JEDDAH, 8 February 2006 — Reprimanding sentences, which are usually in the form of jail time or flogging or both, are passed based on the judge’s jurisprudence and discretion, and herein lies the problem.
For many lawyers, human rights advocates, religious scholars, the lack of codification and regulations upon which to refer when sentencing people for misdemeanors and disputes, makes the Saudi judicial system arbitrary and discriminatory.
Except for certain crimes such as murder, burglary and adultery, Islam does not specify the punishment to be handed to perpetrators for a whole range of crimes, from domestic violence to commercial fraud and drinking alcohol. However, rulers and scholars throughout Islamic history have guided later judges and provided some reference on cases, but overall the judges rely on their personal opinions and interpretations of each individual case when sentencing, leaving many to wonder about the fairness and bases for these judgments.
Sentences on crimes in Saudi Arabia fall under three categories: Punishment, retribution and reprimand. Punishment sentences, for murder for example, are specified in Islamic law and cannot be appealed once proven. Retribution sentences are meant to satisfy and compensate the victim or their family, referred to as private right, while reprimand is meant to deter and discipline the perpetrator of the offense, referred to as public right. These reprimand sentences are passed by the judge as he finds to be in the public’s interest and deserving in accordance with his evaluation of the crime committed. Unfortunately, while some judges are lenient others are very severe. The Shoura Council has previously discussed the issue and recommended establishing a codified system for reprimanding sentences as a reference for judges.
At a press conference recently, Justice Minister Abdullah Al-Asheikh said that his ministry was directed by the king to put a framework for punitive and reprimanding sentences.
Highly publicized cases such as Nour Miyati’s, the Indonesian maid who was sentenced to 79 lashes because she changed her testimony against her sponsor accusing him of torture, or that of teacher Muhammad Al-Harbi, sentenced to 750 lashes for disrespecting Islam, have raised questions on the judges’ judgments. While Miyati’s sentence is being appealed and Al-Harbi received a royal pardon, there are many others who are imprisoned and flogged for similarly unsupported or minor accusations.
“There are no guidelines, each judge gives a sentence based on his efforts and interpretations,” said a lawyer who did not wish to be named. “They are supposed to take such things into consideration as the age, health condition and sex of the accused, but many don’t. Sometimes you have the same crime or offense committed by two different people and each received a different sentence without really understanding why. You can always appeal these sentences but sometimes you hit a brick wall. The accused ends up getting lashed up to 3,000 times for a petty crime even if it is not a repeat offense,” said the lawyer.
After visiting some of the jails in Saudi Arabia last year, the National Society for Human Rights (NSHR) issued a report of its observations on prison conditions and the prisoners. Among their comments were the harsh and exaggerated jail-time and flogging sentences, especially for women.
Suhaila Hammad, senior member of NSHR, said that a woman can get 2,000 lashes while a man committing a similar crime would receive a much more lenient punishment.
“Those who implement the flogging also don’t take into consideration the prisoner’s health condition,” said Hammad. She particularly emphasized the need to postpone implementing the lashing sentence on pregnant women until after they deliver.
Another objection she had on lashing sentences is regarding minors. “A minor should not be treated as an adult even if they are accused of committing a punishable crime,” she said.
