From the Editors
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In a secret session on 10 April 2012, the Specialized Criminal Court in Riyadh sentenced Mohammed Saleh Al-Bajady, who was denied legal representation, to four years in prison followed by a five-year travel ban. A day later, the same court sentenced Dr. Yousif Al Ahmad, dean of the law faculty of Imam Mohamed Bin Saud Islamic University in Riyadh, to five years in prison, a five-year travel ban, and a 27,500-dollar fine. The sentence of both Saudi political activists demonstrates a recent shift in the legal proceedings of Saudi prisoners of conscience. Not only has the imposition of travel bans as a form of punishment been alarmingly increased; peaceful political activists are also being tried in a court whose mandate is to prosecute terrorist and security-related offenses. Where the Ministry of Interior was once the sole institution that issued such punishments, today it is using the courts to give the arbitrary travel bans a legitimate façade. The ministry’s ability to render arbitrary travel bans and overstep the judicial branch are, however, still intact. In light of increasing political activism and mobilization across the Kingdom in the last year, the ministry has resorted to unwarranted travel bans and the special court to suppress freedom of speech and to give a distorted legal legitimacy to its orchestrated attack on dissent.
Using travel bans as a form of punishment for political activism is a violation of International Law, the Arab Charter of Human Rights, the Saudi Basic Law of Governance, and the Saudi Travel Documents Law. The recent shift to having these bans officially issued by the courts, as opposed to the Interior Ministry alone, and thus disclosing them in the public record, presents a new opportunity for the legal community. Activists now can legally challenge these bans in the courts and utilize name-and-shame tactics to curtail the expanding powers of the Interior Ministry, even if the legal challenge proves futile due to the lack of judicial independence.
Travel Bans in Saudi Arabia
Travel bans are indicative of the old school security mentality that prevailed in Saudi Arabia during the pre-1999 Internet era. They largely served their punitive objectives when access to knowledge, information, and the outside world was limited to two official television channels and a handful of government controlled newspapers. A travel ban coupled with a tapped landline achieved full state control on a person’s physical and communication access to the outside world. Today, limiting one’s political and social life-worlds has become increasingly more difficult. On the one hand, new technologies that allow the masses to bypass state-controlled media and Internet censors and blockades are readily available. On the other, the recent Arab uprisings have given rise to much-needed hope and emboldened Saudi activists and youth groups to speak their minds at all costs. That said, restrictions on physical mobility and travel abroad remain the worst nightmare for many Saudis who can afford to leave, and so the use of travel bans as a deterrant is still largely effective in preventing more people from becoming politcally active.
Before the recent court rulings, travel bans were difficult to track because the actual proceedings were never publicized and lacked due process. People banned from traveling were never notified beforehand and would become aware of it at the airport when they actually attempted to leave the country. Given these latest developments, the bans could be divided into two categories: arbitrary bans (normally rendered by the Interior Ministry) and court sanctioned ones.
Until very recently, most travel bans in Saudi Arabia were secret arbitrary bans issued by the Interior Ministry, as illustrated by the case of Abdulrahman Al-Lahim. A well-known human rights lawyer, Al-Lahim was imprisoned and banned from traveling in 2004 along with the two Saudi political reformers he was representing, Abdullah Al-Hamid and Matrouk Al-Falih. His plight became public when he received the 2008 Annual Human Rights Watch Award and was not able to attend the ceremony due to the ban. While all three were pardoned and released in 2005 and the travel ban on Al-Lahim was lifted in 2009, Al-Hamid and Al-Falih are still banned from traveling. In 2007, Human Rights Watch listed the names of twenty-two Saudi activists who were arbitrarily forbidden from traveling without being presented with justification or notification. The majority still cannot travel today.
In its decision to impose arbitrary travel bans, the Interior Ministry does not seem to be deterred by the targeted person’s public status or popularity. After all, one of the most popular religious leaders in the Arab and Muslim worlds, Sheikh Salman Al-oudah, was recently banned from leaving Saudi Arabia. In July 2011, when he was on his way to film his popular television show in Cairo, after he was banned from appearing on the Saudi owned MBC, he learned of the travel ban at the airport. Al Oudah, who is a well-known Islamic scholar with a huge following, spent the mid-1990s in a Saudi prison for demanding political reforms and criticizing the ruling family. Despite his status, the Saudi regime has not issued an official justification of his ban. Yet there is widespread belief that it was due to his support of the Egyptian Revolution when the official Saudi response was against it.
The shift from arbitrary travel bans issued by the Interior Ministry to court-issued travel bans started in July 2011. The Specialized Criminal Court tried sixteen people that month, fourteen of whom received travel bans as a part of their sentence. The remaining two, who are foreigners, will be deported once their prison sentence is over. It was also then that the court sentenced Saud Al-Hashmi to a thirty-year prison term followed by a thirty-year travel ban for fabricated charges related to terrorism. Al-Hashmi had been advocating peaceful political change and respect for human rights, and had attempted to establish an unregistered human rights organization. However, the regime labeled him as a security threat and charged and convicted him of forming a secret organization, attempting to seize power, incitement against the King, financing terrorism, and money laundering. Most of Al-Hashmi's activities were, according to Amnesty International, "related only to the peaceful exercise of the rights to freedom of expression and association." Al-Hashmi’s was the first Specialized Criminal Court trial where journalists were allowed to attend the proceedings and report on it on a daily basis. The case was utilized to show the public that the regime is dealing with alleged terrorists and activists through legal process and not arbitrarily. More importantly, the case was used to make an example of Al-Hashmi and his fellow prisoners to the public. After Al-Hashmi’s trial, travel bans became more frequent in sentencing Saudi prisoners of conscience, as evidenced by the Al-Bijadi and Al-Ahmad trials in 2012. Parallel to this increasing trend, however, the Interior Ministry continues to exercise its authority to impose arbitrary travel bans. In another highly publicized case in March 2012, the Interior Ministry banned human rights activist Mohammed Al-Qahtani and human rights lawyer Walid Abu-Alkhair from traveling without providing any justification.
The use of these two forms of travel bans indicates that the Interior Ministry is adopting a systematic approach in its war against Saudi activists. Those who are already in state custody and whose cases have been widely publicized are, for the most part, receiving court-ordered travel restrictions based on bogus and fabricated “security-related” charges. However, Saudis whose activism is not seen as threatening enough to merit imprisonment and legal proceedings receive arbitrary Interior Ministry issued travel bans as a form of punishment and deterrent for other activists. Since the Saudi courts cannot and are not willing to keep the Interior Ministry’s power in check, the legal community should. This new shift to court-ordered travel bans presents an opportunity for activists to instigate a court battle challenging the legality of travel bans in the Saudi system and combat the Interior Ministry’s war against activists through legal means.
Travel Bans in Saudi and International Law
Legally, both Saudi courts and the Interior Ministry have the authority to issue travel bans. Part 2 of Article 6 of the Saudi Travel Documents Law (promulgated on 29 August 2000) states:
It is prohibited to ban a person from traveling except by a court order or a decision issued by the Interior Minister for specific reasons related to security and for a specified period of time. In both cases, the person banned from traveling should be informed within a week of the issuance of the court order or the Minister’s decision to ban him from traveling.
The stated objective of court-issued travel bans is to ensure that a person who is being prosecuted for an offense does not escape the country and is either present during trials or available to satisfy the rendered sentence. Additionally, there are four instances when the codified laws specify travel bans as a form of punishment: drug smuggling (Article 56), commercial fraud (Article 23), money laundering (Article 5), and debt disputes (Article 586). As for the Interior Ministry, the travel bans must be justified by specific reasons related to security. Despite the vagueness of the wording and its susceptibility to abuse, the Interior Ministry is required to provide its specific justification for the ban. Given the Interior Ministry’s recent reliance on the law, it is important to challenge Saudi courts—as corrupt as they are—to solicit an interpretation of this language from them and see whether the court has the authority to scrutinize the justification provided by the Interior Ministry. There are no constitutional courts in Saudi with the power to invalidate laws and the law of precedent does not apply. Hence, one court’s interpretation might differ vastly from another and is not binding. However, the recent shift constitutes an opportunity for the legal community to highlight these gaps and use them to their advantage.
Although travel bans are prohibited by international human rights law, it is widely used as a form of punishment by such countries as Burma, China, Russia, Syria, Israel, Belarus, Iran, Bahrain, Uzbekistan, UAE, Yemen, and Saudi Arabia. Article 13 of the Universal Declaration of Human Rights (UDHR) refers to the right of every person “to leave any country, including his own, and to return to his country.” The Declaration stipulates that a government can only invoke limitations on the exercise of rights necessary to meet “the just requirements of morality, public order and the general welfare in a democratic society” (UDHR Article 29(2)). Freedom of movement includes the right to travel, the right to leave a state, and the right to enter one’s state. Article 12 of the International Convention on Civil and Political Rights (ICCPR) incorporates this right into treaty law:
(2) Everyone shall be free to leave any country, including his own.
(3) The above-mentioned rights shall not be subject to any restrictions except those provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
In 1999, the United Nations Human Rights Committee, which was charged with interpreting the treaty, issued guidelines for Article 12 of the ICCPR in its "General Comment No. 27: Freedom of Movement." It declared that a state is permitted to restrict the individual's ability to travel only if the restriction “meets the test of necessity and the requirements of proportionality” where it “must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.” It is worth mentioning that Saudi Arabia has neither signed nor ratified the ICCPR.
Finally, Part 1 of Article 27 of the League of Arab States' Charter on Human Rights, which was signed and ratified by all twenty-two members including Saudi Arabia, declares that “[n]o one may be arbitrarily or unlawfully prevented from leaving any country, including his own, nor prohibited from residing, or compelled to reside, in any part of that country.”
Whether restricting freedom of movement is based on maintaining “public order,” “the general welfare in a democratic society,” or “national security,” the state institutions rendering the ban are required to provide clear justification for imposing it; the justification, in turn, must be linked to these legitimate aims and not arbitrary; and the ban must be the least intrusive resort and absolutely necessary. Travel bans in Saudi Arabia thus violate International Law in various regards. First, they are handed out arbitrarily as pure punishment for political activism and have no link to any of the legitimate goals enumerated by International Law. The Interior Ministry usually resorts to “security related” reasons on the rare occasions that it does provide justification for its imposed travel bans. International Law dictates that a government can only invoke limitations on the exercise of rights necessary to meet the above mentioned conditions. Second, even in cases where travel bans are rendered by the courts, the latter fail to provide any justification for the bans or their necessity, making them purely arbitrary. The courts even refuse to provide the person sentenced with a copy of the sentence to review it.
In addition to violating International Law, the current practice of travel bans in Saudi Arabia violates local Saudi law. First, the Interior Ministry’s systematic travel bans are in violation of Article 6 of the Travel Document Law. The Interior Ministry does not give specific security-related reasons for the travel bans. If the court looks carefully at the justification behind the travel bans issued by the Interior Ministry, it will find that it is based on combating political activism with no connection or threat to national security in violation of the Travel Document Law. However, this assumes that courts in Saudi Arabia are not part of the authoritarian ruling machine, that due diligence exists, and that the courts have the power to invalidate the actions of the Interior Ministry, especially in political cases. Saudi courts, however, lack any form of judicial independence. These cases are normally highly publicized to serve as a deterrent to other activists and not to serve as a legal remedy. Secondly, the Interior Ministry does not inform the person banned from traveling within a week of issuing its decision as is legally required. The cases of Muhanna Al-Hubail, Shaikh Salman Al-Oudah, Abdulrahman Al-Lahim, and Mohammed Said Taib show that people are still being informed that they are banned from travel only when they attempt to leave the country, months after the order is actually issued. Finally, even in cases where the courts issue the travel ban sentence, they fail to reference any codified or Shari’a law in violation of Article 38 of the Saudi Basic Law of Government, which states that “No conviction or penalty shall be inflicted without reference to the Shari’a or the provisions of the Law.”
Travel bans as arbitrary forms of punishment are illegal both according to Saudi and International Law. However, the Interior Ministry, in its heigtened war against political activists, continues to issue arbitrary travel bans to silence and punish any form of dissent. The ministry’s use of courts to legitimate its actions is a serious cause for concern, one that should not go unnoticed. The legal community should also take this as an opportunity to challenge the legality of these bans, and the real purpose they serve, using the court system. Even if this legal challenge does not yield to an end of the travel bans, it will be successful for various reasons. It will highlight the courts’ lack of independence, and more importantly it will help tame the Interior Ministry expanding powers. Since the Interior Ministry is not subject to institutionalized checks or balances, a grassroots legal battle, as well as a social media campaign, is essential to publicize and curtail its dangerous abuse and overreach.
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