Race, Poverty, and Justice
Nabeel Rajab- Bahrain Center for Human Right & CARAM Asia
World Congress against the Death Penalty, Geneva – 24 February, 2010
Introduction
Race, Poverty, and Justice
Nabeel Rajab- Bahrain Center for Human Right & CARAM Asia
World Congress against the Death Penalty, Geneva – 24 February, 2010
Introduction
The Gulf is a major destination for migrant workers, particularly those from Southern Asia and South East Asia. Gulf countries are also widely known for the consistent and endemic violations perpetrated against migrant workers. When it comes to the death penalty, the number of migrants who are killed by judicial execution is grossly disproportional to the size of their populations.
Discrimination on the basis of religion, nationality and ethnicity are common human rights violations in most Gulf States. Migrants from Bangladesh, India, Sri Lanka, Nepal, Pakistan, the Philippines, Indonesia, Sudan, Ethiopia, and numerous other countries travel to the Gulf States to work mainly in the domestic work or low-skilled labor sectors. These workers routinely experience restrictions on their freedom of expression, religion and religious practice, access to justice, access to healthcare, the withholding of passports, threats, physical, verbal or sexual abuse, non-payment of wages, as well as unsafe and unhygienic living and working conditions.
In countries with such systemic abuses and violations, migrant workers form an exceptionally vulnerable community. The legal system itself is skewed against migrants because of the restriction imposed by the kafala sponsorship system. In addition to this, low-income migrant workers have little or no access to legal aid, and in the vast majority of cases cannot afford to pay for legal representation or services. The legal systems in the Gulf can be described as “impossible to navigate” for non-Arabic speakers. Local laws are applied to migrants (including the government’s interpretation of Sharia law in Saudi Arabia) yet there are no provisions to ensure that migrants can understand the legal system or laws – even in cases where defendants could be given the death sentence.
Built upon a system of bias towards nationals, the legal systems in the Gulf countries reviewed in this report are deeply flawed in terms of fair and independent trials, presumption of innocence, and the right to question witnesses. In addition to legal and procedural failings, there is also a problem of corruption, to use of personal connections to ensure favorable judgments by nationals, and questionable judgments issued in secret trials.
The Kingdom of Saudi Arabia is the largest country in the Gulf, It has an estimated population of 28 million, of which 5.6 million are migrants. Migrant workers represent almost 35% of Saudi Arabia’s workforce, and make up approximately 88% of the workforce in the private sector. There are approximately1.5 million foreign domestic workers in the country, most of whom are women. Saudi maintains a closed door policy towards human rights investigators. Requests to visit the country by five different UN human rights special rapporteurs or working groups dating from 2005 onwards remained unanswered at year’s end.
The Saudi Legal and Social Quandary
1. Legal & Procedural Problems
The Saudi legal system is based on the government’s interpretation of Shari’a (Islamic) law. Their jurisdiction extends to non Muslims for crimes committed in the country. In addition to this, according to the Criminal Procedure Law defendants do not enjoy a presumption of innocence.
Saudi law provides persons under investigation the right to a lawyer to present defense before a criminal court. However, an attorney is not provided at public expense if the defendant cannot afford to hire one. The law also fails to protect the defendant’s right to consult with the lawyer upon arrest, and defendants do not have the right to question witnesses brought before them. In general, witnesses are questioned before the initiation of a trial by the investigative authorities, and not by the defendant or their legal representative before court.
Court proceedings in capital punishment cases are closed, making it impossible to determine whether the accused were allowed to present a defense or were denied basic due process. Many capital punishment cases proceed from trial to verdict and sentencing with no public notice, unless the verdict is reported in the media.
2. Lapses in Practice & implementation of Law
It is widely accepted that the tribal, social, economic, and religious status of local employers can influence the judgment made in a court case. Government officials and institutions tend to favor local employers, and show a strong bias towards members of the ruling family, or well-connected persons. The judicial system is known to be unresponsive to requests made by migrant workers .
Victims of abused or “runaway” migrant female domestic workers (often escaping from abusive sponsors) are treated as criminals by law enforcement institutions; they are often punished without being offered any protection from or compensation for the situation from which they have escaped. Female migrant workers arrested on charges of prostitution are not asked by police if they were forced into prostitution or not, but instead subjected to hard physical punishment under Saudi law. In a number of cases female migrant workers who have been raped by their local sponsors have been imprisoned or sentenced to a physical punishment.
Saudi officials have in the past made claims stating that legal services are provided to migrant workers who have suffered abuse. In reality the lack of translation services as well as lengthy and costly delays in court proceedings has often discouraged victims from seeking legal redress .
From the highest institutions to the lowest officials, the legal systems of Saudi Arabia and most of Gulf States do not encourage victims to pursue investigations against their local abusers. In reality law can be used against migrant workers, but it cannot be used by them.
There are regular impositions of punishments for legal violations committed by migrant workers. In contrast, we do not see that the legal system providing protections or justice for migrant workers seeking redress for violations committed against them.
3. Questionable Judgments
Another important issue is the reliability of judgments passed in judicial systems where torture and maltreatment have been identified as part of the interrogation process. In 2007 the Saudi National Society for Human Rights (a government-funded human rights organization) reported allegations of torture during the investigation process. A 2010 report issued by Human Rights Watch found that torture is again part of investigative proceedings in Bahrain. Additionally, in Saudi Arabia prisoners are routinely sentenced in secret and unfair trials.
Defendants, particularly poor migrant workers from countries in Africa and Asia, often cannot afford or access a defense lawyers, and are unable to follow court proceedings in Arabic. Because of these of seriously flawed and unfair judicial practices, rulings made are unreliable.
4. Lack of Extra-Judicial Means of Support and Assistance
Migrant Workers have little, if any access to support when it comes to navigating the legal system of their host countries. Government representatives of poor sending countries tend to show a reluctance to raise the issue of human rights violations faced by their own citizens in the wealthy Gulf countries. Either out of fear of angering host governments, or risk of jeopardizing the flow of remittances. Embassy and consular officials do not provide information, legal, translation, or advocacy services to the scope of which they are needed.
“… right to Life, Liberty, and Security of Person”
Courts in Saudi Arabia continue to impose physical punishment, including amputation of hands and feet, and flogging for “sexual deviance”, and drunkenness. Capital punishment is also practiced, and executions are carried out in public. According to the Saudi interpretation and application of Islamic law, crimes of murder, rape, drug trafficking and armed robbery are punished with beheading.
Saudi Arabia is also one of the few remaining countries to execute people for crimes committed as legal minors (under the age of 18), in breach of international law. In June 2007 Sri Lankan domestic worker Rizana Nafeek faced execution after being found guilty of murder, in a case that highlights critical flaws in Saudi’s system of justice. Nafeek had no legal representation throughout the duration of the case. Because she was allegedly provided with false documentation in Sri Lanka, it is believed that she may have be 17 at the time of sentencing. An appeals hearing revealed that an interpreter used during the case may not have been qualified. Saudi Arabia remain one of the few countries with a high rate of executions for women
1. Disproportional Number of Death Sentences
This report has already outlined the way in which racial discrimination pervades the various levels in the decision-making process taken place prior to the death penalty. Sentencing and execution show further evidence of a racial bias in implementation of the death penalty.
In 2005 191 executions took place in Saudi Arabia. In 2006 there were 38, and in 2007 there were 153, and in 2008 there were 102 , with an average rate of more than two executions every week according to Amnesty International. Almost half of those executed in Saudi were migrant workers from poor countries. Amnesty International claims today, with a Saudi citizen up to eight times more likely to escape execution through a “blood money”. Migrants, mostly Asians and Africans, who face capital trials in the kingdom, are frequently unable to understand court proceedings in Arabic, are often not represented by a lawyer, and are routinely held for long periods in harsh conditions and forced into false confessions. The number of migrant workers from poor sending countries killed under the death penalty in Saudi Arabia is disproportionally high in relation to the total number of migrants in the country. The death penalty is applied discriminately against poor foreign workers. The Saudi authorities do not provide statistics on the death penalty but Amnesty recorded at least 1,695 executions between 1985 and May 2008. Of these, 830 were foreign nationals and 809 Saudis (with the nationality of 56 unknown). Foreigners make up about a quarter of the 28 million populations.
In the last five years it is believed that six people have been sentenced to death in Bahrain, all of them migrant workers from poor countries. In December 2006 three Bangladeshi nationals were executed. On 16 November 2009, the Court of Cassation in Bahrain upheld the death penalty against Jassim Abdulmanan, a male Bangladeshi national. He is facing execution by firing squad at any time. Prior to this, for many years Bahrain had observed a de facto suspension on the death penalty. With three executions in 2006 and the pending sentence for Jassim Abdulmanan, Bahrain appears to be moving against the international trend away from capital punishment.
Human rights groups have raised fears that the death penalty in Bahrain is discriminately used against migrant workers. In October 2009 a Bahraini national was given a life sentence for the attempted rape and murder of an Ethiopian domestic worker in his employ. This case raises serious questions about racial bias in judgments.
Such judgments can be seen as part of a wider practice of discrimination, exemplified by the Bahraini Parliament’s 2008 attempt to ban all Bangladeshi workers following an incident in which a Bangladeshi mechanic killed a Bahraini client in a dispute over payment. The Bahraini government temporarily froze visa issues to all Bangladeshi citizens in the wake of this incident. Both Saudi Arabia and Kuwait, in 2008 and 1999 respectively, also introduced bans on issuing work visas to Bangladeshi nationals, although Kuwait later retracted the ban. In both cases these bans were implemented based on similar prejudices – an entire people were criminalized based on the actions of certain individuals.
Such measures at the national level further perpetuate discriminatory conceptions and practices which play into the judicial process’ bias against migrant workers.
2. Poverty and the Death Penalty
Economic status is also an important factor in the likelihood of being sentenced to death, and its effect is the increased vulnerability of the vast majority of migrants, who work in low-paid jobs in the Gulf. Firstly, migrant workers have little or no access to influential figures such as Government authorities or tribal leaders, who could intercede in legal proceedings. Arbitration is an important judicial and social mechanism in Gulf States, and without a ‘wasta’ (connection), migrants have even less options when it comes to seeing justice.
Another important factor is migrant workers’ lack of access to money, which could be provided as ‘deya’ (blood money, agreed on by relatives of the deceased). Both access to influential figures and access to finances are crucial factors in securing clemency from execution, and the overwhelming majority of migrant workers have neither.
3. Current Status on Death Sentences
In both Bahrain and Saudi Arabia, final judgment on the death penalty comes in the form of ratification from the head of state. No death sentence is executed without ratification by the Bahraini King. The unfortunate trends detailed above show a lack of political will to introduce a suspension on the death penalty.
In December last year the Bahraini government abstained in the vote for a United Nations resolution calling for a moratorium on executions globally. The resolution which was passed by a vote of 106 in favor to 46 against, with 34 abstentions.
Conclusion
As this report shows, the weight of the executioner’s sword falls heaviest on those who are most vulnerable in Gulf societies. Legal and procedural problems, lapses in implementation of law, judgments of questionable validity, lack of access to support and assistance all contribute to the highly disproportional number of migrant’s killed using the death penalty by these states. Justice, as we have seen, is not blind – it knows nationality, race, language and money, and the harshest penalties in are reserved for those among the least able to defend themselves.
Recommendations
To the governments of Bahrain and Saudi Arabia;
• To declare a suspension on judicial executions.
• To uphold and ensure the implementation of the highest standards of judicial practice – including open, free and fair trials
• To ensure access to legal representation for all defendants facing the death penalty
• To provide access to information and translation services for migrants at all relevant legal and governmental institutions.
To representatives of sending countries;
• Sending countries should stop prioritizing remittances over the life, health, happiness, rights and safety of their nationals.
• To establish consular or embassy level presence in Gulf states
• To assign a legal envoy to deal with labour issues
• To provide legal information, assistance and representation to nationals who cannot afford it themselves
• To provide information to all migrants about their rights and the laws of the receiving country in own language
To Local NGO’s, social, and charitable organizations;
• To provide assistance to embassy staff in producing and disseminating informational material for migrant workers
• To provide assistance and follow-up support work to migrant workers involved in legal disputes
To media organizations in receiving countries;
• To cease media campaigns inciting racial hatred against migrant workers
• To provide consistent, fair and accurate coverage of migrant issues