(This is related to the AHRCs original appeal WORLD: An appeal to Muslim scholars throughout the world which may be found at:http://www.ahrchk.net/statements/mainfile.php/2007statements/1111/)
The Asian Human Rights Commission is very much encouraged by the responses to its appeal to the Muslim scholars on July 9, 2007 on the issues relating to Rizana Nafeeks case.
We are also very much encouraged by the many appeals made on her behalf on the basis of compassionate understanding.
As the Asian Human Rights Commission is mostly familiar with the operation of Common and Civil Law systems and as there are many issues that need to be understood about the operation of Islamic laws regarding some fundamental aspects of the case, we request the assistance of the Muslim scholars to kindly consider the following issues we have raised and to inform us about their view on these issues. This will help a number of persons who are studying these matters in relation to this particular case as well as to other cases. These issues are also of general interest.
You may send your responses to the Asian Human Rights Commission which will share them with persons who are studying these issues.
The issues of particular importance to us are as follows:
a. How would the issue of complaints of the use of various methods of causing duress to obtain a confession be examined in a court in Saudi Arabia? Both in Common and Civil Law such a complaint would be separately examined by the judges. If the court was satisfied that the complaint is true it will not attach any importance to the confession. The court will 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 example, if it is revealed that the actual age of the accused is 17 and not 24 as originally claimed, would the court reexamine its verdict taking into consideration whatever implications that arise from this new information.
c. How would a Saudi Arabian court examine the issue of mens rea or the mental element in crime? Both in Common and Civil Law intention to cause the crime is an essential ingredient of the crime itself. There is extremely sophisticated jurisprudence on this issue. I am sure in the centuries of practice of Islamic Law this would have received serious consideration.
d. A further issue of concern is the manner in which guilt is determined and the proportionality of the punishment is measured. Again, in both Common and Civil Law there has been centuries of debate on these matters and some basic principles have become part of the common practice of all courts.
e. What importance would a Saudi Arabian appeals court attach to the absence of legal representation at the stage of the trial? It is now common practice both under Common and Civil Law to consider the issue of legal representation, particularly in cases carrying serious sentences such as the death penalty as a very essential aspect of a fair trial. A Common or Civil Law appeal court may set aside the decision of a trial court if it is found that there had been no legal representation for the accused. More and more the courts are also recognising that even if there had been legal representation, if such representation was inadequate, for example, if the Lawyer was palpably incompetent, that it is a strong ground to allow an 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 both Common and Civil Law jurisdiction it is now a recognised duty to deal with such disability on the part of aliens and to provide services which enable them to participate in the trial process with full comprehension and dignity. The failures in this regard would be considered as a flaw in the trial giving rise to a reasonable ground for appeal.
These and several other matters of principle are of much interest to us and we would very much like to be able to have a discussion on these matters with the learned professionals.
Your responses are most welcome.
