SRI LANKA: Lessons from failure to save Rizana Nafeek

FOR IMMEDIATE RELEASE
AHRC-STM-012-2013
January 10, 2013

A Statement from the Asian Human Rights Commission

SRI LANKA: Lessons to be learned from the failure to save Rizana Nafeek

From the day on which Rizana was arrested on a false charge of murder to the day of her execution, seven years elapsed. During this time, if proper diplomatic effort was made with the required seriousness, the life of this young girl could have been saved.

The following are some of the reasons for the failure on the part of the Sri Lankan government to get this girl released.

The absence of a proper chain of command
Under the present Executive Presidential system, there is no effective chain of command between the various layers of officers who are to carry out orders at the demand of the President. A system in which each officer in the chain of command has to take responsibility for their part in carrying out a command and reporting back has ceased to exist. The President acts in an ad hoc manner when things come to his notice, particularly by way of public protest.

Then, he makes some commands and sometimes sends out a delegation. There is no consistent follow-up to ensure that the matter is fully resolved.

In this instance, saving the life of Rizana Nafeek could have been done at the early stages if the Sri Lankan Consulate in Saudi Arabia intervened and provided her the necessary legal assistance. However, until the BBC Sinhala Service brought the case to public notice, about 10 days after the death sentence had been passed, the Sri Lankan mission in Saudi Arabia had not made any intervention. By then, a fatal and wrongfully obtained "confession", from which there is hardly any escape within the flawed Saudi Arabian legal system, had already been used against her.

The second attempt to save her should have been to file an appeal immediately. The government refused to do that and claimed that they had a policy of non-intervention for Sri Lankan workers who are criminally charged outside the country. It was the intervention of the Asian Human Rights Commission and its supporters that made it possible to file an appeal. They raised the money for the appeal. On that basis, she was taken off of the execution list and had about five years before the execution.

During these five years, the only way of saving her life was through effective negotiation with the family of the deceased infant. The government of Sri Lanka failed to achieve this negotiation. All kinds of gestures were done; Ministers travelled up and down from time to time. However, they failed to establish direct contact with the family and to deal with the issue. If they had in fact succeeded in making contact, they could have either made arrangements to pay the blood money or otherwise obtained mercy from the family.

The establishment of this contact would have required consistent efforts on the ground, given the cultural and language problems that exist. It was only through diplomacy on the ground by diplomats based in Saudi Arabia that this could have been done. However, the nature of the foreign ministry work under the present Sri Lankan system of administration means that consistently following up and monitoring does not happen and there is no one to be held responsible for carrying out such a mission.

Whenever there was public demand for action, the Ministers made public statements, even to the parliament, stating that efforts are being made. This was done merely to appease the public discontent.

Most of the time, the ruling these days is done only by way of the state media and giving public statements. No substantive work is done at a practical level. At the heart of the system, there is no logically consistent system that links the leader with his staff.

The absence of an effective communication network between the people and the government
Rizana Nafeek's case was a rare event, in which the entire public of Sri Lanka and millions of people in foreign countries came together in an attempt to save the life of Rizana. None of those who made efforts to save her got any kind of encouragement or a positive response from the government. The government treated the intervention by people for each other's sake as a problem that creates political issues for itself rather than a positive development of a society that cares for each other. The government is completely negative towards the efforts of citizens to help each other. Its campaign against civil society activism and NGOs as a foreign conspiracy against itself has created mentalities within the government which stifle civic initiatives and the people's cooperation to deal with their common problems. At the heart of the ruling philosophy is a deeply hostile attitude towards the initiatives of the people. The government's response to the people's intervention is to merely make public statements or to make some gesture and not to attempt to understand what the people's concerns are and to respond to them in a genuine and serious manner.

The absence of a sense of obligation to protect the citizens and, particularly, an extremely unsympathetic approach to the least advantaged groups in society
Rizana Nafeek, as a seventeen year old girl, volunteered to help her deeply impoverished family from a remote part of Sri Lanka. She went abroad solely for this purpose. She is one of a large army of people, particularly women, who make enormous sacrifices by way of leaving their country to work in harsh circumstances in order to assist their families. The government benefits from these least advantaged persons in the country by way of earning a large portion of the foreign exchange, but they fail to take any effective measures on their behalf. The worst part of it is the extremely inadequate services provided by diplomatic missions in the workers' time of need.

The government considers serious interventions with the governments of the receiving countries on behalf of these least advantaged persons, when required, as an obstacle in their relationship with the governments of receiving countries. An almost slave-like mentality prevails, where Sri Lankan authorities are unwilling to be embarrassed by intervening on behalf of their citizens with the foreign authorities. What is often said is that keeping the relationships is more important for the sake of earning foreign exchange, rather than to insist on the rights of their citizens when the need arises. It was this mentality which prevented an aggressive approach on the part of the Sri Lankan government regarding this young girl, who was wrongly treated throughout by the "justice" system of Saudi Arabia. In similar instances, other governments, including the Indian government, make strenuous and effortful interventions.

Neglect at the core of the system
It was a combination of factors that contributed to the failure on the part of the Sri Lankan government to save the life of this young girl, who was innocent and she was wronged by the country where she went for employment.
These factors arise out of the Executive Presidential system of Sri Lanka, which, by its very nature, is unable to develop and maintain an administrative machinery that is able to serve the interests of the people. Rizana Nafeek is a poor victim of this system. No amount of blaming other factors would serve any purpose that is beneficial to Sri Lankan people so long as the negligence that is a logical product of this disconnected system is addressed.

Rizana Nafeek is also a symbol. A symbol of the vast section of the Sri Lankan people who belong to the least advantaged sections of society. The symbolism that her situation demonstrates is that the government machinery as we have now is completely careless, insensitive and irresponsible when dealing with this segment of our society. Her tragedy is an illustration of the tragedy of all the people who are in her condition.

The present move to undermine the courts in Sri Lanka by proceeding with an impeachment that has been held to be illegal by the superior courts in Sri Lanka can lead to the development of the kind of courts that have no judicial power and therefore can become like the courts of Saudi Arabia. The enormous danger involved in undermining the courts may in the future affect the rights of Sri Lankan citizens, and that is illustrated by the case of Rizana Nafeek.

Saudi Arabia
Rizana Nafeek's case is a clear illustration that the system of "justice" in Saudi Arabia is fatally flawed and does not incorporate the basic notions relating to fair trial that are universally accepted.

In this instance, there was no evidence of murder at all, but the verdict given was for murder. The infant in this case most probably died of some natural cause. As there was no post-mortem, there is no evidence as to what the cause was. According to Rizana, when she tried to bottle feed the child, the milk oozed out of his mouth.

"Asian Tribune contacted a leading Doctor in Sweden and sought clarification from him regarding milk oozing out through the nose and mouth of the infant.

The Swedish Doctor explained that there could have been a "Stop" anywhere between the oral cavity and Esophagus, (Latin – œsophagus).( Swedish -Oesophagoes)

When there is a 'Stop', the milk will not go into the stomach, but will ooze out. This might also be a symptom, that it may be either due congenital or existence of a tumor. Therefore it can be also assumed that when the milk the house maid bottle-fed oozed out, the child might have already passed away.

"http://www.asiantribune.com/news/2011/06/16/rizana-nafeek-sentence-death-without-postmortem-report

Maybe due to desperation, the mother of the child accused Rizana of foul play without any evidence. The seventeen year old girl was handed over to Saudi police, who interrogated her without an interpreter. This was accepted by the Saudi court when the appeal was taken up. The police forced her to sign a confession in a language she did not understand.

This "confession" was the sole evidence on which she was convicted. Despite the appeal court in Saudi coming to an understanding of the manner in which this confession had been obtained, they had no power to set aside the verdict according to their law.

An enormous amount of interventions were made to the Saudi authorities by millions of people throughout the world, asking to grant her pardon on the basis of the unjustness of the verdict given by a primitive legal system. The President of Sri Lanka himself sent an appeal for mercy to the King of Saudi Arabia twice. There were high level interventions, such as by the European Union and by Prince Charles from the United Kingdom. In reply to a letter sent to Queen Elizabeth, Buckingham Palace stated that, as the constitutional monarch of the country, she had referred the letter to the Prime Minister for necessary action. Despite all such interventions from individuals and organisations, no action was taken.

The sole basis for carrying out the verdict was 'our system may be bad, but that is the system we have.'

It is hard to guess how many innocent lives of people like that of Rizana have been devoured by this system.

United Nations human rights mechanisms

Appeals were made to the United Nations High Commissioner for Human Rights and submissions were made to the Human Rights Council. We are aware that the High Commissioner's office did their own inquiries into the matter and intervened with the Saudi authorities. However, the human rights system has not adequately intervened to deal with the absence of fair trial provisions in the Saudi Arabian system of law.

The ineffectiveness of the United Nations human rights mechanisms in dealing with such grossly unjust and inhumane systems, including the use of the death sentence even without a guarantee of fair trial, is worrying as the United Nations is the last resort that victims can turn to.

If powerful countries like Saudi Arabia are not held responsible for gross violations of human rights conducted by their legal system itself, the credibility of the United Nations could be severely undermined.

Some important letters relating to Rizana's case:

SAUDI ARABIA/SRI LANKA: Open letter to President Rajapakse on the need of diplomatic effort to save Rizana Nafeek

June 5, 2012
An Open Letter from the Asian Human Rights Commission to His Excellency, the President of the Socialist Democratic Republic of Sri Lanka

His Excellency the Hon. Mr. Mahinda Rajapaksa
President Socialist Democratic Republic of Sri Lanka
C/- Office of the President

SAUDI ARABIA/SRI LANKA: Open letter to President Rajapakse on the need of diplomatic effort to save Rizana Nafeek
Your Excellency,

Re: The serious threat to the life of Rizana Nafeek

As you are quite well aware Rizana Nafeek, who has been incarcerated in Dawadami Jail since 2007 may be beheaded at any time now. As you government has said repeatedly, the saving of her life depends on the diplomatic effort between your government and the parents of the deceased child.

I am aware that in the past you government has made some effort in that direction. However, they have failed due to the absence of a coordinated attempt to meet directly with the parents of the child. According to reports the last attempt by the government was so ill-coordinated that no meeting with the parents took place at all.

Your government does have the diplomatic capacity to engage an envoy capable of establishing proper contact with the family and ensuring that a fruitful negation takes place.

Your government has the support of the international community in this matter. The parliament of the European Union has expressed its concern quite openly and stated that it is coordinating its efforts with your government. Perhaps an initiative on your part to get the support of those diplomats of other countries in Saudi Arabia itself who are aware of this case and those who have publically expressed concern on this matter would greatly enhance your efforts to secure the release of Rizana Nafeek. You would note that His Royal Highness, Prince Charles himself has expressed his concern over the plight of this girl and promised to pursue the matter with the Saudi government.

I earnestly hope you will personally take up this matter of saving the life of this innocent girl who due to unfortunate circumstances has been falsely charged for a murder that she did not commit when she was only 17-years-of-age. Her parents, the Muslim community in Sri Lanka and the country's women's organisations has for several years now sought your assistance for saving the life of this Sri Lankan girl.

I earnestly hope that this matter will be brought speedily to a happy conclusion. Such a conclusion would certainly make the entire Sri Lankan nation happy as they have been watching this case very closely for a long period of time as has the rest of the world.

Yours sincerely,

Md. Ashrafuzzaman Zaman
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

SAUDI ARABIA/SRI LANKA: The appeal to the Saudi King to pardon Rizana Nafeek is still pending

December 20, 2010

While many rumours circulate about the suspension of the death sentence of Rizana Nafeek, the young Sri Lankan maid condemned to death for the alleged murder of an infant under her care in Saudi Arabia, there has been no official change in her case.

President Rajapaksa has officially requested the Saudi King for a pardon for Rizana and the Sri Lankan government has announced that it is making all diplomatic efforts for the Saudi King and the family of the deceased child to grant her clemency. However Rajapaksa's appeal to King Abdullah was sent only a few days before the King fell ill and had to be taken to the US for immediate medical treatment.

King Abdullah underwent his first surgery soon after he landed in the US on Nov. 22, while the second was conducted on Dec. 2. The Royal Court has said that the surgeries were "completely successful". The King is still in New York where he currently undergoes physiotherapy. Hence, the King's approval to the appeal for a pardon of Rizana is still pending. No decision can be taken by someone second in command, unless he seeks the advice or approval of King.

The Sri Lankan government has earlier stated that Minister Rizad Badurdeen would visit to the family of the deceased child in Riyadh requesting them to pardon Rizana, but this plan has not materialised. It appears to be yet another rumour started by the Sri Lankan government to make the media believe there has been progress in her case, while no evidence is found to prove any change. Neither has a reply to Rajapaksa's appeal been received.

Consequently, Rizana's case has reached a very critical stage. A continuing pressure on King Abdullah and the family of the deceased child to grant her clemency as well as the Sri Lankan government to push for a reply is crucial for her case not to be forgotten in the absence of His Royal Highness, King Abdulah.

On December 10, a campaign under the caption of 'Save Rizana', organized by Janasansadaya and the Asian Human Rights Commission (AHRC) took place in Galle, where more than 1500 people took to the streets. In Kandy, Nawalapitiya and Kundasale, Sri Lankans of all faiths came together to sign petitions for the pardoning of Rizana Nafeek, which have been sent to King Abdullah.

For the benefit of those who have assisted in the appeal and those who are interested in learning more about the case we provide below links to all the Statements, Urgent Appeals and Forwarded Articles published over the past years.

Statements by the AHRC:
STM-242-2010, STM-238-2010, PRL-029-2010, STM-228-2010, STM-226-2010, STM-221-2010, STM-219-2010, STM-214-2010, OLT-011-2010, OLT-012-2010, STM-003-2009, STM-218-2009, STM-258-2008, STM-266-2008, UP-097-2007, PL-044-2007, OL-023-2007, PL-027-2007, PL-025-2007, PL-024-2007, PL-023-2007, AS-284-2007, AS-162-2007, AS-163-2007, AS-165-2007, AS-160-2007, UP-097-2007, UP-093-2007, PL-023-2007

Urgent Appeals by the AHRC:
UAU-041-2010, UA-207-2007, UG-004-2007

Forwarded articles:
FPR-064-2010, FAT-063-2010, FAT-062-2010, FAT-061-2010, FAT-059-2010, FAT-058-2010

SAUDI ARABIA/SRI LANKA: An Appeal to the Muslim World to save the life of Rizana Nafeek, a young innocent Sri Lankan girl facing the death sentence in Saudi Arabia

October 27, 2010
The Asian Human Rights Commission earnestly requests the kind intervention of all persons of the Muslim faith to kindly intervene to save the life of an innocent Sri Lankan girl who went to Saudi Arabia when she was only 17-years-old and almost less than a month after her arrival faced the unfortunate situation when an infant she was bottle feeding choked and due to her inexperience she was unable to save the infant's life. This was unfortunately misunderstood as an intentional act and she was charged in a court and sentenced to death by beheading in 2007. Due to appeal filed on her behalf the execution was suspended and the Supreme Council, after considering the case, referred the matter for further clarification to the original court. Last week the original court reconfirmed the former verdict due to a confession she is supposed to have made at a police station which she retracted in court as it had been obtained under pressure and without any translation.

The young girl who came from a remote part of Sri Lanka due to the dire poverty of her family had not experience of nursing an infant and it is not disputed that the death occurred while she was bottle feeding the infant. There was no evidence at any stage that she had any dispute with the family or had any attention to deliberately harm the child.

She has already been in jail for five years as the incident happened in 2005 for an unfortunate accident. The Saudi Arabian lawyers who have been handling the case on her behalf at the appeal stage has written the following description of the present situation.

"With respect, we inform you that the Supreme Court has upheld the decision of death penalty in the case of our client, Miss Rizana Nafeek. And this occurred after the case has been discussed many times in the appellate bench and Supreme Court in answer to some observations concerning the translator who translated my client's words, considering him as an illegal translator, and after verification of the accused's own confession on which the court decision was based. Now, this case will be sent to the higher authorities and council of ministers for approval or it may be reviewed by the Wali al Amar.

On the other hand, we want to assure you that we are still doing our best in this case and are not sparing any effort, and this is being done in coordination with the Sri Lankan Embassy in Saudi Arabia, with many concerned Saudi Arabian officials hoping to get the parents of the deceased to withdraw their claim. And when blood relatives accept to withdraw their claim, then her punishment will be cancelled. On the other hand, the Wali al Amar has the authority to cancel the punishment, knowing that such decision cannot be executed unless approved by Aali al Amar, which means that we can still contest this decision before the high authorities."

The Asian Human Rights Commission also understands that His Excellency the President of Sri Lanka has written to His Royal Highness the King of Saudi Arabia asking him to grant pardon to this young, inexperienced girl.

We urge your intervention because this is a clear case where the tragedy that has happened has been misunderstood as a crime. Further the girl involved was only 17 years-old at the time and has already served five years in prison relating to this incident. There is all the justification for compassionate intervention on behalf of this young girl to save her life.

On an earlier occasion we made an appeal to all Muslim scholars to consider the facts in this case and to intervene on her behalf. We reproduce below this initial appeal. We hope that in a spirit of good will and compassion that marks the great religion of Islam you will intervene with His Royal Highness the King as well as the family of the infant who unfortunately faced this tragedy to pardon Rizana Nafeek.

Basil Fernando
Director
Policy & Programmes

WORLD: AHRC requests the assistance of Muslim scholars on the following questions
July 20, 2007

A Statement by the Asian Human Rights Commission

WORLD: AHRC requests the assistance of Muslim scholars on the following questions

(This is related to the Asian Human Rights Commission's original appeal – WORLD: An appeal to Muslim scholars throughout the world which may be found at:http://www.ahrchk.net/statements/mainfile.php/2007statements/1111/)

The Asian Human Rights Commission is very much encouraged by the responses to its appeal to the Muslim scholars on July 9, 2007 on the issues relating to Rizana Nafeek's case.

We are also very much encouraged by the many appeals made on her behalf on the basis of compassionate understanding.

As the Asian Human Rights Commission is mostly familiar with the operation of Common and Civil Law systems and as there are many issues that need to be understood about the operation of Islamic laws regarding some fundamental aspects of the case, we request the assistance of the Muslim scholars to kindly consider the following issues we have raised and to inform us about their view on these issues. This will help a number of persons who are studying these matters in relation to this particular case as well as to other cases. These issues are also of general interest.

You may send your responses to the Asian Human Rights Commission which will share them with persons who are studying these issues.

The issues of particular importance to us are as follows:
a. How would the issue of complaints of the use of various methods of causing duress to obtain a confession be examined in a court in Saudi Arabia? Both in Common and Civil Law such a complaint would be separately examined by the judges. If the court was satisfied that the complaint is true it will not attach any importance to the confession. The court will decide the case on the basis of whatever other evidence is available.

b. How would a Saudi Arabian court treat new information which could have a significant influence on understanding the issues relating to the case? For example, if it is revealed that the actual age of the accused is 17 and not 24 as originally claimed, would the court reexamine its verdict taking into consideration whatever implications that arise from this new information.

c. How would a Saudi Arabian court examine the issue of mens rea or the mental element in crime? Both in Common and Civil Law intention to cause the crime is an essential ingredient of the crime itself. There is extremely sophisticated jurisprudence on this issue. I am sure in the centuries of practice of Islamic Law this would have received serious consideration.

d. A further issue of concern is the manner in which guilt is determined and the proportionality of the punishment is measured. Again, in both Common and Civil Law there has been centuries of debate on these matters and some basic principles have become part of the common practice of all courts.

e. What importance would a Saudi Arabian appeals court attach to the absence of legal representation at the stage of the trial? It is now common practice both under Common and Civil Law to consider the issue of legal representation, particularly in cases carrying serious sentences such as the death penalty as a very essential aspect of a fair trial. A Common or Civil Law appeal court may set aside the decision of a trial court if it is found that there had been no legal representation for the accused. More and more the courts are also recognising that even if there had been legal representation, if such representation was inadequate, for example, if the Lawyer was palpably incompetent, that it is a strong ground to allow an appeal. How are such matters considered within the Saudi Arabian legal system?

f. How does a Saudi Arabian trial or appeal court consider the issue of persons who are aliens to the country, who are unfamiliar with the culture, laws and legal practices of the country of residence? In both Common and Civil Law jurisdiction it is now a recognised duty to deal with such disability on the part of aliens and to provide services which enable them to participate in the trial process with full comprehension and dignity. The failures in this regard would be considered as a flaw in the trial giving rise to a reasonable ground for appeal.

These and several other matters of principle are of much interest to us and we would very much like to be able to have a discussion on these matters with the learned professionals.

Your responses are most welcome.

Read this statement online

# # #

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

ENDS

© Scoop Media