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Rizana Nafeek, a 17-year-old girl from a village affected by both civil conflict and the tsunami disaster of December 2004, went to Saudi Arabia for employment as a domestic worker to support her impoverished family. Her initial work assignments were cleaning and other general domestic work. However, she was soon given the task of bottle-feeding her employer's baby alone.
Within 18 days of her arrival, the tragic incident occurred in which the infant choked as Rizana was trying to feed him. Unfortunately, she did not have the experience to deal with this emergency. By the time the family members arrived after hearing her cries for help, the child was either unconscious or dead.
The family blamed their baby's death on the teenager and handed Rizana over to the police who, according to her, ill-treated her and forced her to confess that she had strangled the infant. Since this tragedy, she has been in Dawadami Prison.
During the first hearing at her trial, Rizana was made to repeat the confession the police coerced her to make. However, after being allowed to talk to an interpreter from the Sri Lankan embassy in Riyadh, she made a second statement to the court, narrating her version of what had really happened. On June 16, however, the court sentenced her to death by beheading on the strength of her first testimony in a trial in which she had no legal representation. She was given 30 days to file an appeal, but she had no one to help her make the appeal.
The Sri Lankan Embassy in Saudi Arabia reported the case to the Sri Lankan government and requested the authorization of funds for filing the appeal. The Sri Lankan government failed to respond, and probably the matter would have been forgotten if not for the media, particularly the BBC Sinhala service, which broke the news of her case. Since then, floods of appeals have been made, including appeals from Amnesty International and the Asian Human Rights Commission.
On July 11, the AHRC, on behalf of several people who have taken an interest in the appeal, deposited funds with the law firm of Kateb Fahad al-Shammari to file the appeal in court. The firm of lawyers is now pursuing the matter, and the Sri Lankan Embassy in Saudi Arabia is providing the necessary assistance for the appeal.
The spontaneous reaction of the mass media and human rights organizations around the world has manifested enormous interest in this case. The death sentence against the accused, who was herself a child at the time of the alleged crime, is raising serious legal, as well as moral, issues, not only for Saudi Arabia and Sri Lanka, but for the whole world.
The story of this case brings to mind Victor Hugo's Les Misérables. It was utter poverty that brought this 17-year-old girl to Saudi Arabia for employment. However, within 18 days, she was placed in a situation where the legal systems of the country of domicile and the country of origin were unable to help her in any way. Saudi Arabia provided her with no legal assistance during the trial. The Sri Lankan government maintains the position that it does not have an obligation to provide legal assistance to anyone charged with a crime in any place outside the country. Four Sri Lankans, in fact, were recently executed in Saudi Arabia. They too were not provided with legal assistance during their trials by either the authorities in Saudi Arabia or in Sri Lanka.
What is really being tested here is the merit of a trial without legal representation. However, this issue is regrettably not new. The poor are denied legal assistance most of the time, and there are many instances in which a "fair trial" is the privilege of only those who can pay legal fees for good and reputable lawyers. The poverty that drives a young girl into employment abroad, a girl who should have been attending school, has now created the possibility that she will be beheaded. Such is the way that justice and poverty stand in contradiction to each other.
Saudi Arabia is a rich country. There is no dearth of material resources for it to be unable to provide legal aid to people facing criminal trials, particularly cases where capital punishment may be the sentence. However, the Saudi government asserts it has no obligation to provide legal assistance, even in capital cases.
Similarly, Sri Lanka is not so destitute as to be unable to afford legal costs in such a case. There are approximately 400,000 migrant workers from Sri Lanka working in Saudi Arabia who contribute annually to a considerable portion of the foreign exchange of the country. Despite this fact, the government is unwilling to meet the legal fees of a trial. The pretext seems to be that if costs are paid in one case it will set a precedent in which they will also have to be paid in others.
The purpose of a legal system is to ensure justice. Ensuring justice requires that all parties to a case be given a fair hearing before any punishment is imposed. Imposing punishment without ensuring justice cannot be called humane. It is inhumane systems of justice that create distrust between the rulers and the ruled. The outcome of cases, such as that of Rizana Nafeek, is that it will generate further distrust of the justice system in Saudi Arabia as well as that of Sri Lanka.
The AHRC issued an urgent appeal this week to Muslim scholars throughout the world to reflect on, and intervene in, Rizana's case. Muslim scholars are now faced with a similar situation as the one that Victor Hugo dealt with in Les Misérables. It is an occasion for these scholars to reflect seriously on all the issues of justice and humanity involved in this case. Rizana Nafeek's case will test the justice system in Saudi Arabia, and sharia law in general, for better or for worse.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
