II. Legislative Developments and the Law of Criminal ProcedureSince the rule of King Abd al-‘Aziz Al Sa’ud (1902-1953), the Saudi government has been issuing regulations governing public life. Important regulations included the Public Security Law (1950), the Labor Law (1969, updated 2005), the Law of the Judiciary (1975, updated October 2007), and the Law of the Commission to Promote Virtue and Prevent Vice (1980, currently being updated). Saudi Arabia took a further step toward establishing a more professional justice system by creating the Bureau for Investigation and Public Prosecutions by statutory law in 1989. As new regulations (statutory laws) multiplied, Saudi critics argued that these laws were not rooted in any document, such as a constitution, which enumerated the rights and duties of citizens. In 1992 King Fahd issued three such documents, a trilogy of administrative laws. The Basic Law, Saudi Arabia’s proto-constitution, declared the country to be an Islamic monarchy with certain enumerated powers for Saudi Arabia’s two branches of government, the executive-cum-legislative, and the judiciary. At the same time, the king also decreed a Law of the Provinces that set forth the division of powers between the provinces and the central government and tasked provincial governors with protecting the rights of citizens and developing their respective regions. Currently, all 13 provincial governors, who are answerable to the minister of interior (Article 8), are royal princes. The third in this trilogy of basic administrative laws was the Law on the Advisory (Shura) Council. The king appoints its members (originally 60, now 150), who could “study” and “interpret,” but not initiate, legislation (Article 15). These laws did not adequately protect important human rights, especially in the criminal justice system. The rights and responsibilities of defendants, claimants, and prosecutors remained vaguely defined. While government officials and lawyers said that Sharia interpretations espouse concepts such as “no punishment without a crime” and “innocent until proved guilty,” these are not codified into law, and Sharia itself provides little specific guidance on such issues as limits on pretrial detention, the right to legal counsel, or the right to be tried in person. The Basic Law also did not specify basic rights of due process and fair trial that defendants in the criminal justice system might invoke upon arrest and in court. A new set of laws helped fill in some of the gaps left by the Basic Law. In 2000 the government issued a 266-article Civil Procedure Code. The following year King Fahd agreed to the text of Saudi Arabia’s first Law of Criminal Procedure, which entered into force in 2002. This law contains 225 articles laying out the process for the initiation of criminal action; rules of collecting and preserving evidence; conditions of arrest and pretrial detention, including bail; and the jurisdiction of courts and their proceedings. The government at the same time issued the Code of Law Practice regulation, stipulating procedures for the licensing and appointment of lawyers, and their rights and duties. These new laws gave Saudi citizens and residents a clearer definition of their rights in detention and at trial and laid out the procedures the investigators and courts must follow. For the first time, defendants had the right to legal counsel during investigation as well as at trial (Law of Criminal Procedure, Article 4). Shaikh Muhammad Al Abdullah, the kingdom’s chief prosecutor, told Human Rights Watch that “all of our work follows the criminal procedure code in all cases.”12 Most of those interviewed told Human Rights Watch that the Saudi government implemented the criminal laws unevenly, and sometimes not at all. Defendants described numerous and specific instances in which prosecutors, arresting officers, and judges did not act in conformity with the law’s provisions. Jeddah-based lawyer Aiman told Human Rights Watch, “The criminal procedure code is still new for prison officials. A detainee has to insist on his rights and know them. Nobody will tell him his rights or facilitate his access to them.”13 Hisham, a Dammam-based lawyer with trial experience, confirmed to Human Rights Watch that “Judges are not very conversant in the criminal procedure code.”14
Saudi law divides punishments for criminal acts into three broad categories: (1) offenses against God carrying inalterable punishments prescribed by the Quran (hadd); (2) private rights to retribution connected with a criminal act (qisas); and (3) discretionary punishments (ta’zir) for all other criminal offenses. |