Prominent Advocate Faces Prison for 'Offending the Judiciary'
April 20, 2013
The Saudi government’s prosecution of Abu al-Khair is doing far more to ‘distort’ the reputation of the kingdom than anything he has said or written.
Sarah Leah Whitson, Middle East director

(Beirut) – Saudi authorities should immediately halt the 18-month prosecution of a Jeddah-based human rights lawyer. The charges against Walid Abu al-Khair, which include “offending the judiciary” and “attempting to distort the reputation of the kingdom,” are based solely on the peaceful exercise of his right to freedom of expression, Human Rights Watch said.

Abu al-Khair’s next trial session before Jeddah’s Criminal Court is scheduled for April 21, 2013, during which a judge will review the veracity of certain pieces of evidence submitted by the prosecution. The trial, which opened in September 2011, followed Abu al-Khair’s advocacy on behalf of a client, criticizing the decision of a Saudi judge to jail her for seven months without trial.

“The Saudi government’s prosecution of Abu al-Khair is doing far more to ‘distort’ the reputation of the kingdom than anything he has said or written.” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “If Saudi authorities are truly concerned with the reputation of their judiciary, they should stop prosecuting lawyers who criticize the legal system’s failings.”

Abu al-Khair told Human Rights Watch that he believes that the case against him is in retaliation for statements he made in 2010 criticizing Judge Abdullah al-`Othaim’s handling of the case of Samar Badawi. The judge had ordered her sent to prison for “disobeying” her father. Badawi, who alleged that she suffered many years of physical and psychological abuse by her father, had been attempting to transfer her guardianship from her father to another male relative at the time of her arrest. Despite a ruling in her favor by the Jeddah Public Court in July 2010, authorities did not release her until October 2010, following the intervention of the governor of Makkah province, Khalid bin Faisal Al Saud.

During Abu al-Khair’s first court session in September 2011, Abu al-Khair told Human Rights Watch that Judge Abd al-Majid al-Shuwaihi of Jeddah’s Criminal Court verbally read to him the charges of “offending the judiciary,” “communicating with foreign agencies,” “asking for a constitutional monarchy,” “participating in media [programs] to distort the reputation of the country,” and “incitement of public opinion against the public order of the country.” However, when Abu al-Khair finally received the official charge sheet in August 2012, the charges listed were “offending the judiciary,” “trying to distort the reputation of the kingdom,” “obstructing justice,” and “trying to mislead the course of an investigation.”

Abu al-Khair said that over the last 18 months, the judge has refused to allow him to view much of the evidence against him. This includes two statements Judge al-`Othaim gave to the criminal court that allegedly describe Abu al-Khair’s “unethical” conduct during the Badawi case, as well as several comments about the case that prosecutors allege he posted to online discussion boards.

Abu al-Khair said he did not know the basis for the charges of “obstructing justice” and “misleading the course of an investigation,” but he believes it comes from these sources, which he has not seen.

According to the charge sheet, the charge “trying to distort the reputation of the kingdom” stems from, among other things, giving Human Rights Watch “false” information about the Badawi case, as published in an October 2010 Human Rights Watch news release.

Other evidence cited by the prosecution includes a public statement Abu al-Khair signed in 2011 criticizing the 30-year prison sentences handed down in late 2011 to a group of human rights defenders known as the Jeddah reformers, as well as several media interviews in which he discussed the Badawi case. They include an on-air interview that Abu al-Khair conducted with the pan-Arab satellite TV network Rotana.

Abu al-Khair has attempted to defend himself in court submissions by stating that he never acted unethically in the presence of Judge al-`Othaim, and that the judge did not hold him in contempt of court over the course of the Badawi trial. He has asked the court to accept testimony from Badawi regarding his conduct in the case, but the judge has not granted his request. Abu al-Khair has also stated that Judge al-`Othaim repeatedly threatened him in 2010, stating that he would “make him regret what he was doing.”

Abu al-Khair said that if convicted he could face a lengthy prison sentence, and he expects that authorities will impose a travel ban following the conclusion of the prison sentence. He does not know when the judge will issue his ruling.

Authorities imposed a travel ban on Abu al-Khair in March 2011, seven months before charging him, preventing him from traveling to the United States for a fellowship awarded by the US State Department. Since his trial began in 2011, authorities have suspended his law license, depriving him of his main source of income. Local media sources have also targeted him, referring to him on several occasions as “Abualshar,” or the father of evil, a play on words on his surname.

Saudi criminal procedures, which permit judges to shift roles between adjudicator and prosecutor, demonstrate that in practice there is no presumption of innocence or trial by an independent and impartial court for defendants, Human Rights Watch said. Unless the crime is considered “major” under Saudi law, the trial judge dons the mantles of both judge and prosecutor.

In all criminal cases, the judge can change the charges against the defendant at any time. In the absence of a written penal code, it appears that judges in some cases set out to prove that the defendant has engaged in a certain act, which they then classify as a crime, rather than proving that the defendant has committed the elements of a specific crime as set out in law.

“By shifting around the charges and denying Abu al-Khair’s right to see all the evidence against him, Judge al-Shuwaihiis demonstrating first-hand why Saudi Arabia’s criminal justice system is in urgent need of reform,” Whitson said.

Abu al-Khair is known for his defense of other human rights activists, including Abd al-Rahman al-Shumairi, one of the so-called Jeddah reformers, a group of around a dozen men arrested in February 2007, allegedly for gathering funds for terrorism. The Jeddah Reformers are known for their public stances demanding human rights and political reform in Saudi Arabia.

In June 2009 Abu al-Khair sued the Saudi domestic intelligence agency, the Jihaz al-Mabahith al-‘Amma (the mabahith), for the unlawful detention of al-Shumairi. But the court ruled in 2010 that it had no jurisdiction over the case because the mabahith had by then issued its charges.

In February 2011, Abu al-Khair signed two petitions calling for political reform that were presented to King Abdullah. The first, “Toward a State of Rights and Institutions,” calls for an elected parliament with full legislative powers, a separation of the offices of king and prime minister, and the release of political prisoners, among other demands. The second, “National Declaration for Reform,” calls for elections to decision-making bodies on the local, provincial, and national levels, as well as a review of the country’s Basic Law to include rights protections, true separation of powers, and the release of political prisoners, among other demands.

Abu al-Khair is also the supervisor of the Facebook group “Saudi Human Rights Monitor,” whose website is blocked in the kingdom. In early July 2009, the mabahith had threatened both Abu al-Khair and his father, telling them to discontinue his human rights activities or face arrest and trial.

Abu al-Khair’s trial comes amid a sweeping crackdown on human rights defenders and civil society activists throughout the kingdom. In March 2013, authorities sentenced Mohammed al-Qahtani and Abdullah al-Hamid, co-founders of the Saudi Civil and Political Rights Association (ACPRA), to 10-year and 11-year jail terms respectively on the charges of “destabilizing security by calling for protests,” “spreading false information to outside sources,” “undermining national unity,” and “setting up an illegal human rights organization.”

Authorities in Saudi Arabia regularly pursue charges against human rights activists based on their peaceful exercise of freedom of expression in direct contravention of their human rights obligations. The Arab Charter on Human Rights, which Saudi Arabia has ratified, guarantees freedom of opinion and expression under article 32.

“These prosecutions show that Saudi Arabia has no tolerance for any dissenting opinion calling for human rights and political reform of this absolute monarchy,” Whitson said.