Saudi judge ignores Quranic rights in harsh decision over the ‘Girl of Qatif’
By Khalid Chraibi
Arablife.org, Tuesday, 22 January 2008

In a memorable scene in Ingmar Bergman’s movie Wild Strawberries, Isak, the central character, dreams that he is standing in court, waiting to be sentenced. But he has no clue as to the charges against him. When the judge declares him guilty, he asks, bewildered: “Guilty of what?” The judge replies flatly: “You are guilty of guilt”. “Is that serious?” asks Isak. “Unfortunately,” replies the judge.

The verdict in the case of the ‘Girl of Qatif’, as the incident has become known worldwide, is as bewildering to most people as the judge’s verdict was to Isak. How can a young bride of 18 who has been subjected to the harrowing experience of being blackmailed by a former ‘telephone boyfriend’, then gang-raped 14 times in a row by seven unknown assailants, be further brought to trial for the offence of khalwa and condemned to 90 lashes? How does one justify raising the punishment to 200 lashes and 6 months in jail when she appealed the first sentence?

The case had all the necessary ingredients to become an instant cause célèbre, when word of it reached the global news agencies. It received very large coverage in the media, with the verdict being criticized by commentators, politicians and citizens in all walks of life, within the region and in far away countries.

Amnesty International protested against the flogging verdict (which was also applicable to the men involved in the case), observing that “the use of corporal punishment constitutes cruel, inhuman and degrading punishment.” It added that “the criminalisation of khalwa is inconsistent with international human rights standards, in particular, an individual’s right to privacy.” The sentence against the ‘Girl of Qatif’ and the boy who sat with her in the car “should therefore be declared null and void”.

The Saudi authorities were perplexed and incensed by such criticisms. As far as they were concerned, the court sentence against the ‘Girl of Qatif’ was made in application of the Shari’ah as it has traditionally been interpreted in the country, and raised no particular or unusual issues.

The Saudi Ministry of Justice observed, in a statement, that the girl went out to meet her male acquaintance “without a mahram, a legal guardian, and exchanged with him forbidden affairs through the illegal khalwa. She knows that khalwa with an unrelated man is forbidden by Shari’ah and by doing this she has broken the sacred matrimonial contract.” Her punishment is thus perfectly justified in Islamic law.

But, the ‘Girl of Qatif’, her husband and her lawyer questioned several points in the Ministry’s statement, as well as the legal grounds on which the sentence was based.

According to them, the girl had not put herself in this situation of khalwa out of her own free will. She and the boy who was raped with her had been chatting regularly on the phone for two years, since they were both 16, but without meeting. Somehow, the boy obtained her picture. When she got married at age 18, she wanted her picture back, and the boy agreed to do that, if she met him in his car, in a public mall. After returning her picture to her, the boy volunteered to drive her home but, on their way, they were overtaken by another car, which compelled them to stop. They were kidnapped and taken to a deserted place, where the boy and the girl were separately subjected to a gang-rape.

The girl’s husband insisted that there was no adultery involved in this case, nor was there any sexually-oriented activity between the couple in the car. The meeting only took place to allow the girl to retrieve her picture which, moreover, was harmless and did not show her in any compromising position. In his opinion, it had been bad judgment on the part of the girl to go to this meeting, but there was nothing more to it.

The lawyer of the ‘Girl of Qatif’, Abdul Rahman al-Lahem, argued, for his part, that there was no khalwa between the girl and the ex-boyfriend, in the legal sense, “because they met in a public place”. Moreover, the boy was trying to blackmail the girl with the picture, and she wanted to retrieve it… She was forced to meet him in a “khalwa”, which invalidates the rule of “personal will” in Shariah. As Saudi jurists agree, the legal definition of khalwa doesn’t apply to the situation when a person is in dire need to attend such a meeting, or does so under duress.

The Saudi judiciary accepted to review the case, but before it began looking into it, Saudi Arabia’s King Abdullah decided, on December 17, to pardon the ‘Girl of Qatif’, bringing the dramatic story of this girl to a compassionate ending.

Despite this humane conclusion to the case, many Muslims would agree with Amnesty International, that “the criminalisation of ‘Khalwa’ is inconsistent with international human rights standards, in particular, an individual’s right to privacy.”

Of course, if any human rights organization in the area were to present the political/religious authorities of the Gulf States with a proposal to suppress any sanctions for khalwa, they would reject it out of hand, on the grounds that it was “inconsistent” with Muslim law. But this only demonstrates the important differences which continue to exist between Muslim countries in their interpretation of the prescriptions of the Shari’ah.

Everybody agrees that there are no Qur’anic verses which forbid khalwa, or define any sanction applicable to it. The main text of reference on the subject is a hadith of the Messenger, which states:

“’Whosoever believes in Allah and the Last Day, let him not be alone with a woman who has not a Mahram (male relative who she cannot marry) with her. Indeed, the third (person) is al-Shaytan!” [Ahmad].

This hadith implies that, when a man and a woman are alone in a secluded place, there may be temptation lurking. But, at the same time, Islam teaches moral responsibility and individual accountability, underlining the fact that each person is individually responsible for their actions before God.

Therefore, in North African countries, for example, the hadith on khalwa is viewed as merely indicating ethics of conduct, in order to avoid committing sins of the flesh. Some people may frown on a situation of khalwa but, as long as no fault has been committed there is no reason to apply any sanction. Punishment is only called for when actions which are forbidden by law actually take place, such as adultery, prostitution, and the like.

In other countries, such as the Gulf States, the hadith has been interpreted by the ulema as forbidding khalwa. But, even in that case, the Messenger did not define any punishment to be applied to those who put themselves in such a situation. It was the ulema, through their own ijtihad – their personal reflection – over the centuries, who studied the ‘offence’ in its various aspects, defined its nature and decided on the applicable sanctions (under the ta’azir approach, in which the judge has latitude to decide on the applicable sanction).

When a case such as that of the ‘Girl of Qatif’ gains worldwide publicity, most Muslim people find themselves at a loss to understand why different Muslim countries, applying the same Islamic law, implement it with such strikingly different results. How can the same action be a punishable offence that is severely sanctioned in one region, whereas in another region it is no offence at all, and carries no punishment?

The situation becomes even more perplexing when a Saudi judge explains, in an interview published by a major Saudi daily newspaper, that the Courts have shown “compassion and pity” for the girl (when she was condemned to 90 lashes, later raised to 200 lashes plus 6 months in jail). If that had not been the case, it was his opinion, as a judge with 30 years experience, that the judges “should have condemned the girl of Qatif to death”, together with the other people involved in the case.(1)

One is reminded of Ali ibn Abu Talib’s observation that it is human beings (with all their frailties) who interpret the Shari’ah. In the Gulf States, personal status law has not yet been codified into a mudawwana, and both the judges and the people have some difficulty at times, distinguishing between tribal ‘law’ and customs and the prescriptions of Islamic law, especially in ta’azir situations.

One would think, in these conditions, that there is latitude for change in the judicial system’s view of khalwa in the Gulf States, if the political authorities were inclined to do so. The only major obstacle to be confronted is the weight of traditions.

“Unfortunately,” says Suhaila Hammad, a writer who supports women’s rights, “tradition and customs control many people here (in Saudi Arabia) and they confuse them with Islamic law. As for the argument that we should introduce women’s rights gradually, I say Islam came 1,428 years ago. Are all these centuries not enough to understand it?” (2)

Notes:

(1) Okaz newspaper, Nov 27, 2007 : an interview with judge Ibrahim al-Khodhairi (in Arabic)

(2) Heba Saleh, ‘Women’s rights: Barrier of silence has been broken’, Financial Times, December 4, 2007