"We urge your intervention because this is a clear case where the tragedy that has happened has been misunderstood as a crime. Further the girl involved was only 17 years-old at the time and has already served five years in prison relating to this incident. There is all the justification for compassionate intervention on behalf of this young girl to save her life."
by Basil Fernando
(October 27, Hong Kong, Sri Lanka Guardian) The Asian Human Rights Commission earnestly requests the kind intervention of all persons of the Muslim faith to kindly intervene to save the life of an innocent Sri Lankan girl who went to Saudi Arabia when she was only 17-years-old and almost less than a month after her arrival faced the unfortunate situation when an infant she was bottle feeding choked and due to her inexperience she was unable to save the infant's life. This was unfortunately misunderstood as an intentional act and she was charged in a court and sentenced to death by beheading in 2007. Due to appeal filed on her behalf the execution was suspended and the Supreme Council, after considering the case, referred the matter for further clarification to the original court. Last week the original court reconfirmed the former verdict due to a confession she is supposed to have made at a police station which she retracted in court as it had been obtained under pressure and without any translation .
The young girl who came from a remote part of Sri Lanka due to the dire poverty of her family had not experience of nursing an infant and it is not disputed that the death occurred while she was bottle feeding the infant. There was no evidence at any stage that she had any dispute with the family or had any attention to deliberately harm the child.
She has already been in jail for five years as the incident happened in 2005 for an unfortunate accident. The Saudi Arabian lawyers who have been handling the case on her behalf at the appeal stage has written the following description of the present situation.
"With respect, we inform you that the Supreme Court has upheld the decision of death penalty in the case of our client, Miss Rizana Nafeek. And this occurred after the case has been discussed many times in the appellate bench and Supreme Court in answer to some observations concerning the translator who translated my client's words, considering him as an illegal translator, and after verification of the accused's own confession on which the court decision was based. Now, this case will be sent to the higher authorities and council of ministers for approval or it may be reviewed by the Wali al Amar.
On the other hand, we want to assure you that we are still doing our best in this case and are not sparing any effort, and this is being done in coordination with the Sri Lankan Embassy in Saudi Arabia, with many concerned Saudi Arabian officials hoping to get the parents of the deceased to withdraw their claim. And when blood relatives accept to withdraw their claim, then her punishment will be cancelled. On the other hand, the Wali al Amar has the authority to cancel the punishment, knowing that such decision cannot be executed unless approved by Aali al Amar, which means that we can still contest this decision before the high authorities."
The Asian Human Rights Commission also understands that His Excellency the President of Sri Lanka has written to His Royal Highness the King of Saudi Arabia asking him to grant pardon to this young, inexperienced girl.
We urge your intervention because this is a clear case where the tragedy that has happened has been misunderstood as a crime. Further the girl involved was only 17 years-old at the time and has already served five years in prison relating to this incident. There is all the justification for compassionate intervention on behalf of this young girl to save her life.
On an earlier occasion we made an appeal to all Muslim scholars to consider the facts in this case and to intervene on her behalf. We reproduce below this initial appeal. We hope that in a spirit of good will and compassion that marks the great religion of Islam you will intervene with His Royal Highness the King as well as the family of the infant who unfortunately faced this tragedy to pardon Rizana Nafeek.
WORLD: AHRC requests the assistance of Muslim scholars on the following questions
July 20, 2007
A Statement by the Asian Human Rights Commission
WORLD: AHRC requests the assistance of Muslim scholars on the following questions
(This is related to the Asian Human Rights Commission's original appeal – WORLD: An appeal to Muslim scholars throughout the world which may be found at: External Internet link)
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 Nafeek's 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.
July 20, 2007
A Statement by the Asian Human Rights Commission
WORLD: AHRC requests the assistance of Muslim scholars on the following questions
(This is related to the Asian Human Rights Commission's original appeal – WORLD: An appeal to Muslim scholars throughout the world which may be found at: External Internet link)
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 Nafeek's 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.
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