The Legal Basis for the Charge

Saudi Arabia has no written penal code, code of criminal procedure, or code of judicial procedure, allowing police and judges wide discretion in many cases to determine what activities constitute criminal offenses and what sentences such "crimes" deserve.12 Because there is no constitutional court there is no way for an individual to challenge a sentence without directly or indirectly appealing to the king.13 The king and his appointed Council of Ministers have near absolute authority to interpret written law, while the government-appointed Council of Senior Religious Scholars has final authority over interpretations of the Shari`a. The Council's interpretations give precedence to the Hanbali school of jurisprudence, especially as explicated by the fourteenth century jurist Ibn Taymiya.14 The Hanbali school is considered to be the most conservative of Sunni Islam's four schools of jurisprudence.

All four schools of jurisprudence agree on three main categories of crimes. Boundary crimes (hudud) are those whose punishments and evidentiary and procedural requirements are clearly delimited in the Quran and the collected deeds and sayings of the Prophet Mohammed (al-sunna). Equity crimes (qisas) are those crimes causingphysical injury or death to another person, and their punishments are also specified in the Quran and the Sunna. Discretionary or reform crimes (ta`zir), include crimes whose punishments are not specified in the Quran or Sunna, or which do not meet the evidentiary and procedural requirements of the first two categories.15

Punishments for boundary crimes include execution by beheading or stoning, crucifixion, amputation (of a hand, or a hand and a foot, depending on the crime), banishment, or flogging, and persons convicted of boundary crimes cannot be pardoned. Equity crime punishments are intended to punish the criminal by means equivalent to the harm inflicted on the victim, and thus the judge is allowed discretion in designing a punishment suitable to the specifics of the particular case. In an equity crime the victim or his or her family can choose to accept monetary compensation in lieu of other punishments. Reform crimes allow the greatest judicial discretion in sentencing, including allowing for pardons in cases where the criminal repents of the crime. The only limit on reform punishments is the condition that these sentences be less than those for boundary crimes. Different schools of jurisprudence differ on whether this means that reform punishments must be less than the harshest boundary punishment, less than the least harsh boundary punishment, or less than a parallel boundary punishment.16

Based on this division, the charges against al-Naqshabandi -- "the practice of works of magic and spells and possession of a collection of polytheistic and superstitious books"17 -- would appear to fall into the category of reform crimes described above, where the Quran and the Sunna do not specify a punishment for witchcraft. Indeed, a statement by the Ministry of Interior makes clear that in this case "it was decided he be sentenced to the discretionary punishment of death (qatlihi ta`ziran).18

This criminalization of witchcraft would be highly problematic even without reference to international human rights law. Contradictory definitions and prescribed punishments for witchcraft appear in different classical Islamic texts, and modern Saudi law does not appear to prohibit any specific activities on the grounds that they constitute witchcraft, let alone to mandate the death penalty. Ironically, Hanbali jurist Ibn Taymiya's rulings (fatawa) explicitly permit the use of certain kinds of amulets (hujub or ruqan), and the use of amulets is not unusual in Saudi Arabia or in other parts of the Middle East. Several lawyers and experts in Islamic law contacted by Human Rights Watch expressed great surprise that someone would be executed for witchcraft under Islamic law, raising the question of whether the average Saudi resident is aware that the activities that al-Naqshabandi is accused of might constitute a punishable offense.19 The Saudi minister of justice did not respond to Human Rights Watch's request for clarificationof the terms "witchcraft" and "polytheistic and superstitious books," nor to questions regarding what would constitute sufficient evidence for conviction, or the prescribed punishment for someone convicted of such a charge.

When considered in the light of international human rights law, the invocation of witchcraft in al-Naqshabandi's case highlights the way in which Saudi Arabia's lack of a written penal code both encourages and disguises serious human rights abuses. At a minimum, this criminalization of possession of religious amulets and books is a clear violation of international human rights law's guarantees of freedom of expression and belief.20 Furthermore, if there is no existing law that mandates the death penalty for the activities al-Naqshabandi allegedly engaged in, this case also violates the most basic of due process rights, in that he was punished for an offence that was not a crime at the time it was committed.

The Background to the Charge

There has been speculation that the motive for al-Naqshabandi's prosecution and execution may have been religious persecution for Sufi religious practices. Al-Naqshabandi's family denies that he was a Sufi or that Sufism was an issue in his arrest.21 In his letters to Judge Sulayman al-Samhan of the Greater Court of Riyadh, Al-Naqshabandi makes no reference to Sufi belief or practice, but rather traces the source of the witchcraft charge to an incident in 1987. At that time he had been working for Prince Salman bin Sa`ud bin `Abd al-`Aziz for six years, having started in 1981 as a secretary in the prince's international storage company and three years later as the company's administrative director (mudir idari). Al-Naqshabandi describes the prince as a particularly demanding employer, with a history of abusing his employees, and recounts the prince threatening him with death if a group of debtors defaulted on a loan made by the prince.22 In a "moment of weakness and fear," al-Naqshabandi writes, he followed the advice of a friend and approached a Sudanese shaykh known for writing amulets.23 The shaykh provided him with an amulet "with nothing in it but Quranic verses, and he wrote it in front of me. He said in it: `O God, protect `Abd al-Karim Mara`i. God is the best guardian and He is the most merciful of the merciful.'" Fearing the prince would make good his death threats, al-Naqshabandi also sold his wife's gold jewelry and borrowed from friends so that he was able to pay an installment of 60,000 Saudi Riyal (approximately US $15,950) for one of the debtors. Although Prince Salman acknowledged al-Naqshabandi's payment of the other man's debt, and promised to repay al-Naqshabandi, al-Naqshabandi alleges that the prince never repaid this debt, although he did eventually stop threatening al-Naqshabandi after al-Naqshabandi's son was killed in an auto accident in 1990.24 When the loan crisis was over al-Naqshabandi "threw [the amulet] in the desk drawer" and forgot about it.25 Although an aide to Prince Salman knew al-Naqshabandi had gone to the Sudanese shaykh, no one raised the issue at that time.

In early February 1994, the prince had a dispute with another employee, F.S., a Saudi national who was the office director. In the course of his work, F.S. would sign letters on behalf of Prince Salman, and al-Naqshabandi's testimony recounts how after the dispute the prince decided to use these letters as evidence to have F.S. imprisoned on forgery charges, as al-Naqshabandi says he had done to other employees in the past.26 Prince Salman pressured al-Naqshabandi to give false testimony against F.S., and when al-Naqshabandi attempted to resist the prince became threatening:

And when I refused the prince became intensely angry at me, and threatened to put me in prison for the rest of my life. When I persisted in refusing to give false testimony he put me in front of four witnesses to withdraw all my [contractual] claims against him, which consist of [severance pay and other benefits for] fourteen years and three months service.27

Finally succumbing to the pressure, al-Naqshabandi agreed on February 10, 1994 (28 Sha`ban 1414), to accompany Prince Salman to the police criminal division "on the basis that I would only give the testimony."28 Instead al-Naqshabandi was charged with forgery and held in solitary confinement for four days, until February 13 (2 Ramadan). It was during this four-day period, al-Naqshabandi charges, that the prince and two other employees collected and created incriminating material to place in al-Naqshabandi's office and arranged for his arrest.

12 There are a number of royal decrees and ministry-issued regulations, but they are not usually widely disseminated. Ministry-issued regulations also lack the force and scope of a code, and can be amended without notice. A judicial procedure act was passed by the Council of Ministers and ratified by King Fahd in June 1990, only to be repealed by the king two months later. See Middle East Watch (now Human Rights Watch/Middle East), Empty Reforms: Saudi Arabia's New Basic Laws (New York: Human Rights Watch, May 1992), pp. 21-23. 13 Article 53 of the 1992 Basic Law provides for a Board of Grievances where administrative decisions may be contested, but Article 9 of the regulations governing this board prevents it from hearing cases involving "acts of sovereignty," and thus effectively excludes challenges to rulings on security or constitutional issues. Since its 1982 reorganization the Board reports to the king, and its chairman, who is appointed by the king, holds the rank of minister. See Lerrick and Mian, Saudi Business and Labor Law, pp. 238-243. 14 The government-sanctioned preeminence of the Wahabbist variant of Hanbali jurisprudence has led to severe restrictions on religious practices deemed to be "deviant," whether by Muslims or non-Muslims. Non-Muslims are forbidden to practice their religion while in Saudi Arabia, and the country's Shi`a population has been a favorite target for abuse. Religious rulings issued by the Council of Senior Religious Scholars have referred to the Shi`a as polytheists and apostates, a crime that under the Shari`a is punishable by death. See Amnesty International, Saudi Arabia: Religious Intolerance: The Arrest, Detention and Torture of Christian Worshipers and Shi`a Muslims (London: Amnesty International, September 1993). The text of one such fatwa appears in Committee for the Defense of Human Rights in the Arabian Peninsula, Al-taqrir al-sanawi lilajnat al-difa` `an huquq al-insan fi al-jazira al-`arabiyya haula intihak huquq al-muslimin al-shi`a 1417 (The Annual Report on Abuses of the Rights of the Shia Muslims: 1417 H., 1996-1997 C.E.), p. 30/3. 15 For a detailed discussion of all three categories of crimes and the associated punishments, see Hilaly `Abdullah Ahmad, Usul al-tashri` al-jina'i al-islami ma` ishara ila tatbiqihi fi al-mamlaka al-`arabiyya al-sa`udiyya (The Principles of Islamic Criminal Legislation with Reference to its Application in the Kingdom of Saudi Arabia) (Cairo: Dar al-nahda al-`arabiyya, 1995). 16 Ibid., pp. 297-301. 17 "Qatl `sahir wa musha`with' suri fi al-riyadh: Wizarat al-dakhiliyya tuhaththir mujaddadan: al-`iqab al-shara`i al-sarim bila hawada liman tasawwal lahu nafsuhu al-`abath biamn al-balad aw al-adrar bilmujtama`" (The Killing of a `Sorcerer and Magician' in Riyadh: The Ministry of Interior Again Warns: The Severe Shari`a Punishment without Leniency to He Who Lets Himself be Seduced [by the Devil] to Play with the Security of the State or Damages to Society) Al-jazira (Saudi Arabia) December 14, 1996. 18 Ibid. 19 Several scholars of Islamic law denied that witchcraft existed as a punishable offense under Islamic law, while others argued that it was a crime, but not one punishable by death. No one contacted by Human Rights Watch had ever heard of anyone other than al-Naqshabandi being executed for witchcraft in modern times. If Islamic legal scholars familiar with Saudi Arabian laws are unable to give a precise definition of activities constituting witchcraft and the specified punishment, it seems highly unlikely that the average Saudi resident could do so. 20 This would not be the only Saudi law restricting freedom of expression and belief. In addition to the previously cited restrictions on religious practices deemed deviant by Saudi religious authorities, Saudi law includes such vaguely-worded crimes as insulting the person of the king (sabb that al-malikiya). The latter is often used to punish foreign workers who have not committed any specific crime, but have somehow managed to annoy a well-connected individual or employer. Insulting the person of the king was one of the charges used to detain Ahmad al-Naqshabandi after his brother's execution. 21 Human Rights Watch/Middle East telephone interview, a close relative, name withheld, Syria, June 25, 1997. 22 Letter to Judge Sulayman al-Samhan, Greater Court of Riyadh, (hereinafter "Submission 2"), p. 3. 23 The title "shaykh" has several meanings. In its most common usage it can denote an elder; a tribal leader; a pious man; a man with advanced religious training; or the master of a Sufi religious order. Its usage here appears to refer to someone with formal or informal advanced religious training, possibly a Sufi. 24 Submission 2, p. 3. 25 Letter to Judge Sulayman al-Samhan, Greater Court of Riyadh, (hereinafter "Submission 3"), p. 2. 26 The choice of this particular charge may be related to a clause in Article 83 of the Saudi Labor Regulations, which lists "hav[ing] committed an act affecting honesty or honor" as one of nine offenses that can be used to justify immediate termination of an employment contract without notice and without liability for payment of severance pay. Quoted in Lerrick and Mian, Saudi Business and Labor Law, p. 295. 27 Submission 2, p. 3. Elsewhere al-Naqshabandi argues that the prince owes him a minimum of 224,875 Riyal (US $59,816), consisting of 52,000 Riyal (US $13,863) which he says was the difference between his contracted salary and the amount he was actually paid after the prince unilaterally lowered salaries; 20,250 Riyal (US $5,398)for three months back wages that the prince had not paid at the time of al-Naqshabandi's arrest; 87,625 Riyal (US $23,360) in severance pay for fourteen years of continuous service; 5,000 Riyal (US $1,333) for the value of plane tickets home to Syria as specified in his contract, and the 60,000 Riyal (US $15,950) loan installment that al-Naqshabandi paid in lieu of the prince's debtor. Al-Naqshabandi also noted that despite poor treatment by Prince Salman, "I wasn't late a single day nor did I have a single vacation in fourteen years, not a single day, in fact the opposite, I even worked during the holidays, and I was on call all day and all night." Submission 3, pp. 3-4. See Lerrick and Mian, Saudi Business and Labor Law, pp. 293-94 for a discussion of the formula for determining severance pay. 28 Submission 2, p. 4. It isn't clear from al-Naqshabandi's written account whether he intended to give false testimony against his colleague. Had al-Naqshabandi had access to a lawyer his lawyer would most certainly have advised him to clarify this point, given that by leaving it in doubt he leaves the credibility of his testimony in his own case open to doubt.