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IV. Absence of Rules of Precedent

In addition to codifying elements of criminal law, Saudi intellectuals, religious scholars, and government officials have discussed the benefits of setting boundaries to judicial sentencing discretion. Currently, two types of crimes, crimes against God (hadd) and crimes giving the injured party the private right of retribution (qisas), have relatively well-defined punishments. The Quran lays down punishments for hadd crimes, although scholars differ on the circumstances of their applicability, and qisas crimes follow the rule of equal retribution: a murderer may be killed, and whatever injury a criminal causes, the injured party may ask the state to inflict that same injury on the criminal, but the injured party or his or her heirs may also accept compensation or grant a pardon. The vast majority of criminal cases, though, relate to discretionary (ta’zir) crimes, in which the judge has discretion over the definition of what constitutes a crime and over the sentence, without being bound by judicial precedent.

The widely differing sentences judges in two courts reached in two unrelated cases of kidnapping is one example of absence of sentencing guidelines for judges. In one case, three judges sentenced four of the seven men who had raped a young woman and a young man in Qatif in early 2006 to between one and five years in prison, and between 80 and 1,000 lashes, for kidnapping, apparently because they could not prove rape to the legal standard required.³³ (The case, which achieved international notoriety following a new ruling on appeal in November 2007, is discussed further in chapter VII, section “Summary Justice, Perverted Justice.”) Meanwhile, al-Watan newspaper reported in August 2005 that an appeals court upheld a judge’s sentence of 15 years in prison and 8,000 lashes for a childless woman who had kidnapped a two-year old child whom she had found wandering in the holy mosque in Mekka.³⁴

In a study of Saudi judicial rulings, Frank Vogel, a professor of Islamic legal studies, described the differences between the “Western concept of law [as] a system of formal, objective, publicly known, generally applicable, compulsory rules” and what he called the “microscopic” conception of Islamic law, in which the judge rules on “a particular, concrete event” “striving to draw as near as possible to God’s true evaluation for each particular event,” and in which “the legitimation of law arises solely from the individual conscience, as it contemplates the revelation.” Vogel added that from a Prophetic tradition it follows that “[t]ruth is the ultimate precedent, to which one must return once it is revealed … There is no rule of precedent, stare decisis, in Islamic law.”³⁵

Saudi scholars, however, are moving away from this notion of the judge as a seeker after God’s will in each particular case and increasingly agree that there should be formal and observable limits to ta’zir punishments. Some of their arguments are simply for the sake of expediency: A rulebook classifying certain crimes and adherent punishments, they argue, would greatly facilitate and speed up the task of overworked judges and assist lawyers in arguing their cases.

Lawyer Khalid al-Newaisier wrote that such institutionalization of rules of precedent “will save the time, effort and expenditure when these rules are constant, and also will help the lawyers to submit the legal opinion to their clients in any suit they think to raise, and thereby to avoid the advance litigation procedures.” Newaisier added that such institutionalization would assist lawyers in “compiling the courts[’] judgments [and] following their evolution with the aim of [attaining] general attitudes [of the judiciary].”³⁶

In a study for the Naif Arab University for Security Sciences in Riyadh, Dr. Muhammad al-Madani Busaq lists four general objectives of punishment in Islamic legislation: general deterrence; specific deterrence; neutralization of crime impact; and correction of the criminal.³⁷ He then lists possible discretionary punishments for crimes (other than hadd, qisas, and statutory crimes), such as non-observance of prayers or kidnapping, ranging from counseling and admonishment to curtailment of rights and benefits, restitution, exile, imprisonment, fines, flogging, and execution.³⁸ It seems a small step from presenting judges with this range of punishments to creating a comprehensive catalogue of crimes with attendant penalties.

In September 2004 Jawhara al-Anqari, of the National Society for Human Rights, advocated putting limits on discretionary punishments, according to a report in al-Watan newspaper.³⁹ The Ministry of Justice seems to have taken some small, initial steps in this direction. On December 9, 2006, the chief administrator at Jeddah Partial Court showed Human Rights Watch a booklet, which he described as a sentencing guide for judges. On the first page this booklet listed a table, with the first column containing a broad description of crimes, other columns showing special characteristics of the criminal acts, and a last column with a range for sentences.⁴⁰ On March 13, 2007, the Ministry of Justice announced that it was publishing certain rulings in an attempt at greater transparency and further development of Saudi jurisprudence, in accordance with Cabinet Decree 162 of August 26, 2002, but that these and future collected rulings would not be binding on judges.⁴¹

These small steps represent progress, but do not detract from the larger necessity to derive from Saudi jurisprudence, both in its theoretical and applied form, common parameters to ensure that punishment for similar crimes is not left entirely in the hands of judges, who have issued widely disparate judgments for the same acts.