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Who Failed Rizana Nafeek?

On January 11, 2013

Rizana Nafeek was beheaded on January 9, less than two days after a final appeal made by Sri Lankan President Rajapakaa. The several clemency appeals made by Sri Lanka, other states, and human rights organizations failed largely due to the disastrous interplay between Saudi’s flawed legal system and Sri Lanka’s miserly support for migrant workers.

Saudi Arabia holds one of the world’s highest execution rates, ranking second after China in 2011. Amnesty is granted to convicts only by “forgiveness” from the victim’s family. In the case of migrant workers, this forgiveness generally entails blond money paid out by sending-nations. Consequently, appeals at the diplomatic level scarcely effect the outcome of these cases. Instead, they serve primarily as symbolic gestures, as well as public ‘evidence’ of the state’s efforts to save a national’s life.

Furthermore, Saudi’s legal system is particularly hostile to migrant workers. Translators are rarely provided during judicial proceedings, which are conducted entirely in Arabic. Nafeek’s original confession was made under duress, and without the presence of either a lawyer or a translator. Though Sri Lankan authorities are well-aware of these conditions, ‘embassy policy’ prohibits the provision of legal aid to migrants. Thus, the Sri Lankan foreign ministry’s claim that Nafeek’s execution occurred "despite all efforts at the highest level of the government and the outcry of the people locally and internationally" is misleading. Instead, an MP’s indictment that the government did little to “ensure Rizana Nafeek’s legal rights” more accurately reflects Sri Lanka’s conduct; the absence of any support mechanism for incarcerated nationals precluded the opportunity for a fair trial. The Sri Lankan government obviated accountability even whilst Nafeek’s case became a protracted, years-long affair, abandoning her defense to resource-limited NGOs. Only when Nafeek was sentenced to certain death did Sri Lanka intervene, at which point the prospect of her discharge was substantially diminished, dependent entirely on the procurement of amnesty - rather than on her innocence, or through a capable lawyer’s argument (which may have stressed that the death penalty would contravene Saudi’s obligation to the Convention on the Rights of the Child).

Additionally, the questionable conduct of Sri Lankan delegations sent to appeal for Nafeek’s release were heavily criticized by rights groups. Organizations including the Asian Human Rights Commission (AHRC) accused the delegations of misleading the public regarding the status of Nafeeks’ case. Delegation officials repeatedly indicated that a settlement was on the horizon. However, the family’s tribe, with whom negotiations were conducted, expressed a dramatically different version of events. The tribe’s leader angrily stated “that these kind of ‘diabolic lies’ would only worsen the case of Sri Lanka’s house maid Rizana Nafeek as well as the cordial relationship of our two countries.” Rights groups indicated the delegations’ missteps may have been detrimental to Nafeek’s fate.

In the aftermath of Nafeek’s execution, the crucial question becomes: how can states avoid similar situations in the future? Sri Lanka may be inclined to ban domestic workers from Saudi, as Indonesia did following Ruyati Binti Sapubi’s beheading in June 2011. Bans are intended to provoke a response from receiving nations in the form of new legislation and improved policies, but they have had little success in the past. Bans also represent very public condemnations of Saudi policy, but they can actually be detrimental to workers, who often elect to migrate to banned nations illegally. While Saudi must address the deficiencies of current migrant worker policies, bans are rarely an incentive for substantive policy change. Other bilateral mechanisms must be explored to pressure Saudi to adopt essential reforms.

In addition, Sri Lanka can begin to improve nationals’ conditions on its own initiative. In the same way Indonesia has provided free lawyers to workers in Malaysia, Sri Lanka can create a legal defense fund to support its convicted nationals. Translation and attorney services can ameliorate judicial discrimination and prevent cases from reaching such critical phases. The introduction of legal support mechanisms will have a much greater and more immediate impact on migrant worker conditions than indefinite moratoriums.

However, Rizana Nafeek's ultimate legacy does not lie exclusively with states. Nafeek's preventable tragedy received extensive media attention, both within and outside the region. Her injustice may encourage local NGOs to fill the systemic voids in legal and translation services, as well as to promote social reflection of institutional migrant discrimination. If civil societies in both sending and receiving nations escalate repudiation of the states' mistreatment of migrant workers, a critical step to improving migrants' reality will be initiated.