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War Against Activists: Coopting "Justice" and the Lack of Judicial Independence

As speculation continues about what potential opportunities and challenges the death of Prince Nayif has delivered to Saudi Arabia, it is worth examining the significant changes already underway, particularly in the Interior Ministry. As delineated in an earlier article, Nayif’s Interior Ministry has used the judicial branch to limit freedoms of speech and movement by administering travel bans as a deterrent to and punishment for political activism. Compounding this trend, the Interior Ministry is now trying political dissidents and human rights advocates in the Specialized Criminal Court, established for the prosecution of accused terrorists, in an attempt to circumvent judicial oversight in, and extend legal legitimacy to, its war against activists.

The Interior Ministry has historically been powerful enough to imprison activists without trial for undetermined periods of time. This shift to giving its war on activism a legal façade by utilizing the court system and codifying repressive laws is a response to the widely publicized accounts of the Interior Ministry’s abuses. The inability of the Saudi state to control social media outlets, coupled with the contagious threat of the Arab uprisings, created a new dilemma for the Interior Ministry. No longer are its abuses of political activists a secret matter known only to a few. Public campaigns on Twitter and other media outlets exposed these abuses and created a counter- narrative to what has been reported by the state media. The Interior Ministry has adapted to these conditions of heightened public scrutiny by using the courts and the laws to legitimize its practices, a course of action that should be subject to great criticism. Despite the 2007 reform effort that poured billions of riyals into the court system, the Saudi judicial branch remains firmly under the control of the Interior Minister and legal campaigns for the protection of rights and the constraint of state power seem extremely limited.

The Interior Ministry has adopted a dual approach of selectively codifying certain aspects of the law, with the goal of enhancing state power vis-à-vis citizen rights, while simultaneously ensuring the complete lack of judicial independence. The abuses of this process have been particularly evident in its war on political activism and, just like the Ministry’s new trend of utilizing travel bans, should not be left unchallenged. Legal activists should scrutinize these codification efforts while fighting for the overarching goal of acquiring complete judicial independence.

The Interior Ministry and its Encroachment on the Judicial Branch

Over the past decade, there has been a systematic expansion of the Interior Ministry’s powers, particularly in its control over the judicial branch. In addition to the illegal court-mandated travel bans, another noticeable trend in the Interior Ministry’s war against activists has been the trying of nonviolent rights advocates and political dissidents in the Specialized Criminal Court. The Specialized Criminal Court was established in 2008 by the Supreme Council of Justice to try terrorist suspects as a response to the public outcry demanding either the release or trial of the alleged terrorists, who had been detained for years without trials. Since 2011, however, it has been used for the prosecution of at least ten peaceful political dissidents. These trials violate the 2007 Judicial Law on two counts; the law states in Article 6(d) that the Supreme Council of Justice alone possesses the prerogative to compose courts of first instance and specify their specializations. First, the trials violate the mandate by dictating to the court who should be tried and when, hence encroaching on the court’s independence. The second violation is the subject of the trials itself; the mandate specifies that the court was established to try terrorist suspects who have been involved in violence-related activities. Forcing the court to expand the mandate to include peaceful dissidents violates the foundational justification for the court’s establishment.

In a further act of judicial interference, the Interior Ministry has established a court committee within the ministry to examine and decide on legal issues, including the release of political prisoners, regardless of what the court may rule. In addition to these special courts and committees, the Draft Anti-Terrorism Law in Saudi Arabia gives the Interior Ministry excessive powers under the cover of law, with no judicial oversight or any form of checks and balances, granting it the power to “take any measure to protect the country from any terrorist danger.” Once the rights supposedly guaranteed by this proposed legislation are violated, those detained can only appeal to the Interior Minister himself, and not the court, to seek legal redress.

At face value, the 2007 Judicial Law establishes certain principles of judicial independence. In practice, however, recent events have proven otherwise.

Codifying Shari’a and Judicial Reform

The Saudi government initiated judicial reform in 2007, with legislation requiring the creation of specialized courts and the implementation of judicial training programs that cost billions of riyals. The legislation focused on three areas for development: infrastructure, reorganization, and manpower. Five years on, the reform process has stagnated. Among the three main focuses, only infrastructure goals are being met. The restructuring of the judicial branch via the establishment of separate commercial, labor, family, criminal, and traffic courts has yet to happen. The recruitment and training of lawyers and judges has similarly been deficient. The performance of some of the hurriedly trained new judges has drawn criticism, even from more seasoned Saudi judges.

The 2007 legislation is deficient in two respects. First, it failed to address the codification of Saudi Law. Saudi Arabia still lacks a penal code, allowing judges significant discretion to decide what behavior constitutes a criminal offense, with grave consequences when it comes to citizen challenges to state authority. Without codification, judges’ discretion is only limited in the area of hudud crimes, which are the seven crimes prescribed in the Quran: murder, apostasy from Islam, theft, adultery, defamation, brigandage, and alcohol use. All other crimes are categorized as tazir, qias, or diyya crimes, which fall under the judges’ discretion, meaning that they create the offenses, define its elements, and fashion the punishment. They follow a reverse process, whereby they create a crime to fit the facts rather than assessing whether the facts fit a defined crime. This discretion makes the judiciary susceptible to abuse by the Interior Ministry.

Hence, the second failure of the 2007 Judicial Law is its lack of any guarantees of judicial independence. The Interior Ministry’s encroachment on the judiciary, coupled with the wide discretion given to judges, has resulted in an ensemble of bizarre and truly unique crimes, including: establishing a human rights organization, distorting the kingdom's reputation, publishing materials that diminish the prestige of the state and its security and judicial institutions, impugning the fairness and integrity of officials in government agencies without sound proof, and withdrawing allegiance to the ruler. Some of these crimes might not sound shocking; after all, Bradley Manning is being tried for similar crimes in the United States. However, when one looks at the complete dissonance between the alleged crimes and the actual actions of the accused, the charges appear capricious. It becomes obvious that these legitimate-sounding charges are being used to combat the mere exercise of freedom of speech and assembly (i.e., charging an activist with treason for trying to secure the release of two elderly people taken hostage by the security services to get their wanted sons to surrender).

The efforts to codify the laws in Saudi Arabia date back to the time of its founder, King Abdulaziz bin Saud. He requested that religious scholars derive a penal code from Islamic jurisprudence, similar to the Ottoman Civil Code, the Mecelle, but there remains no record of any codification as a result of his request. Later, in 1973, King Faisal asked the Council of Senior Ulema (the highest religious authority in Saudi) to vote on codifying the laws; they voted against codification and the efforts were aborted. Finally, in 2007, King Abdullah requested that the judicial branch codify the law as a part of the judicial overhaul. In 2010, the Council of Senior Ulema gave the green light for the codification efforts in order to bring more clarity and uniformity to judicial rulings.

Codification efforts face fierce resistant from local judges:

In the shari`a courts of Saudi Arabia, judges rule on the basis of their own training and knowledge of jurisprudence. Religious scholars feel they should not be bound by whatever rulers have decreed to be the authoritative version of that tradition, and that each judge should have direct and unmediated access to the sources of law and the full range of jurisprudential debates rather than to have them redacted and imposed by a person or committee, no matter how powerful or learned.

A look at the codification efforts in Saudi Arabia reveals mixed motives. Some of the major codification efforts have focused on commercial laws. Hoping to attract foreign investment and diversify the local economy, Saudi Arabia overhauled its commercial law in order to meet accession criteria to the World Trade Organization and the G20. This drove the codification of trial procedure, civil procedure, and labor laws in order to make the local courts more “user-friendly” for foreign investors. However, even this limited codification effort does not translate into expanded or guaranteed individual rights. The codification of labor laws has also meant the abrogation or deterioration of the right to assemble, the right to organize and collectively bargain, and the right to strike. It allows for toothless labor committees whose members are approved by the Labor Ministry and only have nonbinding recommendation power. Strong labor laws and foreign investment tend not to go hand in hand.

The other area of codification centers on laws designed to deter and punish dissent—the Draft Anti-Terrorism Law, the Anti-Cyber Crime Law, the Web Publishing Law, and the Law of Leaking Classified or Secret Documents—and has resulted in an expansion and legalization of the Interior Ministry’s overreaching powers. Hence, repressive measures are gaining legal legitimation through codification. The theme shared by all these recently codified laws is their overt attack on freedom of expression. For instance, the definition of “terrorist crimes” in the Draft Anti-Terrorism Law “entails serious limitations of freedom of expression and assembly by encompassing a wide range of speech and activity under it.” Article 6 of the Anti-Cyber Crime Law makes the “production, preparation, transmission, or storage of material impinging on public order, religious values, public morals, and privacy, through the information network or computers” a punishable crime. The Interior Ministry wasted no time in instructing the courts to use this article in its trial of Saud Al-Hashmi shortly after the law was codified.

Instead of building new courthouses and spending millions on ineffective training, some commentators have argued that a comprehensive and effective judicial overhaul should:

[S]top [judges] from inventing crimes—something that could be achieved by codifying laws and establishing narrow definitions of crimes that comply with international human rights standards. Saudi prosecutors and judges should also strengthen procedural safeguards to ensure fair trials, quash convictions resulting from unfair trials and abolish imprisonment for debt. This is prohibited under international law, including the Arab human rights charter.

Codification, however, certainly does not guarantee any judicial independence. As demonstrated by the recent trials of political activists, codification was utilized by the Interior Ministry to find a legitimate façade for its war on political activists while maintaining its hold on the judicial branch.

Even if the laws were codified, will the judges enforce them? After all, the Law of Travel Documents, the Law of Criminal Procedure, and the Saudi Basic Law of Governance are codified, yet the courts seem disinclined to recognize them. And in some cases, like the judicial committee in the Interior Ministry, the Interior Ministry has the mandate in enforcing or ignoring these laws. The courts, however, seem more inclined to enforce the codified laws that are aimed at combating freedom of speech and assembly like the Anti-Cyber Crime Law that has been cited in the recent political activists’ trials.

If Saudi law is to terminate its role as a buttress to state power, legal activists have a significant role to play. On the one hand, legal activists must scrutinize and challenge the Interior Ministry’s codification efforts, which expand and protect the state and compromise citizen rights. On the other, codification seems the most reliable means by which judicial discretion is constrained, and so legal activists should continue the struggle to codify the law for the creation of a more robust, individual rights-oriented and independent judicial branch.

Legal Challenges

In addition to codification and enforcement obstacles, there are two other crucial legal challenges when it comes to addressing human rights violations in Saudi Arabia. First, the Saudi Basic Law of Governance and international treaties (through self-executing rights) offer opportunities for legal challenges to state abuses.

The Saudi Basic Law of Governance was introduced in 1992 as an empty attempt at political reform after a massive public campaign demanding a populist government and more political rights. It was drafted by an ad hoc committee from the Interior Ministry designated by the King. It tries to combine the supremacy of Islamic jurisprudence and monarchism while paying lip service to constitutionalism. While the Basic Law resulted in a set of laws that reinstate absolute monarchy and Islamic foundations while seemingly being devoid of practical constitutional significance, it may be interpreted as establishing broader principles that could serve as foundational for progressive legal challenges.

Self-executing rights are directly applicable rights guaranteed by international law. They do not require incorporation into the national legal code. Once the country signs and ratifies a self-executing international treaty, the country’s citizens can invoke the rights prescribed in this international treaty in the local courts using the international treaty as a legal basis.

As stated above, with the exception of the few enumerated and codified laws, Saudi judges rely on their own interpretation of shari`a law in rendering their judgment. However, a legal challenge that uses the broader principles of the Saudi Basic Law of Governance or international treaties as a basis has yet to be tested in Saudi courts. In the recent campaign for women’s right to drive in Saudi Arabia, human rights lawyer Abdulrahman Al-Lahim cited violations of certain articles of The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in the official complaint he filed with the court. Saudi Arabia signed and ratified CEDAW in September 2000, reserving the right not to apply it if it contradicts with a vaguely defined Islamic law. Even if the rights prescribed in CEDAW are not considered self-executing rights, by ratifying the treaty, Saudi Arabia is obliged to incorporate these rights into the local legal system. The court has yet to set a date for the trial, but it will be helpful to find out the judicial interpretation and acknowledgement of these documents. Unfortunately, the principle of precedent does not apply in Saudi Arabia. Hence, one court’s interpretation might differ vastly from another and is not binding. But the challenge in itself is an integral step towards enshrining the Saudi Basic Law of Governance, and the various international treaties signed and ratified by Saudi Arabia, into the local legal system in a practical manner. But what if the court decides to enforce these treaties and determine that the Saudi Basic Law of Governance and the international treaties were violated? What would be a proper redress for such violations? This has yet to be tested in Saudi courts.

The second legal challenge to addressing human rights violations in Saudi Arabia concerns the court’s authority, or lack thereof, to invalidate the trial or the punishment imposed by the government when there exists a violation of due process or procedural rights enumerated in the Law of Criminal Procedure or other codified laws.

One of the main criticisms of the Law of Criminal Procedure is its rejection of the Fruit of the Poisonous Tree doctrine, which states that a piece of evidence is inadmissible if obtained through improper procedure. Evidence collected in violation of the criminal code is still admitted in trials. At the same time, the courts have inherited the authority to invalidate the trial or a proceeding due to a violation of the criminal procedure code. Article 190 of the Law of Criminal Procedure states that “if the invalidity is attributable to a correctable defect in the proceedings, the court shall correct it. If it is attributable to an uncorrectable defect, the action shall be held invalid.” The question here is not whether the courts have the authority to decide the validity of evidence; it is whether the courts actually practice that authority. The courts have yet to declare an action “invalid” due to an uncorrectable proceedings defect. Due to the complete lack of transparency and the fact that the court decrees are never made public, it is hard to determine whether these defects have ever been addressed in the court. That is another concern that needs to be practically tested in Saudi courts. If the courts do exercise this right, then human rights lawyers should place more emphasis on this legal course. However, if the courts do not view procedural violations as uncorrectable defects, then the focus should be on finding out the judicial consequences of procedural violations. If the courts lack the authority to declare a violation of the law and provide redress for such violation, what is the point of having the court, and the codified law, in the first place?

Highlighting these legal gaps is quite essential in the effort to work within the system and try to improve its quality to meet both local standards dictated by the limited codified laws and international standards. Restructuring the courts, recruiting and training more judges, and building more courts might be important aspects of overhauling the judicial system. However, addressing these gaps and ensuring judicial independence are much more essential.

Alarming Trends

This lack of competency and independence in the judicial branch has allowed the Interior Ministry to try peaceful political activists in the Specialized Criminal Court in violation of the court’s mandate. At the same time, it continues to use the courts to render more travel bans as a complementary part to the sentences. These two trends are the most prevalent of legal strategies within the broader war on political activists waged by the Interior Ministry. Utilizing the court system to suppress freedom of speech and obscuring the arbitrary deprivation of basic human rights in a cloud of legal legitimacy are alarming developments within the broader expansion of Interior Ministry power. For any judicial overhaul to be sustainable, it must have full independence and a solid foundation. Unfortunately, due to its subordination to the Interior Ministry, it lacks both.

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