What Laws Are For?

Although I have previously complained about the vagueness of some articles in Saudi Arabia’s newly implemented E-Crimes Act, my conviction was that having a flawed law that could be rectified later is better that not having a law at all. Today, Arab News runs this story about a man from my hometown of Ahsa who has been prosecuted according to the new law.

A court in the Eastern Province city fined the man SR50,000, sentenced him to 22 months in jail and 200 lashes for breaking into an e-mail account of a young woman and getting personal photos of her. The man was found guilty of blackmailing the woman by threatening to disseminate her pictures online and to her parents if she did not agree to have an affair with him.

However, there is something here that I don’t understand. I have read the E-Crimes Act and I can’t find any mention of lashing as a punishment for committing any of the violations there. Under the new law, people found guilty of using computers to commit crimes could face up to 10 years in prison and fines of up to SR5 million, but lashing is not one of the punishments the law stated for these crimes.

How come that this man is being sentenced to a punishment that can’t be found in the law? How can this happen? Are the judges free to add any punishment they think is appropriate for a crime even if it is not part of the law on which the accused is being prosecuted?

Advertisements

25 thoughts on “What Laws Are For?

  1. You could not understand? Seems quite obvious to me. Let’s see what he has done if he was truly guilty:

    1. Committed an E-Crime.
    2. Blackmailed.
    3. Wanted forced sexual activity of some kind.

    Now the law on E-Crimes will be applied in addition to the laws on blackmail. And in the case of the forced sexual activity threat, that can have a wide range of implications.

    So it’s not a one to one mapping of a crime to a punishment. It requires a more complex decision making procedure. If you were to build a law system that specifically detailed every little possible combination you’d have 1000’s of books to write (and possibly continue writing).

  2. I would say he was convicted of multiple crimes not just the ecrime. hence the lashes. Seems dude was bothering her for two years..can we say obsessed? I would add stalker to the list

  3. I’m not discussing if he deserves further punishment or not. I’m just wondering about the basis of the punishment. I think that cases like this one indicate the need for codified laws.

  4. The E-Crimes act refers in its preamble to Shari’a law as superior and explanatory to the act, so does all the codes that we have thus far.
    Under the pressure of the UN commission on Human Rights and various NGOs, the government is moving towards codifying the laws of Saudi Arabia to conform with the rule of law, and to avoid as possible the ambiguous “Shari’a Reservations”.
    One would think the Criminal Code would be of primary importance to codification, but the problem then is that you will have to state directly capital punishments by beheading and corporal punishments by lashing, which are at the least controversial issues internationally and would fuel the claims of cruel and unusual punishment/treatment.

  5. I would commend the explanation of “The Z Theory.”

    KSA jurisprudence is based on the premise that Shari’a (as interpreted by the ulemaa) is governmental law.

    As such, any KSA law is subject to revision, annulment, revision or other modification by the judge if in his view Shari’a requires it.

    In a fundamental sense, none of the Kingdom’s laws can be relied upon, because all can be discarded at the direction of the ulemaa and at any time.

  6. If someone picked your pocket, they’d get sentenced for stealing.
    If someone forcibly took your wallet, they’d get sentenced for stealing.
    If someone mugged you. they’d get sentenced for stealing
    Now, does that seem fair? Multiple crimes demand multiple punishments even if they are committed simultaneously.

  7. The judges just wouldn’t get any satisfaction out of their jobs if they can’t order people to get lashed. And the audience needs some entertainment too ofcourse.
    With all these restrictions and segregation and no freedom of speech, one needs some sort of halal form of entertainment.

  8. The real dilemma for me that I hardly tried to understand was how could someone be sentenced in a delinquency to a number of lashes more than the number of lashes that the Prophet had ordered?

    The Prophet said:

    “لا جلد فوق عشرة أسواط فيما دون حد من حدود الله”

    Meaning, if the offense was not a known ‘Haad (i.e. drinking alcohol, committing adultery..etc) the number of lashes must not exceed what so ever ten lashes.

    Even if we assumed that that fella deserved to be lashed, it mustn’t have had – according to the Hadith – exceeded 10 lashes!

  9. If I may detour from the subject, I personally believe that in order for Shari’a to truly be a law for all times and places it must be read and understood under the historical context that it was derived from.
    14 centuries ago, at the time of prehistoric tribal quasi nations, lashing and beheading were the most merciful method of similar punishments such as burning alive or eye gouging. This gradual change in human interactions to achieve peace and prosperity was (and still) the primary reason humans hailed its teachings.
    Through abiding by the basic teachings of mercy and equality, slavery was abolished although it existed throughout ancient Islam, but also the Quran moved gradually towards abolishing it through mandating freeing of slaves for various minor infractions such as missing Ramadan. This is an example of a logical development in Sharia that makes it truly viable.
    Public lashing and beheading, at this day and age, does not secure human dignity and introduce Islam as a cruel and grotesque body of teachings unable to develop and adapt thus it has no room in the modern era.

  10. Again, let me say that I would commend the words of the Z Theory.

    When one reads that Iranian Islamic judges ordered a man blinded, or other similar grotesque inflictions are imposed in the name of the religion of Rasulullah, all believers should be morally outraged.

    While it is too late for the ulemaa in the Kingdom to reform themselves and develop an enlightened theology truly in keeping with religion, such a reformative theology should be developed.

    One that does not water down religion, but rather actually strengthens religion, by discarding antiquated notions and ways of thinking.

    Of course, such a theology will also require religious leaders who embrace a religious system that incorporates curbs on their kleptocratic urges.

  11. the ‘z- therory’ just contradicted himself, are you saying that we shouldn’t punish anyone for adultery, “hey look everyone else is doing it and there are no laws against that” if that’s the modern approach according to you, then your thinking is flawed.
    I have no problem with someone getting lashed for crimes such as this, because as you say the Sharia is a law for all times. I don’t see anything wrong with beheading either , for crimes such as murder, what’s the alternative put them through an electric chair. As long as the punishment are implemented justly accordingly to the sharia then thats’ ok, if the punishments go beyond the sharia then that’s haraam.

  12. My dear Kman,
    Thank you for your input; and here is my rebuttal:
    No one is contesting applying punishment on people who are found guilty under Shari’a (adultery included if proven). The argument here is on the method of applying such punishments in relevance to historical and sociological circumstances.
    One of the main doctrines in fiqh that basic principles of Islam trump detailed applications. Principals of justice, equality and humane treatment oversee all applications of Shari’a in differing eras, and through this doctrine that Shari’a is able to develop. a well known example of this is when Omar suspended the theft punishment (while it is a hodod crime) because applying it at that time of poverty does not conform with the principals of justice.
    I do believe in capital punishments ONLY in hodod which requires it, with a narrow reading to what constitutes an applicable crime. The debate here is in the method of applying this punishment. If you see a live beheading (as I did) you will know that not every time the swordsman hits his target, sometimes it takes several blows to achieve the goal (e.g. Juhaiman Al Otaibi) and by doing so you have exceeded the just punishment affirmed by Shari’a through ‘alnafs bilnafs’.
    Several methods of execution has been debated including the noose, dichotomy, garroting, shooting, electrocuting and several others, but scientifically the lethal injection proved to be more humane.
    As for lashing, in Shari’a it is not intended to inflict pain as much as to make an example ‘rad3 o zajir’, hence the rules in lashing that the lasher should not lift his arms over the armpit and should spread the lashes swiftly on the back from under the shoulders to above the knee. Also, lashings were made in public to serve the primary ‘rad3 o zajir’ purpose. In the modern era, this purpose is definitely served through imprisonment and defamation for example.
    Finally, I wonder where exactly did I contradict myself !?.

  13. In an interview with former President Nixon conducted by David Frost in 1977, Nixon said “Well, when the president does it that means that it is not illegal.” The interview was after he resigned office after the Watergate scandal, and is by no means the popular view in the U.S. However, it is the popular (possibly the only view) in Saudi Arabia.

    What bothers me most about the laws in Saudi Arabia is that the mere creation of a law makes the law unquestionably valid; in other words, the law is valid because it exists. There is no standard to measure it against, such as a constitution. The only standard I can think of is the obvious one, Islamic law, which is a set of non-codified principles subject to the whims of the Islamic intelligentsia in our country. The law needs more than one caretaker (i.e. separation of powers) to ensure fairness and to prevent abuses of power, and one prerequisite for the separation of powers is the codification of the law; it needs to live outside the mind of the Islamic Intelligentsia. For example, like you, I was very bothered by article six in the E-Crimes Act. I thought, then what? what can I do? What standard, or point of reference, could I possibly use to challenge it or even measure it against? An even more disconcerting question is what channel can I use to challenge it? You tell me, for I haven’t the slightest idea. The only option, which is a doomed one, is to wrangle with the Islamic Intelligentsia to try to prove that this law violates the non-codified principles of Islamic law, which they happen to be the custodians of.

    Before I sign-off, I’d just like to say that I enjoy reading your insightful blog posts, Ahmed.

  14. Nathan Brown, a scholar of Middle Eastern Islamic law, believes that three orientations towards the purpose of law have affected and will continue to affect the development of the legal system in Islamic states. Understanding these orientations will help understand the legal system in Saudi Arabia.

    The first of these orientations towards law is that changes are imposed by the outside; such as the Ottoman Empire influence over Hijaz, or the British influence in the past, or the U.S. influence nowadays (e.g. Human Rights Laws.)

    The second is that legal reforms emerge as an effort to restrict authority and ensure predictability; such as the recent legal reforms in Saudi Arabia.

    The third is that the law is viewed as a way to centralize power and authority in a dominating group or class; such as with the current regime.

    It is clear that Saudi Arabia is not interested in blindly implementing Islamic law because Islamic law is not in the interest of the authoritarian state. Codification only makes this worse because the law no longer lives in the mind of an Islamic scholar, but rather is a living breathing thing that requires much more effort to shake off when it does not serve the interests of the authoritarian regime.

    In other words, if codification is to happen, it will not happen unless it is as a result of external influence, or unless it gives more powers to an already powerful government; let’s not hold or breath.

  15. Lately I noticed that what is considered Haram is now allowed for a selected few and no action is being done.

    For example, go to Expatriates.com look at Jeddah and you will see people selling sex and alcohol.

    One factory of alcohol they publicly advertise in SKAB Malik rd yet no police can do anything about it. Maybe a big general owns it?

    Funny huh?

Comments are closed.