Appeal for Clemency for

We are appealing to your sense of mercy in requesting clemency for Raif and . As you know, Raif Badawi has been in prison for over seven years and Samar Badawi is being detained incommunicado without charges or access to family or a lawyer.

Our appeal is based on appreciation for your authority, Saudi Arabian law and the law that governs this matter. More specifically, we base our appeal on the Qur’an and the Sunna of the Prophet, which provide the source for all worldly authority in the Kingdom of (Basic Regulation of the Kingdom of Saudi Arabia, Articles 1 and 7).

Acts Infringing on Religious Values – the Centrality of Maslahạ

Raif Badawi was sentenced for violating the cyber criminal prohibition on acts that infringe on religious values, an offence created in order to further community welfare, or Maslahạ . It is thus considered a ta’zir offence under Sharia law, with no mandated punishment.

Ta’zir offences afford the worldly sovereign the absolute greatest flexibility in sentencing offenders. Similarly, once the accused has started serving the sentence, the sovereign has the discretion to pardon ta’zir offences by considering whether it furthers Maslahạ — the ultimate purpose of Sharia. Indeed, it is the supreme obligation of the worldly sovereign to protect the public interest (Al-Masalih Al-'Amma). We therefore ask that your Royal Highness look to the light of Revelation and the example of the Prophet for guidance in promoting Maslahạ in the case of Raif and Samar Badawi.

Maslahạ and Bolstering Saudi Arabia’s Reputation as a World Leader

Saudi Arabia’s international standing has been prejudiced by a number of recent events including the Yemen war, the Qatar embargo and the Khashoggi affair. Some international media sources have cautioned that the Kingdom is facing a serious reputational crisis.

The international critique of Saudi Arabia may continue to intensify without the Kingdom sending a clear signal to the world that it remains committed to its promised reforms. Presently, at the forefront of international concern are (1) of expression and (2) the progress of women in Saudi Arabia. The release of Raif and Samar Badawi, the international symbols who embody these two respective areas, will send the clearest possible message that the Kingdom remains committed to its promises of reform. Such a gesture will showcase to the world that the Kingdom’s actions are consistent with its public pronouncements, thus consolidating its reputation as a world leader and ensuring a successful 2030 Vision.

What follows is a summary of the considerations that warrant a granting of clemency to Raif and Samar Badawi.

1. Raif Badawi Exercised Moderate and Protected Expression Under Saudi Arabian Law

Raif Badawi was imprisoned for simply creating a forum for exchanging ideas online and expressing moderate views therein, actions that further your vision for a moderate and free access to online media. His writings echo the very same ideas and aspirations for modernization championed by your Royal Highness.

In an interview with The Atlantic in April of 2018, you laid out a standard for in Saudi Arabia that cannot cross “three lines:” (1) the defamation of Islam; (2) personal attacks against authority figures and (3) national security. The speech for which Raif Badawi is imprisoned cannot be categorized as crossing any of the three lines.

First, far from defaming Islam, his writings venerate leading clerics and prominent religious authorities, and are anchored in the text of the Holy Qur’an.

Second, no personal attacks are contained in his writings. In fact, he never even singled out individuals with whom he disagreed.

Third, far from posing a threat to national security, Raif Badawi sought to strengthen Saudi Arabia. In fact, if released, his moderate and reasonable voice would serve as an important buffer against the spread of violent extremism in Saudi Arabia. In his writings, he shares the goals of the Saudi leadership for a stronger and more developed Saudi Arabia.

Thus, Raif Badawi expressed protected speech and his conviction breached the Saudi Arabian standard of freedom of expression.

2. Internationally Celebrated Heroes: Raif and Samar Badawi are Distinguishable from Extremist Islamist Prisoners

Raif and Samar Badawi are clearly distinguishable from prisoners who have promoted extremist Islam, violence and rebellion, or are in prison under crimes of terrorism for these offences. Such violent prisoners can pose a clear threat to national security. In contrast, Raif Badawi’s writings reflect a deep patriotism. In a tribute to Saudi National Day, he expresses a true love of the Saudi nation and calls for patriots to protect the nation “with their souls, money and through the next generation.” In fact, Raif Badawi spoke out against extremism and political Islam. Instead, he expressed views of tolerance and modernization, promoting “advancement through dialogue.” These are ideas which only aim to protect and strengthen national security and have been echoed by your Royal Highness.

The grounds for Samar Badawi’s arrest remain unknown, and therefore the expression for which she is in prison is unclear. It is clear, however, that she has never been associated with extremism. She is chiefly known for her involvement in the campaign to lift the ban on women driving, representing another pillar of your moderate reforms.

Moreover, Raif and Samar Badawi are singularly unique in their elevated status as celebrated international heroes, universally recognized for their human advocacy. Samar is the recipient of the US State Department’s International Women of Courage Award, while Raif has been nominated for the Nobel Peace Prize and is the recipient of the European Union’s highest honour, the , among dozens of other awards and accolades.

Thus, Raif and Samar Badawi are unique outliers in the Saudi prison system and their release will not affect the continued imprisonment of other extremists. It will, however, reverberate positively throughout the world and will resonate in support of the national interests of Saudi Arabia and that of your Highness.

3. The Importance of Balance and the Justice Principle

The entire system of the Universe is founded on justice; those who dwell in it shall respect the bounds of their authority and not disturb the balance (Ar Rahman, vv. 7-9).

This balance dictates that punishment is not merely a means for expiating sins in this world. Rather, punishment serves to absolve the sinner of punishment in the Hereafter, as Allah is too generous to repeat punishment that has already been served (Tirmidhi, Tabarani).

The determination and enforcement of appropriate sentences is not only the right of the worldly sovereign, but also a weighty responsibility.

Sentences for ta’zir offences should be guided by the principle of balance (Qur’an 55:9, 55:10). As such, the worldly sovereign should ensure that a sentence is no more severe than the minimum needed to accomplish the goals of punishment, as it is written:

It is better for the ruler to err in granting a pardon than to err in enforcing a punishment (Al-Tirmidhi #1344).

Accordingly, where punishment is too lenient, the sinner will be punished further in the Hereafter, while the worldly sovereign will have respected the dictate of erring on the side of pardon. On the other hand, where the punishment is too severe, the sovereign will himself have offended the principles of Sharia.

As expressed by the Saudi judge Saykh Sulaymān al-Musā, in 1985:

Here we make judgments only for this world. In the Hereafter all those whom we judged here will confront us and demand an accounting or reckoning.

Clemency for the Badawis accords with the foundational principles of justice, compassion and balance.

a. Application of the Principles of Balance and Mercy to Raif Badawi

Raif Badawi was convicted under Article 6 of the Anti-Cyber Crime Law, which provides for “imprisonment for a period not exceeding five years.” Although the prosecution initially requested a five-year prison sentence, the sentences against Raif Badawi varied significantly over the course of his legal proceedings. He was ultimately sentenced to ten years, in clear violation of the law which allows for a maximum five-year sentence. At this point, after already languishing in prison for over seven years, a grant of clemency would correct these injustices, comply with Saudi law and avoid an overly severe punishment.

Indeed, a grant of clemency would be consistent with past royal intervention to mitigate his sentence. In 2015, after the first 50 lashes of the 1000-lash sentence were administered, the royal family intervened to suspend the remaining lashes indefinitely. Thus a grant of clemency would serve the principle of balance and bolster the credibility of the royal family since it would be consistent with Saudi law and past merciful intervention in this case.

In this regard, we understand that there have been statements seeking harshness in the sentencing of Raif Badawi made by his father, Mohammed Badawi. However, with all due respect, Mohammed Badawi has no legal standing to intervene. Firstly, the Criminal Court already dismissed the complaint filed by Mohammed Badawi against Raif Badawi in this case. Second, Mohammed Badawi’s guardianship over Samar Badawi has long been removed. In June 2010, a court ordered the transfer of Samar Badawi’s guardianship to her uncle. Then, in October 2010, the Governor of at the time, Prince Khalid bin Faisal al-Saud, confirmed her uncle as her guardian. Finally, Mohammed Badawi’s statements are ultimately irrelevant to this case. The duty to determine punishment for ta’zir offences and protect Maslahạ rests solely with the worldly sovereign, not Mohammed Badawi. While Raif Badawi’s father may wish to serve the welfare of the Kingdom, we respectfully submit that he cannot appreciate all the considerations the worldly sovereign, an impartial mediator, would take into account.

This is the reason the Sharia has firmly located the exclusive authority over ta‘zir punishment and preservation of Maslạ ha in the hands of the worldly sovereign who has complete command of all the facts and relevant considerations. We respectfully submit your authority should not be swayed by his comments. Leaders are beckoned to

Hold to forgiveness; command what is right; but turn away from the ignorant (Qu’ran 7:199).

The determination of punishment consistent with balance and mercy is an exceptional duty that rests with the worldly sovereign alone, instructed by the Qu’ran and the Sunna of the Prophet.

4. Natural Cases for Clemency

Consistent with Sharia law, we trust your appreciation of our appeal to be guided by the spirit of mercy and magnanimity, which underpin the principles of justice and balance. Indeed the Qur’an, in an important injunction, commands to “hold on to forgiveness” (7:199), while lessening scandal (24:19).

We respectfully submit the following factors, which we believe should weigh in favour of clemency for the Badawis:

1) The Punishment Already Served

Raif Badawi has spent over seven years in prison and has suffered flogging while being separated from his wife and three children. Samar Badawi has been forcibly separated from her two children and has been held incommunicado since, without access to family or a lawyer. A severe example has already been made of the Badawis. If it was the goal of the Kingdom to repel harm away from the masalih through their punishment, it has sincerely accomplished this goal already.

2) The Nature of the Charges

While there are no charges against Samar, Raif Badawi was convicted of acts infringing on religious values, a ta’zir offence meant to affirm stability and well- being in society. It is not a crime identified by Allah with designated punishment. It is therefore the responsibility of the worldly sovereign alone to strike the right balance in determining punishment, which must be informed by balance and should err on the side of mercy.

3) The Prosecution and Imprisonment of Raif Badawi Arguably Breached Saudi Arabian Law and International Treaties to which Saudi Arabia is a Party

A number of violations of Saudi law render Raif Badawi’s conviction unlawful.1 First, the criminal court that convicted him lacked jurisdiction. Second, his lawyer was arrested during the legal proceedings and they were excluded from

1 For a more detailed discussion of the unlawful prosecution, see the attached Legal Argument Summary. the review process. Third, the criminal court convicted Raif Badawi of charges that were not included in the list of charges and accepted evidence against him that was inadmissible, including comments published online by third parties. Third, the witnesses’ credibility was attested to by one person instead of two, in clear violation of Saudi law. Lastly, the conviction breached his right to freedom of expression under Saudi law.

4) Controversy

As noted, the Qur’an implores that scandal be minimized (24:19). With the sentencing objectives associated with Raif Badawi already accomplished, it is most consistent with Sharia principles to offer clemency and thus avoid compounding controversy surrounding his case. Indeed, increasing controversy in around his case risks undermining the strong message that has already been sent and disturbing the balance commanded by Sharia law and Maslahạ .

5) Family Responsibilities and Family Reunification

Raif Badawi is a husband and father of three children. Samar Badawi is a mother of two children. Their continued separation– to the detriment of their families – could only be justified by the strongest necessity. That necessity is not present in their cases. On the other hand, family reunification and the families’ welfare are fundamental humanitarian principles in Sharia law.

6) The Welfare of the Children

The Prophet was known to be the “most compassionate towards children” (hadith narrated by Anas ibn Malik) and implored “O Allah! Please be merciful to them, as I am merciful to them” (hadith narrated by Usamah ibn Zaid). He showed great love and tolerance not only towards his own children but towards all children.

The Prophet understood children’s needs for affection and security as well as parents’ essential role in providing for such needs (hadith narrated by Abu Hurairah).

As a result of their imprisonment, their innocent children are deprived of the nurturing environment to which all children are entitled. It is certainly in their best interest to be reunited with their parents.

In Raif Badawi’s case, he is responsible for his three children’s nafaqa. He must be with them to provide for all their needs and their education.

As worldly sovereign, bestowed with the exceptional responsibility of finding balance in proper punishment, we ask that you turn to these considerations in determining your mercy for Raif and Samar Badawi.

Conclusion

It is our respectful appeal that a decision to grant clemency to Raif and Samar Badawi is not only consistent with the principles of Sharia and Saudi law, but is mandated by them. The release of Raif and Samar Badawi will resonate positively within Saudi Arabia and across the world, thus protecting and promoting Maslahạ .

Honourable , P.C., O.C., O.Q.

Former Minister of Justice and Attorney General of Founding Chair of the Raoul Wallenberg Centre for International Legal Counsel to Raif Badawi