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Church State Issues

Saudi Justice, Harsh but Able to Spare the Sword

Mar 23, 2015

NY Times

I don't have much faith in the criminal justice system. Or "criminal injustice system" as former Arizona ACLU head Eleanor Eisnberg calls it. [sorry for misspelling her name] But when you throw in religion it even makes thing up worse.

This article is about mixing the Muslim religion and govenrment, but mixing Christianity and govenrment gives results that are just as bad.

Last most religious people are great people and I don't have a problem with them. It's just the religious zealots and nut jobs that tend to mess up things.

Here in Arizona we have Cathi Herrod and her Center for the Arizona Policy to do that.

Saudi Justice, Harsh but Able to Spare the Sword

By BEN HUBBARDMARCH 22, 2015

BURAIDA, Saudi Arabia — The murder that almost cost Bandar al-Yehiya his head started with an old debt to a close friend.

Struggling to raise the cash, Mr. Yehiya invited the friend to his home and offered him a rifle as payment. But when the friend refused, Mr. Yehiya got angry and shot him in the chest, leaving him dead on the living room couch, the slain man’s brother, Faleh al-Homeidani, said.

Mr. Yehiya confessed to the murder, so under Saudi Arabia’s strict interpretation of Islamic law, he would face the punishment that has made Saudi justice notorious around the world: beheading in the public square.

But the execution never happened.

Saudi Arabia’s justice system is regularly condemned by human rights groups for violating due process, lacking transparency and applying punishments like beheading and amputation. Criticism has grown as Saudi cases have made news abroad: a liberal blogger caned for criticizing religious leaders; activists jailed for advocating reform; a woman held without charge for more than two months for driving a car.

By The New York Times

Such rulings have prompted comparisons to the Islamic State, which regularly beheads its foes and also claims to apply Shariah law.

But Mr. Yehiya was saved because of checks in the Saudi system on the use of harsh punishments. His case wound its way through a yearslong odyssey of law and tradition. Mr. Yehiya reformed in prison, sheikhs and royals appealed for his life, and he was ultimately spared by a daughter of the man he had shot dead.

Mr. Yehiya’s reprieve was the product of a justice system little understood outside the kingdom, one that is based on centuries of Islamic tradition and that prioritizes stability and the strict adherence to Islamic mores over individual rights and freedoms.

“The punishments that are in the Quran — after Allah, the gracious and almighty — are what preserve security in this country,” said Faisal bin Mishaal bin Saud bin Abdulaziz, the prince of Qassim Province, where Mr. Yehiya’s crime took place.

“If there were no retribution,” Prince Faisal said, “there would be total chaos.”

But built into the system as well, he said, are avenues for mercy.

Some crimes and their punishments are clear in the Saudi system, like execution for murder, amputation for grand theft, and lashes for premarital sex or the drinking of alcohol. The Saudi state also has modern laws for offenses like drug trafficking and weapons use, as well as for cybercrime and terrorism, which human rights groups say the government often uses to punish nonviolent dissidents.

But many crimes and their punishments are not clearly defined, including unarmed carjacking, attempted robbery, sex acts that fall short of intercourse, harassment and fraud. This gives great autonomy to judges, who are trained in Shariah and not bound by judicial precedent, to define crimes and issue punishments.

Saudi lawyers complain that the lack of a definitive penal code results in vastly different rulings for similar crimes.

Abdulaziz al-Gassim, a Riyadh lawyer, said he had seen rape cases lead to prison terms ranging from two years to 18 years.

“That is a huge difference,” he said.

No aspect of Saudi justice draws more attention than punishments like beheading or amputation. But Saudi legal practitioners say that penalties are on the books to deter crime and that the system limits their use.

In Saudi jurisprudence adultery and apostasy merit death, but executions for either are rare because the law makes it hard to secure convictions. Adultery, for example, can be proved by the testimony of witnesses, but they must be four Muslim men who see the sex act itself — proof nearly impossible to obtain.

And while the Quran says the hands of thieves should be cut off, amputations are rare because of conditions put on the crime and because judges find it distasteful, said Ahmed Juhaimi, a Riyadh lawyer and former prosecutor. Just one amputation for theft was reported in 2014, for example.

A Riyadh judge recalled a case of four thieves who had broken into someone’s living room and stolen the furniture, television and refrigerator. The crime met the conditions for amputation, but the judge allowed them to confess to a lesser charge and sentenced them to two years in prison and 100 lashes each.

“The goal is not to carry out these punishments, but to scare people,” said the judge, speaking on the condition of anonymity because he was not authorized to speak to the news media.

Observers say this discretion guided by deep conservatism often leads to harsh punishments for those seen as threatening the religious nature of the state, like liberals.

Many Saudi lawyers believe the case against Raif Badawi, a liberal blogger who was sentenced to 10 years in prison and 1,000 lashes, was made because he attacked the religious establishment, an act believed to be more destabilizing than adultery, or even murder.

“The judges are very conservative, so they tend to use their autonomy to give very conservative rulings that sometimes embarrass the royal family internationally,” said Stéphane Lacroix, an associate professor at the Sciences Po university in Paris who studies Saudi Arabia.

Mr. Yehiya’s murder of his friend, Mutlaq al-Homeidani, in 2002 shocked the people of Qassim, a province of sand dunes and scattered towns in central Saudi Arabia, where tribal ties are strong and residents are proud of their conservatism.

The two men had often visited each other’s homes, and Mr. Homeidani, an officer in the National Guard, had a wife and six children who lost their breadwinner. Both men were also from prominent tribes, raising the specter of revenge killings if the slain man’s kin did not feel that justice had been served.

“We have nothing but the rule of Shariah,” said the victim’s brother, Faleh al-Homeidani. That meant the public beheading of Mr. Yehiya.

Since Mr. Yehiya’s life was at stake, his case took a path through the courts established for harsh punishments. A three-judge panel convicted him of murder, prompting an appeal to a five-judge panel, which affirmed the ruling and passed it to five judges on the high court.

If a majority of the judges at any level had doubted his guilt, the execution would have been stayed. But none did, so the case went to the royal court for a final review before the king could sign the execution order.

Mr. Yehiya was sentenced to death as retribution, meaning that only the victim’s heirs could pardon him. But he was spared immediate death because every one of the heirs must agree, and the victim’s youngest son was only 3, making him years short of the legal age for consent, which is 15. So Mr. Yehiya went to prison to wait for the boy to grow up before he could agree to have his father’s killer’s head cut off.

Many Muslims believe that saving a life, even that of a murderer, earns one rewards in heaven, so the possibility of a pardon by the victims’ heirs has opened a realm of activism aimed at stopping executions.

After Mr. Yehiya’s conviction, his family campaigned on his behalf, and he became a religious leader in prison, earning the respect of clerics, who took up his cause. Much of the job fell to Sheikh Rashid al-Shalash, a wide-eyed, chatty cleric who heads a committee in Qassim Province that campaigns for pardons.

During an interview, Sheikh Shalash defended beheadings on what he called humanitarian and social grounds. For the condemned, he said, decapitation brings death faster than lethal injection or the electric chair.

And instead of apologizing for its gruesomeness, he said gore was the point because it deterred crime.

“When you see the sword hit someone, don’t you get disgusted?” Sheikh Shalash asked. “There are those who want to kill, but when they see that killing, they stop.”

But for religious reasons, he strives to secure pardons by visiting victims’ families and raising money to pay those who choose to pardon. And since pardons are possible until the sword falls, cases sometimes end with high drama in the public square.

Saudi Arabia executed 88 people in 2014, while 35 people were executed in the United States. Thirty of the Saudi executions were retribution sentences for murder, according to Human Rights Watch. While statistics on pardons are not publicly available, Sheikh Shalash has secured them in 13 out of 17 cases he has taken in recent years. About half of those involved no money, while some families received hundreds of thousands of dollars, he said. In one case, the heirs were paid $1.3 million.

Word of Mr. Yehiya’s case spread as the slain man’s youngest son approached adolescence, and prominent clerics pleaded for mercy from the heirs.

Royal family members visited and sent representatives, and powerful tribal leaders offered blank checks, said Mr. Homeidani, the victim’s brother.

His response never changed: “If it’s about money, the man will die.”

But since any one of the heirs can grant a pardon, Sheikh Shalash investigated all nine of them until he found a hint of sympathy: the victim’s daughter Noura.

Sheikh Shalash asked the principal of Noura’s high school to sound the girl out and arranged to speak with her by phone, he said. She later signed an official pardon, when she was 17. Her family members knew nothing of it and were shocked when they found out, Mr. Homeidani said, but they accepted that it was her right.

“If they kill him, how will it benefit my father?” he said Noura had told him. “God willing, there will be a reward for my father and he’ll go to heaven.”

Sheikh Shalash worried that despite the pardon, the slain man’s family could seek revenge if Mr. Yehiya was released, so his committee gave the family $800,000, with an additional $130,000 going to Noura because of her good deed.

Noura is now a second-year university student; her family declined to make her available for an interview.

Mr. Yehiya, who left prison in 2011 at age 33, also declined to comment. He recently was married and earned a law degree.

On a coffee table in Sheikh Shalash’s living room sits an ornate silver and gold sword with a plaque thanking him for “saving the neck of the young man, Bandar al-Yehiya.”

The two men keep in touch.