AP - When Palestinian artist Ashraf Fayadh was tried last year on blasphemy-related charges, the Saudi judges overseeing the case rejected the prosecution’s request for a death sentence for apostasy. Instead, he was sentenced to 800 lashes and four years in prison over the content of a book of poetry he wrote and for illicit relations with women based on photos he had on his phone.
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An appeal was filed and the case was sent back to the lower court, but this time around judges threw out defense witness testimonies, refused to accept Fayadh’s repentance when weighing the case and sentenced him to execution for apostasy on November 17th.
His friends are now asking how the case could draw such different verdicts, especially when two of the three judges overseeing his case in the General Court of Abha in southwestern Saudi Arabia served in both the retrial and the initial trial. According to Human Rights Watch, only the lead judge had been changed.
The case illustrates how courts in Saudi Arabia can issue vastly different punishments with unexpected outcomes based on how judges interpret Islamic Shariah law, a system derived from scholarly interpretations of the Quran and verified and documented rulings and sayings of the Prophet Muhammad.
Fayadh was charged with blasphemy, spreading atheism and having an illicit relationship with women and storing their pictures in his phone, according to HRW. The Associated Press obtained a copy of the court’s ruling on November 17, which gives some light into how judges came to issue the death sentence.
Fayadh’s friends had submitted testimony disputing the veracity of a complaint filed to the country’s religious police by a man who accused him of making blasphemous comments about God, the Prophet Muhammad and the Saudi state during a heated discussion at a cafe in Abha.
The one-page court document says their testimony was not accepted in the retrial because the defendant’s own “admission is the strongest evidence,” without further specifying what Fayadh admitted to. He was arrested and released within a day for that argument in August 2013, says HRW.
That same month, Fayadh’s friends say he had filmed a member of the religious police slapping a man on the face and forcibly pinning him against a wall in Abha. The video on YouTube has been viewed nearly 195,000 times since it was posted.
While judges in the initial trial also accepted Fayadh’s repentance for anything deemed offensive or insulting to religion in his book of poetry, judges in the retrial questioned whether repentance can nullify a proscribed punishment in a case involving “hadd”, which in Islam are specific crimes such as apostasy for which punishment is considered fixed. They also wrote that Fayadh’s repentance could only be accepted by the divine, and therefor they could not consider it when weighing the verdict.
Shariah law is open to various interpretations, and many Muslim clerics say that the death penalty is not the standard punishment for someone who leaves the faith or is an apostate, sourcing it to the Prophet Muhammad’s pardon of a Muslim who had converted to another religion.
Saudi Arabia’s ultraconservative teachings of Islam, known as Wahhabism, have drawn comparisons to the extremist Islamic State group, which executes non-Muslims and those who insult the faith.
However, Saudi Shariah Courts, which are run by judges who have studied Islamic law, can issue discretionary judgments on a wide number of crimes. This system gives way to leniency too, particularly in cases where a defendant is encouraged to financially compensate a victim’s family to avoid execution in murder cases.
But in crimes of “hadd,” even the Saudi king cannot issue a pardon, though he can interject if there are questions around how the case was handled, according to Coogle and Fayadh’s friends who are familiar with the case.
It is possible that the appellate court, which ruled on the initial trial and sent the case back to general court, had deemed this case a “hadd” crime, leading to the death penalty verdict in the retrial. The AP and HRW have not been able to obtain a copy of the appeals ruling.
The judges in the retrial referred to an instance in which a woman was executed at the time of Prophet Muhammad for a “hadd” crime, to which she admitted to and to which she insisted on her punishment.
The judges in the retrial convicted Fayadh to death after one hearing whereas the first trial lasted six hearings, HRW researcher Adam Coogle said. “It’s really up to the whim of judges in these cases,” Coogle said.
Nowhere in the court’s second judgment does it state what Fayadh said that was allegedly insulting to God and religion. Fayadh’s brother-in-law Osama Abu Raya was quoted in the Saudi Al-Watan news website this week describing the artist’s 2008 Arabic poetry book “Instructions Within” as a compilation of his thoughts as a young man. He says the book was not widely published.
The 35-year-old had been better known for his role in the modern art world, curating an exhibition of Saudi artists at the 2013 Venice Biennale. He also curated a show in Saudi Arabia called “Mostly Visible” that was visited by the director of London’s Tate Modern, Chris Dercon.
He produced Saudi artist Ahmed Matar’s presentation “Word Into Art” at the British Museum in 2005.
Matar, speaking to the AP by telephone, said Fayadh’s poetry book was about Palestinian issues. He said Fayadh, who was born and raised in Abha, “is in a weak position” because he is originally Palestinian and does not have the backing of a powerful Saudi tribe to mediate on his behalf. Fayadh does not have a Palestinian passport, carrying only identification documents issued by Egypt, Matar said.
Matar and friends are turning to rights lawyers in Saudi Arabia and human rights groups to support his case. The Saudi government’s human rights body says it sent representatives to meet with Fayadh in prison in Abha, where he has been under arrest since January 2014.
In an interview on Saudi state TV posted by Fayadh on YouTube in March 2013, he talks about the role of art, saying it is a vehicle to seeing objects and situations differently.
He added: “Artists try to draw attention to issues that are considered personal... but the personal nature of this does not mean that these issues are not shared by many in society.”
Fayadh’s case will likely be bumped back to the appeals court and then to the Supreme Court for a final ruling.
“He’s not an atheist. He is a Muslim artist and poet... He’s very sensitive, he’s very intelligent. He’s a very good friend to major artists,” said Stephen Stapleton, founding director of the London-based Edge of Arabia that promotes Saudi artists.
“The reality of art is you’re going to have to cases like this,” he added.