Saudi Legal Sytem
Saudi Arabia is unique in enshrining a religious text as a political document. The primary source of law is the Islamic Sharia derived from the teachings of the Qu’ran and the Sunnah (the traditions of the Prophet). Islamic Law, in confronting the problems of life and setting down solutions for them, is established on two complimentary principles. These are: the stability and permanence of its basic tenets on the one hand and the dynamism of its subsidiary injunctions on the other. For the unchanging aspects of life, Islamic Law brings fixed statutes. For the dynamic aspects of life that are affected by social development, broadening horizons, and advances in knowledge, Islamic Law comes with general principles and universal rules capable of being applied in a number of different ways and in a variety of circumstances.
While sharia as interpreted by the government extends these provisions to all citizens and noncitizens, the law and practice discriminate against women, noncitizens, nonpracticing Sunni, Shia, and persons of other religions. For example, judges may discount the testimony of nonpracticing Sunni Muslims, Shia Muslims, or persons of other religions; sources reported that judges sometimes completely disregarded or refused to hear testimony by Shia.
There are severe restrictions on foreign travel for women and members of minority groups. No one may leave the country without an exit visa and a passport. Women under the age of 45, minors (men younger than 21), and other dependents or foreign citizen workers under sponsorship require a male guardian’s consent to travel abroad. A noncitizen wife needs permission from her husband to travel unless both partners sign a prenuptial agreement permitting the noncitizen wife to travel without the husband’s permission. Government entities and male family members can “blacklist” women and minor children, prohibiting their travel. The male guardian is legally able in custody disputes to prevent even adult children from leaving the country.
Saudis spent around SR78 billion ($21 billion) on tourism overseas in 2017, down 20% from the previous year, which amounted to SR97.3 billion ($26 billion), an Arabic daily reported 05 June 2018. The year 2016 saw the largest percentage of spending. The number of tourists was 10.1 million, out of a total male population of about 13.5 million. Flights landing in the Gulf countries constituted 48% of all flights made by Saudis overseas, and in the Middle Eastern countries constituting 24% of all flights. In other words, the departure flights to Middle Eastern countries constituted 72% of all flights. Flights to South Asia countries came third at 2.9 million, followed by European countries at 1.3 million, African countries at 889,000 flights, East Asian countries at 758,000 flights, North and South America at 136,000 flights.
Sharia is not codified and there is no system of judicial precedent. Since the country lacks a formal written penal code listing criminal offenses and the associated penalties for them, punishment--including the imposition of capital punishment--is subject to considerable judicial discretion in the courts. Saudi judges tend to follow the principles of the Hanbali school of jurisprudence (or fiqh) found in pre-modern texts and noted for its literalist interpretation of the Qu’ran and hadith. Nevertheless, because the judge is empowered to disregard previous judgments (either his own or of other judges) and will apply his personal interpretation of Sharia to any particular case, divergent judgements arise even in apparently identical cases.
Royal decrees are the other main source of law; but are referred to as regulations rather than laws because they are subordinate to the Sharia. Royal decrees supplement Sharia in areas such as labor, commercial and corporate law. Additionally, traditional tribal law and custom remain significant.
The Sharia court system constitutes the basic judiciary of Saudi Arabia and its judges and lawyers form part of the ulema, the country’s religious leadership. However, there are also extra-Sharia government tribunals which handle disputes relating to specific royal decrees. Final appeal from both Sharia courts and government tribunals is to the King and all courts and tribunals follow Sharia rules of evidence and procedure. The Saudi system of justice has been criticized for being slow, arcane, lacking in some of the safeguards of justice and unable to deal with the modern world.
In 2007, King Abdullah issued royal decrees reforming the judiciary and creating a new court system, though the reforms have yet to be implemented. The capabilities and reactionary nature of the judges have, in particular, been criticized and, in 2009, the King made a number of significant changes to the judiciary’s personnel at the most senior level by bringing in a younger generation.
Western-based organizations such as Amnesty International and Human Rights Watch condemn both the Saudi criminal justice system and its severe punishments. However, “ordinary Saudis”, according to a BBC report, support the system and say that it maintains a low crime rate. There are no jury trials in Saudi Arabia and courts observe few formalities. Human Rights Watch, in a 2008 report, noted that a criminal procedure code had been introduced for the first time in 2002, but it lacked some basic protections and, in any case, had been routinely ignored by judges. Those arrested are often not informed of the crime of which they are accused or given access to a lawyer and are subject to abusive treatment and torture if they do not confess. At trial, there is a presumption of guilt and the accused is often unable to examine witnesses and evidence or present a legal defense. Most trials are held in secret.
Capital and physical punishments imposed by Saudi courts, such as beheading, stoning (to death), amputation and lashing, as well as the sheer number of executions have been strongly criticized. The death penalty can be imposed for a wide range of offences including murder, rape, armed robbery, repeated drug use, apostasy, adultery, witchcraft and sorcery and can be carried out by beheading with a sword, stoning or firing squad, followed by crucifixion. The 345 reported executions between 2007 and 2010 were all carried out by public beheading. The last reported execution for sorcery took place in June 2012.
Although repeated theft can be punishable by amputation of the right hand, only one instance of judicial amputation was reported between 2007 and 2010. Homosexual rights are not recognized. Homosexual acts are punishable by flogging or death. Lashings are a common form of punishment and are often imposed for offences against religion and public morality such as drinking alcohol and neglect of prayer and fasting obligations.
Retaliatory punishments, or Qisas, are practised: for instance, an eye can be surgically removed at the insistence of a victim who lost his own eye. Families of someone unlawfully killed can choose between demanding the death penalty or granting clemency in return for a payment of diyya, or blood money, by the perpetrator.
In March 2014, the Saudi interior ministry issued a royal decree branding all atheists as terrorists, which defines terrorism as “calling for atheist thought in any form, or calling into question the fundamentals of the Islamic religion on which this country is based”.
Islamic Law has clear texts prescribing fixed punishments for those crimes that no society is free of, crimes that do not vary in their forms because they are connected with the constant and unchanging factors of human nature.
Islamic Law confronts other crimes by stating the general principle that decisively indicates their prohibition, leaving the punishment to be decided by the proper political authority in society. The political authority can then take the particular circumstances of the criminal into consideration and determine the most effective way to protect society from harm. In accordance with these principles, punishments in Islamic Law are of three types:
- Prescribed punishments (Hudood)
- Retribution (Qisas)
- Discretionary punishments (Ta’zeer)
The courts established in 1928 are divided into three levels -- Ordinary Courts, High Courts of Sharia Law, and Court of Causation or Appeals. The trial courts have one or more judges depending on the seriousness of the offense. They hear cases and sentence offenders. Appeals are limited to the more serious cases. Saudi trial procedure is very informal when compared to that in the West. In some cases, the legal action must be brought by the victim; in others, any person may bring the action. Often it is brought by the police. Legal representation is discouraged. The defendant is expected to defend himself. Some punishments appear to be harsh by Western standards.
Sharia courts included courts of first instance and appeals courts. Minor civil and criminal cases were adjudicated in the summary courts of first instance. One kind of summary court dealt exclusively with beduin affairs. A single qadi presided over all summary court hearings. The general courts of first instance handled all cases beyond the jurisdiction of the summary courts. One judge usually presided over cases in the general courts, but three qadis sat in judgment for serious crimes such as murder, major theft, or sexual misconduct.
Decisions of the summary and general courts could be appealed to the sharia appeals court. The appeals court, or court of cassation, had three departments: penal suits, personal status suits, and all other types of suits. The appeals had two seats, one in Riyadh and one in Mecca. The chief justice and a panel of several qadis presided over all cases. The king was at the pinnacle of the judicial system, functioning as a final court of appeal and as a source of pardon.
The Ministry of Justice, established in 1970, administers the more than 300 Sharia courts in Saudi Arabia. The Minister of Justice is appointed by the king from among the country’s most senior ulema. The ulema have significant political influence and include religious scholars, judges, lawyers, seminary leaders, and prayer leaders. Secrecy and the lack of internationally recognized standards of due process have long been distinctive features of the Saudi justice system. The Saudi legal system has undergone some change, both structurally and procedurally. A new criminal procedure code went into effect in May 2002 explicitly detailing the rights of the accused, along with regulations as to its implementation.
In 2005, King Abdullah issued decrees approving an overhaul of the judicial system and which were incorporated in the Judiciary Law of 2007; one change was the replacement of the Supreme Council of Justice with the High Court. The High Court chief and chiefs of the High Court Circuits appointed by royal decree following the recommendation of the Supreme Judiciary Council, a 10-member body of high level judges and other judicial heads; new judges and assistant judges serve 1- and 2- year probations, respectively, before permanent assignment. Subordinate courts include the Court of Appeals; first-degree courts composed of general, criminal, personal status, and commercial courts, and the Labor Court.
Amendments to the Law of Criminal Procedure in 2013 strengthened provisions stating that authorities will offer defendants a lawyer at government expense. Nevertheless, the new Counterterrorism Law limits the right of defendants in cases defined by the government as terrorism to access to legal representation to an unspecified period “before the matter goes to court within a timeframe determined by the investigative entity.”
Rulings and sentences diverged widely from case to case. According to judicial procedures, appeals courts cannot independently reverse lower court judgments; they are limited to affirming judgments or returning them to a lower court for modification. Even when judges did not affirm judgments, appeals judges in some cases returned the judgment to the judge who originally authored the opinion. This procedure sometimes made it difficult for parties to receive a ruling that differed from the original judgment in cases where judges hesitated to admit error. While judges may base their decisions on any of the four Sunni schools of jurisprudence, the Hanbali school predominates and forms the basis for the country’s law and legal interpretations of sharia.
Shia citizens use their legal traditions to adjudicate family law cases between Shia parties, although either party can decide to adjudicate a case in state courts, which use Sunni legal tradition. According to the law, there is neither presumption of innocence nor trial by jury. While the law states that court hearings shall be public, courts may be closed at the judge’s discretion. As a result many trials were closed.
Since 2013 foreign diplomatic missions have been able to obtain permission to attend nonconsular court proceedings (that is, cases to which neither the host country nor any of its nationals were a party), and they did so throughout the year. To attend, authorities required diplomats to obtain advance written approval from the Ministry of Foreign Affairs, the Ministry of Justice, the court administration, and the presiding judge. Authorities sometimes did not permit entry to such trials to individuals other than diplomats who were not the legal agents or family members of the accused. Court officials at the SCC sometimes prevented individuals from attending trial sessions for seemingly trivial reasons, such as banning female relatives or diplomats from attending due to the absence of women officers to inspect the women upon entry to the courtroom. According to the Ministry of Justice, authorities may close a trial depending on the sensitivity of the case to national security, the reputation of the defendant, or the safety of witnesses.
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