Hadd crimes include adultery, false accusation of adultery, apostasy, drinking alcohol, theft, rebellion, and armed robbery. Qisas is most commonly applied to murder and manslaughter and instances of physical or material harm or harm to the reputation of another person. Tazir punishments cover all other actions that a judge may deem to be criminal and that warrant public action, for example, the failure to observe prayer, lewd behavior, or defrauding others.
Saudi Arabia does not have a written penal code, but relies on judges interpretations of the Sharia for determination of which actions constitute crimes and what the attendant punishment should be. The definitions of crimes and nature and severity of punishments may vary from case to case. In 2005, as Saudi Arabia was negotiating its accession to the World Trade Organization, Saudi officials revived an idea first touted by King Abd al-Aziz in the 1930s, to provide citizens, law enforcement officials, and judges with a clear, written formulation of what constitutes a crime. According to Shaikh Abd-al-Muhsin al-Ubaikan, the Justice Ministrys judicial adviser and member of the Saudi Shura Council, the countrys highest leadership approved a plan to compile Islamic jurisprudence (fiqh) in the form of articles of law to be used by the courts but without being compulsory.15
Despite al-Ubaikans 2005 assertions concerning a plan to codify criminal jurisprudence, no such laws had been publicly discussed or enacted at this writing.
(Saudi Arabia has passed statutory laws for a limited number of offenses, such as embezzlement, official abuse of power, and drugs-related and explosives-related offenses. The Board of Grievances, under a law regulating its jurisdiction updated in October 2007, lost jurisdiction over embezzlement, abuse of power, and explosives cases, which newly created, but not yet established, criminal courts are due to adjudicate in the future.16 Sharia courts adjudicate weapons and drugs offenses. Until two years ago, the Ministry of Interior set sentences for these crimes after a courted issued a guilty verdict.)
The lack of a penal code remains a key deficiency in Saudi law and a primary obstacle to protecting Saudi citizens and residents from arbitrary arrest and detention, and unfair trials. When Human Rights Watch asked a member of the Shura Councils Islamic Affairs, Judiciary, and Human Rights Committee about the desirability of a penal code, he said that the opinions on disparate matters of jurisprudence by various scholars, often written hundreds of years ago, sufficed as guidance.17 Minister of Justice Abdullah Al al-Shaikh, in a March 10, 2007 wide-ranging interview on the new judicial law, said, The royal palace has issued its preliminary approval and which we hope will see the light [of day] soon, but did not touch upon aspects of codifying Sharia jurisprudence into a penal law.18
International law stipulates that a government must clearly put those under its jurisdiction on notice as to what constitutes a crime. This principle is anchored in the Universal Declaration of Human Rights. Article 11 of the UDHR states, No one shall be held guilty of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.19 Article 15 of the International Covenant on Civil and Political Rights (ICCPR) repeats this provision almost verbatim. This principle of legality holds that, under international law, the state can only sanction or punish people for acts that are prohibited by law. The laws setting forth criminal acts must be accessible to the persons concerned and be formulated with sufficient precision to enable defendants to have been able to foresee, with legal advice if necessary, to a degree that is reasonable in the circumstances, the consequences that a given action might entail. Where the law does not specify a prohibited act in a manner that is accessible and reasonably foreseeable, a person cannot be lawfully charged with having committed an offense.
The principle of legality lies at the heart of the rule of law. It provides an important safeguard against arbitrary criminalization of acts not otherwise prohibited. Vague, over-broad, and inaccessible laws violate this principle and thus undermine the rule of law.
A Riyadh-based lawyer and former judge told Human Rights Watch of his frustration with the limits of the Law of Criminal Procedure in the absence of a penal code: I dont take criminal cases because there is no law I can argue with.20 A Jeddah-based lawyer echoed this view: Currently theres a discussion about a penal code, he said. The reason is that the criminal procedure code exists, but a criminal procedure code without a penal code is like a plane with one wing. It cant fly.21
The need for a codified penal code is central to respect for human rights, as without clear, explicit direction to the contrary, exercise of basic human rights in Saudi Arabia could currently bring an individual into conflict with the law. The Saudi Basic Law contains no positive protection of the rights to assembly and association, for example, leaving it up to a judge to decide when a certain act may have crossed an unwritten line of obedience to the ruler and public interest. These concepts of obedience and public interest are part of an undefined area in which the ruler, through edicts, and the judge, by adjudicating individual acts, lay temporary and unpredictable boundaries as to what constitutes a criminal act.
Saudi rights activists formed the Committee for the Defense of Legitimate Rights in 1993. Saudi authorities did not approve its establishment and arrested most of its members. The group advocated greater protection of certain human rights and opposed the presence of United States troops in Saudi Arabia. Its formation, and the arrests of its members, came on the heels of the promulgation of the Basic Law of 1992, which stated that The State shall protect human rights in accordance with Sharia.22 In this instance what trumped the Basic Laws exceedingly loosely-worded guarantees is its own Article 39, a provision that judges have used to sentence activist dissidents to jail terms for trying to form associations or speak against government policies and actions.23 Article 39 provides, It is prohibited to commit acts leading to disorder and division, affecting the security of the state and its public relations, or undermining human dignity and rights. Sharia jurisprudence contains some guidance on what acts cause disorder and division (fitnasedition) but, in the absence of a penal code, these are not predictable rules and do not give adequate notice as to what constitutes a crime.
On March 16, 2004, the government arrested 12 proponents of political and constitutional reform. Three of the 12, Ali al-Dumaini, Abdullah al-Hamid, and Matrook al-Faleh, refused to sign a pledge while in detention to desist from all future reform efforts, a condition of their being released. The Greater Riyadh Court on May 15, 2005, sentenced them to nine, seven, and six years in prison, respectively, for petitioning the king, circulating the petition to others, and publicizing it through domestic and foreign news outlets. The judges found the defendants guilty of discussing reform issues that they did not consider as discretionary public interests [maslaha mursala24] which, accordingly, the ruler [alone has the right to] consider to decide what of [the reform issues] further his interests for the country.25 When then-Crown Prince Abdullah became king in August 2005, he immediately issued a pardon for the three reformers as well as their lawyer and supporters who had also been detained.
This case illustrates the wide latitude judges have, in the absence of a written and clear penal code, to determine what is legal and what is forbidden. This wide latitude enables judges to criminalize peaceful advocacy. In this case, this resulted in prison sentences for individuals who were simply exercising rights protected under international human rights standardsthe rights to freedom of association and freedom of expression. In a meeting in Riyadh on November 28, 2006, Ali al-Dumaini, Abdullah al-Hamid, Matrook al-Faleh and others told Human Rights Watch that Saudi laws provide no protection for human rights activists engaged in peaceful advocacy, and human rights activists cannot challenge the authorities when they prohibit the exercise of certain rights. For example, officials did not respond to a petition signed in March 2003 by 50 persons from all over the country to form a human rights organization. A renewed effort to form a human rights organization in April 2006 also met with no response. Security forces dispersed a protest in solidarity with the Palestinian and Lebanese peoples in August 2006 and a similar protest three months earlier demanding employment for the unemployed.26
The police in August 2006 arrested womens rights activist Wajeha al-Huwaider for standing on the bridge connecting Bahrain and Saudi Arabia with a sign reading Give women their rights.27 Al-Huwaiders intent to demonstrate publicly and peacefully is clear, but she had no way of knowing that her exercise of her right to free expression, while perhaps socially risky, constituted an arrestable offense. Six weeks later, the secret police (mabahith) arrested her, believing she was planning a womens protest for Saudi Arabias National Day on September 20. They released her after her brother, acting as her guardian, signed a pledge that she would not protest publicly again.
Ahmad was not so lucky. He participated in a peaceful demonstration in Riyadh calling for reform in October 2003, which Sad al-Faqih, a leading Saudi dissident living in the UK,28 had instigated via the media. After Ahmads arrest on October 12, 2003, a judge sentenced him to one-and-a-half years in prison for participating in the demonstration. He obtained his release after 10 months, but on October 29, 2004, he was again arrested and spent two years in prison before Judge Ibrahim Abd al-Rahman al-Atiq on October 5, 2006, sentenced him to three-and-a-half years in prison for agitation of public opinion.29
Codifying criminal acts into a law that is consistent with international human rights standards may not eliminate political suppression of peaceful demonstrators, but it will lessen the ability of Saudi law enforcement and judicial officials to claim a legal basis to persecute and prosecute individuals for exercising their rights.
The protections against arbitrary decisions that codifying criminal law provides go far beyond securing human rights of association and assembly. Proponents of codifying aspects of Sharia appear to be gaining ground. When, in 1990, the king issued a law codifying rules of procedure for Sharia courts, fully vetted by senior scholars, the law, had to be abrogated within weeks as a result of widespread objections among especially the judges, according to one commentator.30 Ten years later, the king was able to issue the law, and, two years after that, the law on criminal procedure. As debate about codification of criminal offenses and their attendant punishments resurfaced, Saudi lawyer Khalid al-Newaisier in 2007 wrote that The codification of the judicial rules will help in completing the deficiency in the legal rules, and lead to important benefits, including tackling the short[comings] which may occur in the legislations.31
Even senior scholars are now in favor of codifying criminal offenses. A member of the Council of Senior Scholars, Shaikh Abdullah al-Mani, told the pan-Arab daily newspaper al-Sharq al-Awsat in March 2006,
15 Udwan al-Ahmari, Al-Ubaykan Reveals Presence of Muslim Brotherhood in Saudi Arabia, al-Watan, Abha, May 18, 2005, republished in translation as Saudi Adviser on Judicial Reform, Jihad in Iraq, Muslim Brotherhood's Presence, Global News Wire Asia Africa Intelligence Wire, reproduced in BBC Monitoring/BBC, May 26, 2005.
16 Law of the Board of Grievances, 2007, art. 11.e., published in al-Watan, October 3, 2007.
17 Human Rights Watch interview with a member of the Islamic Affairs, Judiciary, and Human Rights Committee of the Shura Council, Riyadh, December 3, 2006.
18 Fahd al-Dhiyabi, Dialogue of Responsibility, The Minister of Justice Reveals the Erection of Labor and Commercial Courts and Others Specialized in Traffic, One Million Real Estate Records and Electronic Archives for all Deeds and a Prohibition to Appropriate Coastal and Agricultural Lands, Okaz (Jeddah), March 10, 2007.
19 Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), UDHR, art. 11.
20 Human Rights Watch interview with Abd al-Aziz al-Qasim, lawyer, Riyadh, December 6, 2006.
21 Human Rights Watch interview with Isam Basrawi, lawyer, Jeddah, December 11, 2006.
22 Basic Law of Governance, art. 26.
23 Human Rights Watch interviews with Islamic thinkers and activists, Riyadh, November 28, and Jeddah, December 10, 2006.
24 To reason based on maslaha mursala is to draw legal conclusions not based on existing divine rules, but rather out of juristic consideration of the best interests and welfare of society. Asifa Quraishi, Interpreting the Quran and the Constitution: Similarities in the Use of Text, Tradition, and Reason in Islamic and American Jurisprudence, Cardozo Law Review, Vol. 28:1, 2006, p. 104.
25 Greater Riyadh Court, Session for the Pronouncement of the Verdict, May 15, 2005.
26 Human Rights Watch interviews with Abdullah al-Hamid, Ali al-Dumaini, and Matrook al-Faleh, Riyadh, November 28, 2006.
27 Saudi Arabia: Lift Gag-Order on Rights Campaigner. Womens Rights Activist Forced to Sign Oath Not to Protest, Human Rights Watch news release, October 31, 2006, http://hrw.org/english/docs/2006/10/31/saudia14483.htm.
28 The United Nations Suppression of Terrorism Regulations added Sad al-Faqihs name to its list on December 24, 2004.
29 Human Rights Watch telephone interview with Ahmad, al-Hair Correctional Facility, November 27, 2006.
30 Abdulaziz H. Al Fahad, The Prince, The Shaykh and The Lawyer, Case Western Reserve Journal of International Law, vol. 34, issue 2, Supplemental (2000), p. 315.
31 Dr. Khalid Al-Newaisier, The Importance Of Codifying Judiciary Judgments and Recording Fiqh (Jurisprudence) Scholars Diligences (Edicts), Al-Eqtisadiah Business Daily, March 3, 2007, issue 4894, translation from www.saudilaws.net (accessed March 12, 2007).
32 Huda al Saleh, Interview with Saudi Council of Senior Ulama Member Sheikh Abdullah Al Manee, Asharq Alawsat English Edition, March 23, 2006, http://www.aawsat.com/english/news.asp?section=3&id=4254 (accessed March 19, 2007).