SAUDI ARABIA/SRI LANKA: Hope in the case of Rizana Nafeek
To the recipients of communications through the AHRC network, Rizana Nafeek is a familiar name. The 17-year-old girl from a poor family from a conflict ridden area with a passport indicating her age as 18 arrived in Saudi Arabia as a domestic helper. Within two weeks this young girl was accused of the murder of an infant which she denied, claiming that the death was the result of accidental choking. However, by the time the news reached the outside world she had already been sentenced to death by beheading by a Saudi court and she had only 20 days remaining to make an appeal. The BBC Sinhala Service broadcast this news and expressed the fear that, like four Sri Lankans who had been beheaded earlier, she might face a similar fate.
At this stage the Asian Human Rights Commission wrote twice to the Sri Lankan Foreign Ministry urging intervention to provide legal assistance to the girl. However, it was then learned that it is not the policy of the Sri Lankan Foreign Ministry to provide financial assistance for legal fees. On this basis the Asian Human Rights Commission launched an appeal for raising SR 150,000 which amounted to around US$ 40,000 as legal fees for a very competent legal firm, Al Shammary. With the quick responses received from local as well as outside sources the appeal was launched in the nick of time and the death sentence was suspended until the final hearing of the appeal.
Due to the untiring efforts of Al Shammary the case was taken up and the Supreme Council which sent the case back to the original court of Dawadami. During these proceedings it was discovered that the person who authenticated Rizanas alleged confession was not a qualified translator and may not even have known the Tamil language properly. As the case proceeded with the likelihood that the court may quash the earlier sentence, the happy news has reached us that the parents of the deceased baby may take steps to forgive Rizana, which according to Saudi law brings the matter to an end.
Mohammad Rasooldeen who has reported this case regularly has published the following article on October 5.
Nafeek case: Father willing to forgive
Md Rasooldeen | Arab News
RIYADH: The Kingdom's Human Rights Commission will attempt to persuade the mother of an infant who died in the care of a Sri Lankan woman hired as a house cleaner but given nanny duties to cease pursuit of the death penalty.
The father, according to the mediators, has expressed his desire to forgive the maid.
HRC President Turki Al-Sudairy conveyed the latest information in this much-publicized case to Sri Lankan Ambassador Abdul Ageed Mohammed Marleen at a recent meeting at the HRC headquarters in Riyadh.
Al-Sudairy said that HRC officials met the father, Naif Jiziyan Khalaf Al-Otaibi, and he expressed w illingness to pardon 20-year-old Rizana Nafeek. However, the mother still claims her private right in the case and is not ready to forgive the maid.
Al-Sudairy told Marleen that the HRC will meet the father and mother together and persuade them to pardon the maid at the next hearing on Nov. 5 before a judicial tribunal headed by Chief Justice Sheikh Abdullah Al-Rosaimi.
The local court in Dawadmi found Nafeek guilty in June 2007. Since then her appeals process has bounced a number of times between the local court and the Supreme Judicial Council via the Cassation Court. Her case is still in this appeals process after the Hong Kong-based Asian Human Rights Commission retained legal representation for Nafeek, with the help of contributions from the Lankan community in Saudi Arabia.
Prior to the first verdict that sentenced her to death, Nafeek did not have any legal representation.
Nafeek allegedly signed a confession, but her lawyers argue that the confession was made under duress and, more importantly, Nafeek had no access to a translator during the initial questioning after she was arrested in 2005. Confessions are typically written in Arabic and signed by fingerprint.
It later came to light that Nafeek was recruited illegally as a minor and trafficked to Saudi Arabia on a forged passport.
Her birth certificate says she was 17 at the time she began working for the Saudi family, but her passport states she was not a minor at the time.
It is illegal to bring in foreign workers to Saudi Arabia under the age of 18. An unscrupulous recruitment agent in Colombo may have committed the forgery, thus violating Sri Lankan law and engaging in the trafficking of minors and racketeering. Nobody has been named a suspect in this crime.
Putting to death a person who committed a crime under the age of 18 would violate Article 37 of the UN Convention of the Rights of the Child that Saudi Arabia voluntarily si gned in February 1996.
Marleen said he told Al-Sudairy that whenever there are trials involving Sri Lankan nationals, it is absolutely necessary for Sri Lankan Embassy officials to know the progress of the case in order to avoid "misrepresentations and misgivings."
Embassy officials should be allowed as observers at the hearings, he added, pointing out that an official representative of the Sri Lankan government was not allowed to be present at Nafeek's hearing at the Dawadmi court.
"An effective mechanism must be in place to ensure that the arrests of Sri Lankan nationals are reported to the embassy on a priority basis so that we can provide consular assistance to the detained (suspect)," Marleen told Arab News.
Meanwhile, in a letter addressed to her parents, Nafeek said that this would be her last Eid in the Kingdom since she would either be released and sent home or executed before Eid 2009.
Campaign for Rizana Nafeek
The campaign launched for Rizana Nafeek found overwhelming local and international report is summed up in an article published in Ethics in Action:
Campaigning for the right to life: The case of 17-year-old Rizana Nafeek
Asian Human Rights Commission
On 16 June 2007, 17-year-old Rizana Nafeek, a Sri Lankan migrant worker, was sentenced to death by a Saudi Arabian high court, for the death of a four-month-old infant in her care. The baby died from choking while being bottle fed by Rizana on 22 May 2005. Rizana was arrested by the Saudi police on the same day and allegedly confessed to the crime; however, in February 2007 she retracted this confession, saying the police obtained it under duress. Moreover, at no time was Rizana given translators or legal assistance. In subsequent hearings the three-judge panel noted that if the dead babys family were to pardon Rizana, the case would be closed and Rizana would be free. The family refused, leading to Rizanas sentencing in June. Under Saudi law, Rizana could file an appeal against the death sentence within one month; by 16 July 2007.
Surprisingly, this case was barely reported in the Sri Lankan or international press. For this reason, when it initially came to the attention of the Asian Human Rights Commission (AHRC), it came as a sketchy tale. However, the AHRC took up the case purely on the basis of a 17-year-old being sentenced to death, and issued its first urgent appeal. Only later were more details uncovered, through communication with a number of different persons, including the Sri Lankan ambassador to Saudi Arabia.
Eventually it was realized that the crux of the case came down to filing an appeal against the death sentence; if Rizana was to be saved, the next legal step had to be taken. Amongst all the letter writing to the Saudi Arabian government as well as the family of the dead child, it was necessary that concrete steps be taken within the system; filing an appeal. The deadline was looming, and Rizana was unable to lodge an appeal without financial and legal assistance. The AHRC had written to the Sri Lankan government to assist Rizana in making an appeal, which the government claimed it could not do, as it had no policy regarding such matters. When this was made public, several groups contacted the AHRC and expressed an interest in partially covering the legal cost. The AHRC immediately wrote to the Sri Lankan government asking them to engage lawyers, whose fees would be paid through the AHRC. The AHRC then requested persons to donate. Within a short time the fees were collected and legal representation was attained for Rizana, ensuring that she was able to make the deadline of July 16 for the appeal.
This interest indicated that when people are asked specifically to do things, they are more likely to take an interest in cases. It is therefore useful for human rights groups to move beyond certain self imposed boundaries when attempting to garner support for cases.
It was also important to note that throughout the two weeks in which these events occurred, there was a lot of media support. From the BBC to the International Herald Tribune, from Al Jazeera to local Sri Lankan media, correspondents called up the AHRC and asked for information on Rizana. Other individuals and groups wrote to the AHRC expressing their support. Within a short time, there were 30 000 signatures to an online petition requesting pardon for Rizana. A local petition was later handed over to the Saudi Arabian embassy in Colombo, Sri Lanka with 100 000 signatures. While there was a lot of attention specifically on Rizana, there was just as much attention on the issues of migrant workers and the use of the death penalty. Discussion focused around the Convention on the Protection of All Migrant Workers and Members of their Families, the Vienna Convention on Consular Relations and its Optional Protocol, and previous beheadings of Sri Lankan citizens in Saudi Arabia.
This interest and discussion is ongoing, and the AHRC continues to receive expressions of support towards Rizana.
An appeal to Muslim scholars
The Asian Human Rights Commission (AHRC) is writing to Muslim scholars worldwide regarding the death sentence of a 17-year-old Sri Lankan girl, Rizana Nafeek, in Saudi Arabia.
In the course of Rizana bottle feeding a four-month-old infant, the infant choked to death even as the teenage girl desperately tried to help by way of soothing and stroking the babys chest, face and neck. Due to misunderstandings, the case was presented as the murder of a baby by strangulation. Subsequently, the judges hearing the case requested the babys father, Mr Naif Jiziyan Khklafal Otaibi, to use his prerogative to pardon Rizana, but he refused. On this basis, Rizana was sentenced to death by a Saudi Arabian court on 16 June 2007.
After careful consideration of all the facts, the AHRC is of the view that the babys death was a terrible tragedy, but current events are leading to a further tragedy: the execution of an innocent, inexperienced teenager.
Scholarly considerations can help to make the necessary reflections distinguishing a tragedy from a crime, and from such reflections interventions can be made to prevent a further tragedy. We encourage Muslim scholars to communicate with this unfortunate family and provide them with the necessary counsel and support so they may deal wisely with the case.
While the AHRC is experienced in common and civil law jurisdictions, the same cannot be said of the Islamic legal system. To deepen our knowledge and understanding regarding the operation of Islamic laws in Rizanas case as well as overall, we request Muslim scholars to consider the following issues:
a. How would complaints of causing duress to obtain a confession be examined in a Saudi Arabian court? Under both common and civil law procedures, such a complaint would be separately examined, and if the court was satisfied that the complaint is true, no importance is attached to the confession. The court will then decide the case on the basis of whatever other evidence is available.
b. How would a Saudi Arabian court treat new information which could have a significant influence on understanding the issues relating to the case? For instance, if it is revealed that the actual age of the accused is 17, and not 24 as originally claimed, would the court re-consider its verdict, taking into account any implications arising from this new information?
c. How would mens rea, or the mental element in crime be examined in a Saudi Arabian court? According to both common and civil law systems, the intention to cause the crime is an essential ingredient of the crime itself, and sophisticated jurisprudence regarding this exists. What is the counterpart in Islamic law?
d. What is the manner in which guilt is determined and the proportionality of the punishment measured under Islamic law? Again, common and civil law jurisdictions have seen centuries of debate on these matters and certain basic principles have become the norm in all courts.
e. What importance would a Saudi Arabian appeals court attach to the absence of legal representation during trial? It is now customary in common and civil law systems to consider the issue of legal representation as an essential element of a fair trial, particularly in cases carrying serious sentences such as the death penalty. An appeal court in either system may set aside the decision of a trial court if the accused was not provided legal representation. In fact, courts are also taking the stance that if legal representation was provided but it was inadequate - for instance the lawyer was patently incompetent - there is a strong ground for appeal. How are such matters considered within the Saudi Arabian legal system?
f. How does a Saudi Arabian trial or appeal court consider the issue of persons who are aliens to the country, who are unfamiliar with the culture, laws and legal practices of the country of residence? In common and civil law jurisdictions it is now a recognized duty to provide services which enable such persons to participate in the trial process with full comprehension and dignity. Any failures in this regard would be considered as flaws in the trial, giving rise to reasonable grounds for appeal.
The AHRC invites scholars and practitioners to express their views on these matters by writing to email@example.com. Those wishing to offer their advice to the family of the deceased child may do so through the following address c/o the Sri Lankan Embassy in Riyadh, Saudi Arabia: