Saudi Terorism Law

7/29/2019 Saudi Terorism Law

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In July 2011, Amnesty International published aleaked copyof 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 recentappointment 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, bylocal activists, and

internationally, withAmnesty InternationalandHuman Rights Watchleading 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 protestsand civil disobedience, and public debate growing over the injustices suffered bySaudi

prisoners of conscience, the Anti-Terror Law seeks to forestall any movement towardsenhanced legal protections.

The regime response was limited to a letter written by theSaudi Ambassadorin London,

emphasizing that the Anti-Terror Law provides both for the need to deal with terrorismwithin 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 itsflaws, 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 firstLaw of Criminal Procedure(LCP). This lawcontains 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 Saudicitizens 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. Itprovidedthe 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 heldincommunicado 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 citizens privacy
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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 byspecific information and probable cause is required. Private conversations are highly

protected in the articles of the LCP. Monitoring peoples 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 informedof 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 sectionsof 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 capitalcrimes that require arrest.

The LCP is far from perfect and significant changes must be made for it to meetinternational standards and conform to regional and universal treaties. These

shortcomings were highlighted by Human Rights Watch in its2008 report, which focusedits 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, theirelements, 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, activistsavoid 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 nobodycan 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 twomain principles. The first one

is what is known asthe fruit of the poisonous tree doctrine. The doctrine states that apiece 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 reformare 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 LCPand roll back what had until that point been incremental progress in legal reform.

The Draft Penal Law of Terrorism Crimes and Financing Terrorism
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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, agreat number of international and regional treaties, different anti-terror laws in the region,

and the United Nations Security CouncilResolution 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. Thediscrepancies 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 dueprocess 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 tocertain 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 guaranteedby 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 judgesand 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 societys security, the countrys 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 theLaw 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 toover 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
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lawyer. The proposed Anti-Terror Laws denial of a lawyers 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 expressionand 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-terrorlaw 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 offive 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 aminimum 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 ispunishable 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 lawcriminalizing 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 minimumof 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 judges discretion because unlike other prison

terms, the punishment specifies the minimum number of years of imprisonment not themaximum. 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 mentionedgenerally 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 Councils 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, itis 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 andfreedom of assembly; and it legitimizes enhanced policing and detention power. Using


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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. Ratherthan 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.

Saudi Terorism Law

Documents

Transcript of Saudi Terorism Law