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In July 2011, Amnesty International published a leaked copy of the draft Saudi Arabian Penal Law for Terrorism Crimes and Financing of Terrorism. This Anti-Terror Law, which grants the Ministry of Interior unprecedented levels of authority and discretion in intelligence gathering, policing, and detention, has already been reviewed by the Security Committee of the Consultative Council (Majlis al-Shura) and the Committee of Experts in the Ministers’ Council, and awaits final approval for its enactment. Given the recent appointment of the Interior Minister Prince Nayef Bin Abdulaziz as the new Crown Prince, it seems likely that the law will soon be adopted.
Widespread criticism of the law has been voiced internally, by local activists, and internationally, with Amnesty International and Human Rights Watch leading the way. Unlike the US Patriot Act and the Terrorism Act 2006 of Great Britain, both of which allowed for tremendous expansions of state power, the proposed Anti-Terror Law seems designed to legitimize already-existing extra-judicial practices of the Saudi state by cloaking them in the rule of law. With broad support for legal reforms, continued protests and civil disobedience, and public debate growing over the injustices suffered by Saudi prisoners of conscience, the Anti-Terror Law seeks to forestall any movement towards enhanced legal protections.
The regime response was limited to a letter written by the Saudi Ambassador in London, emphasizing that the Anti-Terror Law provides both for the need to deal with terrorism within a legal framework, and for the protection of the “legitimate rights of suspects.” What has been neglected in this exchange between officials and critics is that the unapplied 2002 Law of Criminal Procedure (LCP) already exists to ensure a speedy, fair, and inexpensive trial, while guaranteeing basic rights. While the LCP is not without its flaws, unlike the proposed Anti-Terrorism Law, it limits the discretionary power of the Ministry of Interior and provides a foundation for a broader set of legal reforms.
The Saudi Criminal Procedure LCP
In 2002 Saudi Arabia published its first Law of Criminal Procedure (LCP). This law contains 225 articles laying out the process for the initiation of criminal action; rules of collecting and preserving evidence; conditions of arrest and pretrial detention, including bail; and the jurisdiction of courts and their proceedings … These new laws gave Saudi citizens and residents a clearer definition of their rights in detention and at trial and laid out the procedures the investigators and courts must follow. For the first time, defendants had the right to legal counsel during investigation as well as at trial (Law of Criminal Procedure, Article 4).
The LCP codified certain guarantees and rights absent in Saudi jurisprudence. It provided the right to be represented by a lawyer throughout investigations, charging, and trials, and guarded against prolonged detention as well. Article 33 and Article 34 state that a person cannot be held for over twenty-four hours without a written order and must be seen by an investigator and charged within this twenty-four-hour period. A person cannot be held incommunicado and must be able to inform others of his or her arrest and charges. Similarly, the LCP provided for a proper searching procedure where the citizen’s privacy is respected. The search must be done during the daytime; the person must be present when his or her home is being searched; and finally, a detailed warrant supported by specific information and probable cause is required. Private conversations are highly protected in the articles of the LCP. Monitoring people’s communications and wiretapping must be supported by probable cause and its warrant is a temporary one that must be renewed every ten days. During the investigation, the accused must be informed of the charge during the first meeting with the investigators and no form of coercion may be used. The fact that the authorities have a twenty-four-hour period to investigate and charge or release the detainee was emphasized through repetition in two different sections of the LCP. This twenty-four-hour period could be extended to six months, however, only after the initiation of investigation, and before charging the suspect, if specified reasons are met. Finally, the LCP gives the Minister of Interior the discretion to define the capital crimes that require arrest.
The LCP is far from perfect and significant changes must be made for it to meet international standards and conform to regional and universal treaties. These shortcomings were highlighted by Human Rights Watch in its 2008 report, which focused its criticism on the lack of codification of crimes. Judges and investigators are given the discretion to interpret the Sharia (Islamic Jurisprudence) texts and define the crimes, their elements, and the punishment. With the lack of codification, prompt charging is not possible since the investigator will only charge after the completion of the investigation and not within the required twenty-four-hour period.
Saudi lawyers and activists based their analysis and criticism of the LCP on Sharia law (Islamic Jurisprudence), a very strategic move in Saudi Arabia. Using this tactic, activists avoid common accusations of Western influence, which can serve to delegitimize their perspective in the public eye. Waleed Al-Majid, a Saudi writer and researcher, argued that the LCP did not accommodate a key Sharia principle, which stipulates that nobody can be punished without a text, which requires a clear and intelligible definition of crimes and guards against detention without charge. Human rights activist and Saudi lawyer Abdulrahman Al-Lahim pointed out that the LCP lacks two main principles. The first one is what is known as the fruit of the poisonous tree doctrine. The doctrine states that a piece of evidence is inadmissible if obtained through improper procedure. The second doctrine is the presumption of innocence. The LCP places the burden of proof on the accused not the investigator. Despite these problems, however, advocates of legal reform are enthusiastic for the LCP to be implemented. As Al-Majid has pointed out, the lack of implementation hinders any possible improvement through legal challenge and practice.
The strength, as well as the weakness, of the LCP became apparent in the aftermath of terrorist attacks in 2003 and 2004 in Saudi Arabia. Instead of putting the LCP to the test and strengthening it in the process of implementing it, the Saudi government decided to take a different route. The attacks had provided grounds for the regime to shelve the LCP and roll back what had until that point been incremental progress in legal reform.
The Draft Penal Law of Terrorism Crimes and Financing Terrorism
The drafting committee listed numerous Saudi and international bodies of law as bases and justifications for the proposed Anti-Terror Law. The long list includes the LCP, a great number of international and regional treaties, different anti-terror laws in the region, and the United Nations Security Council Resolution 1373 of 2001. The latter dictates that states shall bring every person participating in the commission of a terrorist act in any form or shape to justice and establish such terrorist acts as crimes in domestic law. Interestingly, the Law of Criminal Procedure was also cited as legal basis. While the Anti-Terror Law certainly violates numerous international treaties and basic human rights principles, it is in reference to the LCP that these contraventions are most important. The discrepancies between the two laws provide the best basis for legal and popular challenges to the enactment of the Anti-Terror Law.
The draft law does four main things. First, it gives the Ministry of Interior and the Minister himself an unprecedented level of authority and discretion. Second, it defines terrorist crimes over-broadly and vaguely. Third, it lacks the basic measures of due process and fair trial. Finally, and more importantly, it chills and officially bans free expression and the freedom of assembly.
The Ministry of Interior has maintained a great level of authority for a long time. With the lack of any procedural laws and criminal codes, this power has been largely unchecked. The adoption of the LCP was meant to limit its authority and subject it to certain constraints, but it was never implemented. The proposed Anti-Terrorism Law, on the other hand, gives the Interior Minister excessive powers under the cover of law, with no judicial oversight or any form of checks and balances, granting him the power to “take any measure to protect the country from any terrorist danger.” Once the rights guaranteed by this proposed legislation are violated, the person can only appeal to the Interior Minister himself, and not the court, to seek relief.
The proposed Anti-Terror Law goes against the current movement to codify crimes in Saudi Arabia to limit the discretion of the Ministry of Interior and the judges. It defines the crimes in exceedingly broad and vague terms and leaves the door open to the judges and Ministry of Interior to determine which actions fall under the vast umbrella of “terrorist crimes.” In addition to terrorist activities, the law encompasses some major forms of freedom of speech. It prohibits any criticism of the government or the country because it might threaten the society’s security, the country’s unity and its general order, or harm its reputation or position.
The proposed law also abrogates the basic principles of due process and fair trial that the Law of Criminal Procedure provides for. The LCP established that a person cannot be held in detention for over a twenty-four-hour (or forty-eight-hour) period without investigation. However, the proposed Anti-Terror Law extends the investigation period to over six months, subject to extension. It gives the authority the right to detain suspects for over a year, subject to extension, without justification, charge, or trial. A detainee can be held incommunicado for over 120 days, subject to extension. The LCP on the other hand states that a detainee has an immediate right to communicate with anybody, including a lawyer. The proposed Anti-Terror Law’s denial of a lawyer’s assistance extends beyond the investigation stage to the trial period.
Finally, the proposed anti-terror law further curtails freedom of assembly, limits freedom of expression, and provides excessive punishments for vague and over-broad crimes. The definition of terrorist crimes in itself entails serious limitations of freedom of expression and assembly by encompassing a wide range of speech and activity under it. In addition to the crimes listed in the definition, the punishment section of the proposed anti-terror law lists additional crimes that are punishable by this proposed law. For example, claiming that the King or the Crown Prince are non-believers, or questioning their integrity or honesty is punishable by a minimum of ten years. A minimum punishment of five years is imposed on any person who says or prints anything that might endanger the general security, shake the stability of the country, or incite anybody to do so. Establishing, leading, organizing or administrating any “terrorist” entity is punishable by a minimum of twenty-five years. Being a member of such an entity is punishable by a minimum of ten years, while recruiting or financing the entity is punishable by a minimum of fifteen years of imprisonment. A public appraisal of any “terrorist act” is punishable by a minimum of five years of imprisonment. The minimum punishment for holding a meeting to plan a “terrorist attack” is ten years.
Protesting for any reason is prohibited in Saudi Arabia, though there was never a law criminalizing it. The proposed Anti-Terror Law changes that. Article 47 of the proposed anti-terror law makes it illegal to protest for any reason, whether related to a terrorist crime or not. It states “a minimum of 3 years of imprisonment should be imposed on anybody who organizes a protest, participates in organizing it, aids in its preparation, incites or invites others to participate.” Attending a protest is punishable by a minimum of one year of imprisonment, while the punishment increases to seven if the person carries any sign or picture that threatens the stability or unity of the country.
The abovementioned punishments limit the judge’s discretion because unlike other prison terms, the punishment specifies the minimum number of years of imprisonment not the maximum. Furthermore, when the general, fluid, and broad language mentioned in the punishment articles are coupled with the vague and overbroad definition of “terrorist crimes,” the combination is prone to abuse. Finally, the ban on protesting is mentioned generally without any reference to terrorist activity, and seems to be a direct response to the uprisings in the Arab World. With the lack of a constitutional court to declare that law invalid, it cannot be attacked as unjust or in violation of the Saudi Constitution or Basic Law.
Security Council’s Resolution 1373 called on all nations to bring persons accused of terrorist crimes to justice. This proposed anti-terror law does anything but that. Rather, it is a response to the continued political unrest of the Arab uprisings, increasing demands for legal reform, and the issue of political prisoners. Instead of strengthening civil liberties to stabilize the country and face criticisms, this proposed law does the opposite. It strips citizens of some of their basic civil liberties: their freedom of speech and freedom of assembly; and it legitimizes enhanced policing and detention power. Using the threat of terrorism as an opportunity to curtail citizens’ freedom and what limited political and legal rights they have can only breed more violence and terrorism. Rather than enacting this dangerous and repressive law, we should consider implementing the already-approved Law of Criminal Procedure, which, with time, could provide the foundations for a just rule of law.
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