Publication date: 13/11/2017
ALQST has analysed the text of Saudi Arabia’s new Law on Combating Crimes of Terrorism and its Financing, which came out on November 1, 2017, and compared it with the previous terrorism law of December 27, 2013. ALQST’s conclusion from this analysis is that while the new law has expanded from from 41 articles to 96, including a whole new chapter of 27 articles dealing with punishments, it still contains the same flaws as its predecessor and continues to follow the same unacceptably repressive approach.
The Law contains articles that place restrictions on fundamental freedoms and has been framed in general, over-broad and imprecise terms, as a result of which it has no legal standing. To have the status of law, its provisions are required to be precise and specific and not infringe on human rights. The provisions of this Law, however, restrict freedom of expression and criminalise acts unconnected with terrorism. It allows the State Security apparatus and the Public Prosecutor’s office to abuse the Law, and enables them to exploit it by applying it in situations where there is no violence or danger. This frees their hands to go after activists and impose restrictions on peaceful opponents and reformers, and indeed anyone whose views differ from those of the authorities. This has already been happening since the original counter-terrorism law was introduced, from the trial of human rights defender Waleed Abu al-Khair up to the sentencing of human rights defender Abdulaziz al-Shubaily. The powers of the State Security Presidency should not have been expanded at the expense of judicial oversight. Legal procedures should have been respected. The standards and criteria for fair trials should not have been disregarded. The Law should have protected the rights of suspects with regard to search and arrest procedures and the place of detention and their right not to be subjected to mistreatment and torture, and guaranteed their rights to legal counsel, to confront witnesses and to be brought promptly before a judge.
The definition of a terrorist crime given in Chapter 1 of the Law is overly broad and vague, making it easy to construe any peaceful act as a terrorist crime. The definition is legally defective because of the unjustified use of ambiguous terms like “disrupting public order”, “undermining the security of the community and the stability of the State”, “endangering national unity” and “obstructing the basic ruling system”. There is no stipulation that these things must be connected with any act of violence, meaning that peaceful acts may clearly be included.
The phrase “harming the reputation and status of the State” has been deleted from the definition of terrorism, which is one positive amendment to the Law, but unfortunately Article 30, the first in the chapter on punishments, again categorises “portraying the King and Crown Prince in any way that brings religion and justice into disrepute” as a terrorist crime.
Article 3 likewise criminalises a group of actions that may not necessarily be violent, such as “changing the system of rule”, “obstructing the basic ruling system or provisions thereof” and “inducing the State to do or abstain from doing any act”… These cannot be regarded as terrorist acts if they are not characterised by violence. The Law does not specify that a terrorist act involves “the accused using lethal or dangerous material means, or taking hostages”, which the UN Special Rapporteur on human rights and counter-terrorism has said are the defining elements of a terrorist act.
Article 10 also raises concerns for freedom of movement and the guarantee of due process of law, as it grants the State Security Presidency powers to impose travel bans without informing the subjects of such bans of the measures taken against them. Article 15 gives police officers or military personnel authorisation to use force “in accordance with regulations laid down in the Law”, except that no such regulations are mentioned.
Article 19, meanwhile, effectively removes the upper limit on the length of time for which a person may be held in custody. This can be up to 12 months solely on the authority of the Public Prosecutor’s Office, and the Public Prosecutor can then apply to the Specialised Court for an extension with no upper limit specified. This clearly contravenes the standards for fair trial, which require defendants to be brought promptly before a judge.
The Law allows suspects to be held for long periods in solitary confinement, thus providing cover for torture and mistreatment and conflicting with Saudi Arabia’s international obligations, in particular the UN Convention Against Torture, to which the kingdom acceded in 1997.
Article 20 prevents detainees from seeking legal counsel or representation, a blatant and completely unjustifiable violation of their rights that inevitably deprives detainees of any means of challenging the legality of their detention.
Article 27 prevents defendants from confronting witnesses and cross-examining experts, which not only violates an established right of defendants but also contradicts the Supreme Judicial Council’s Letter No. 1361 of October 19, 2017, which said “it is the right of those against whom evidence is given to know the identity of the witness, so that any failure to treat him justly may be made apparent, as laid down in law…”
The Law also applies the death penalty for crimes falling short of capital offences. Articles 40 and 41 state that the court may sentence to death “anyone who kidnaps or detains a person or threatens to do so in execution of a terrorist crime” and likewise “anyone who seizes a means of public transport or threatens to do so in execution of a terrorist crime” whenever any such action is accompanied by the use or declaration of either weapons or explosives. The Law does not clearly and explicitly prohibit torture.
And so ALQST maintains that the Law is flawed and not fit for purpose as a legal instrument, because of its ambiguity and the lack of specificity of several of its articles, as well as omissions in others. Article 15, for example, does not specify the rules governing the use of force when making arrests. The Law also allows the authorities to use it to suppress freedoms and prevent people expressing their views, as has already happened with the previous version of the Law, under which human rights activists have been put on trial. Furthermore, the Law has included in the definition of terrorism peaceful civic actions, such as attempting to dissuade the authorities from taking a decision, or criticising the King and his Crown Prince. Moreover, the Law defines as terrorist acts non-violent actions, and permits the death penalty for crimes that fall short of capital offences.
ALQST calls on the authorities to respect people’s rights and liberties, and endorses the words of the Special Rapporteur on human rights and counter-terrorism when he said that the official Saudi definition of terrorism “does not comply with international human rights standards” and “the Saudi authorities must not use the war on terrorism to suppress freedom of expression”.
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