge to compel testimony from available witnesses, such as the current Prime

Minister.

27.

Finally, the source claims that there was an overwhelming lack of credible evidence

against Mr. Ibrahim, and a fair and impartial judiciary could not have concluded that he was

guilty beyond a reasonable doubt. While the source notes that the Working Group will not

substitute itself for a domestic tribunal in assessing the facts in each case, he argues that the

fact that the prosecution and the courts reached their conclusions on the basis of unreliable

physical evidence indicates that there was a miscarriage of justice that amounts to an unfair

trial.

28.

The source submits that the detention of Mr. Ibrahim is arbitrary and falls under

categories II and III of the Working Group’s categories of arbitrary detention.

Response from the Government

29.

The Working Group transmitted the allegations from the source to the Government

of Malaysia on 25 June 2015 under its regular procedure, requesting the Government to

provide detailed information by 26 August 2015 about the current situation of Mr. Ibrahim

and to clarify the legal provisions justifying his continued detention. The Working Group

regrets that it has not received a response from the Government to this communication.

Discussion

30.

In the absence of a response from the Government, the Working Group has decided

to render its opinion on the detention of Mr. Ibrahim in conformity with paragraph 15 of its

methods of work.

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31.

In its jurisprudence, the Working Group has established the ways in which it deals

with evidentiary issues.1 If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the given allegations. Where

the Government has not responded to a request from the Working Group for information,

the Working Group may base its opinion on the information provided by the source. In the

case of Mr. Ibrahim, the Working Group considers that the source has established a credible

prima facie case.

32.

The Working Group considers that the information presented by the source discloses

a violation of Mr. Ibrahim’s right to a fair trial, particularly the right to a fair hearing by an

independent and impartial tribunal under article 10 of the Universal Declaration of Human

Rights, and the right to be presumed innocent until proved guilty according to law in a

public trial at which he has had all the guarantees necessary for his defence under article

11 (1) of the Declaration. In particular, the Working Group refers to the allegations made

by the source, which were not refuted by the Government, in relation to the bias of judges

involved in the trial and appeal process, the denial of access to prosecution evidence,

interference with defence witnesses and the haste with which the appeal and sentencing

were conducted.

33.

In addition, principle 21 of the Basic Principles on the Role of Lawyers requires

competent authorities to ensure that lawyers have access to appropriate information, files

and documents in their possession or control in sufficient time to enable the lawyers to

provide effective legal assistance. The allegations made by the source disclose violations of

principles 1, 5 (1), 6, 18, 19, 24 and 36 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment.

34.

The Working Group concludes that the breaches of articles 10 and 11 of the

Universal Declaration of Human Rights in the case of Mr. Ibrahim are of such gravity as to

give his deprivation of liberty an arbitrary character, falling within category III of the

categories applicable to the consideration of cases submitted to the Working Group.

35.

The alleged actions and conduct of the prosecution contravene the duty to ensure

due process, as set forth in guidelines 12, 13 and 14 of the Guidelines on the Role of

Prosecutors. Guideline 12 requires prosecutors to perform their duties fairly and to respect

and protect human dignity and uphold human rights, thus contributing to ensuring due

process. Guideline 13, in its subparagraphs (a) and (b), requires prosecutors to carry out

their functions impartially and to avoid discrimination, including on political grounds, and

to act with objectivity and take proper account of the position of the suspect and victim.

The alleged actions and conduct of the High Court, the Court of Appeal and the Federal

Court contravene the duty to decide matters impartially and fairly in accordance with

principles 2 and 6 of the Basic Principles on the Independence of the Judiciary. The

Government has contravened principles 1 and 4 by failing to provide Mr. Ibrahim with an

independent and impartial tribunal.

36.

Turning to the source’s claims in relation to category II, the Working Group has

analysed: (a) the information provided by the source; (b) the history of the proceedings

brought against Mr. Ibrahim, particularly the pattern of persecution of Mr. Ibrahim in

previous proceedings on sodomy charges, which were later overturned on appeal; and (c)

the statements issued by prominent and respected human rights organizations, including the

Office of the United Nations High Commissioner for Human Rights, in relation to Mr.

1 See, for example, the report of the Working Group 26 December 2011 (see A/HRC/19/57, para. 68)

and opinion No. 52/2014 (Australia and Papua New Guinea).

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Ibrahim’s most recent trial. Taken together, these factors provide a persuasive body of

evidence, which has not been contested by the Government, that Mr. Ibrahim has been

specifically targeted by the Malaysian authorities. Furthermore, the violations of Mr.

Ibrahim’s right to a fair trial discussed above are so serious as to lead the Working Group to

conclude that the current sodomy charges against Mr. Ibrahim were politically motivated.

37.

The Working Group considers that the detention of Mr. Ibrahim was related to his

activities as a political opposition leader. In particular, the Working Group takes note of the

fact that, as a result of his imprisonment, Mr. Ibrahim has been barred from Parliament and

can no longer serve as a Member of Parliament and Leader of the Opposition. He is also

prevented from undertaking his former advocacy roles in relation to human rights issues,

such as free and fair elections and corruption.2

38.

The Working Group concludes that there is a violation of Mr. Ibrahim’s right to

freedom of opinion and expression and his right to take part in government under articles

19 and 21 of the Universal Declaration of Human Rights, and that the case falls within

category II of the categories applicable to the consideration of cases submitted to the

Working Group.

39.

The Working Group wishes to record its concern about Mr. Ibrahim’s physical and

psychological integrity while serving the five years of imprisonment imposed in February

2015. In particular, the Working Group refers to the allegations made by the source that Mr.

Ibrahim is being held in solitary confinement. The Working Group reminds the

Government that efforts addressed to the abolition of solitary confinement as a punishment,

or to the restriction of its use, should be undertaken and encouraged.3

40.

The Working Group considers that the treatment of Mr. Ibrahim during his

detention, which was not contested by the Government, may have violated the prohibition

of torture or other cruel, inhuman or degrading treatment under article 5 of the Universal

Declaration of Human Rights. The Working Group will therefore refer the matter to the

relevant Special Rapporteur for further consideration of the circumstances of this case and,

if necessary, appropriate action.

Disposition

41.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Mr. Ibrahim is arbitrary, being in contravention of

articles 10, 11, 19 and 21 of the Universal Declaration of Human Rights, and falls

within categories II and III of the categories applicable to the consideration of cases

submitted to the Working Group.

42.

Consequent upon the opinion rendered, the Working Group requests the

Government to take the steps necessary to remedy the situation of Mr. Ibrahim without

delay and to bring it into conformity with the standards and principles in the Universal

Declaration of Human Rights. The Working Group also encourages the Government to

accede to the International Covenant on Civil and Political Rights.

2 Mr. Ibrahim’s right to strive for the promotion of human rights is protected by the Declaration on the

Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect

Universally Recognized Human Rights and Fundamental Freedoms, in particular articles 1, 5-9 and

12.

3 Principle 7 of the Basic Principles for the Treatment of Prisoners.

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43.

Taking into account all the circumstances of the case, the Working Group considers

that the adequate remedy would be to release Mr. Ibrahim immediately, and ensure that the

political rights that were denied while in arbitrary detention be reinstated.

44.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

considers it appropriate to refer the allegations regarding the treatment of Mr. Ibrahim

during his term of imprisonment to the Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment for appropriate action.

[Adopted on 1 September 2015]