Saudi Arabia’s top religious body has given the green light to codify the largely unwritten Sharia regulations governing the kingdom’s criminal, civil and family courts in order to bring more clarity and uniformity to judicial rulings.
The codification project is part of a major overhaul of the country’s legal system initiated three years ago by King Abdullah bin Abdul Aziz.
The overhaul is moving slowly, observers say, because of the complexity of the reforms, lack of qualified judicial personnel and resistance from the country’s ultraconservative religious elite, who see their long-time control of Saudi courts threatened by proposed changes.
“The traditional establishment is by nature against these reforms,” said the Riyadh lawyer Ibrahim A al Modaimeegh. “So it’s going to take time to implement them.”
Legal reforms are especially needed in the commercial area in order to attract foreign investment that Saudi Arabia is seeking to assist its economic diversification and create jobs necessary for a huge youth bulge that is entering the labour market.
The kingdom’s accessions to the World Trade Organisation and the G20 club of influential economies also mean that its legal system should meet international guidelines for commercial transactions.
Indeed, Saudi Arabia’s 2005 entry to the WTO was an impetus for King Abdullah’s renewed effort to reform the legal system, something that his predecessors had tried twice before only to be stymied by the religious establishment, for whom maintaining a strict, conservative interpretation of Islamic law is essential to Muslim identity.
The need for reform is apparent in regular newspaper accounts about long delays in courts because of a severe shortage of judges, as well the lack of due process in criminal cases.
Many courts are not computerised and dates for future hearings are entered into a written ledger, said Ronald E Pump, an American lawyer who practises in the kingdom. In both criminal and civil cases, he noted, there often is no live testimony, adding, “if you can’t make your case on documents, you’re dead”.
Saudi judges do not discriminate against foreign businesses, but they lack enforcement powers. As a result, even when foreigners obtain favourable rulings in commercial disputes, they often cannot collect what is owed them. “It’s easy to win your case, but the problem is enforcement,” Pump said.
Criminal courts are frequent targets of criticism from Saudi lawyers and human rights activists. The absence of a penal code with clear definitions of crimes and appropriate sentences gives judges great latitude and it is not uncommon for a judge to increase a sentence if a defendant exercises his right to appeal. Defendants are not always given lawyers and trials are generally not open to the public.
Last year, 330 suspects detained on terrorism-related charges were tried in secret in a new court attached to Riyadh General Court. Most of them were sentenced to prison terms of varying lengths and one received the death sentence, which the government announced after the trials were over.
Saudi rights activists and lawyers in touch with families of detainees said the trials amounted to summary judgments in which the defendants did not have appropriate opportunities to challenge evidence presented by prosecutors.
“It’s shameful to have this kind of trial [because] there are a lot of mistakes,” said Abdelaziz M al Gasim, a former judge who now works as a lawyer.
He said that one defendant received a 10-year sentence for giving a lift to people whom he did not know were al Qa’eda members.
“There are no lawyers, no family, no audience, no journalists, so it is broken trials,” said al Gasim.
King Abdullah took the first step towards legal reform with a 2007 law that would restructure the courts. That law split the old Supreme Judicial Council into two bodies, one for adjudicating appeals and one for administering the judiciary. It also expanded the number of appeals courts from two to 13.
The king allocated nearly US$2 billion (Dh7.3bn) to implement the restructuring and to expand training for judges and other court personnel. Some of that money is now being used to construct new appeals courts and to send some judges abroad for legal seminars.
While some steps have been taken to improve legal cadre training, there is still a lack of personnel knowledgeable about modern court administration and procedures, as well as insufficient numbers of lawyers. These shortages are seen as obstacles to reform.
“There is no proper legal education to produce qualified people,” said Modaimeegh, the Riyadh lawyer.
Implementing the structural changes has been rocky. Last year, the king removed the head of the Supreme Judicial Council, Sheikh Saleh al Luheidan, because the ultraconservative cleric was obstructing implementation of the proposed reorganisation, Saudi lawyers said.
And tough bargaining continues between the justice ministry and the newly reconstituted Supreme Judicial Council because of “overlaps” in defining their new responsibilities, al Gasim said. The council says it needs its own budget and administrative control to guarantee the independence of judges, while the ministry wants to direct the judiciary’s finances and administration, al Gasim added.
In addition, an older generation of judges is refusing to accept as equals younger judges because they have not had same intensive Sharia training, although they have years of experience working in arbitration committees sprinkled throughout government ministries, according to two legal sources. Under the restructuring, these committees are to become specialised courts within the national system.
The proposed codification, announced by Mohammed al Eissa, the Saudi justice minister in May, is likely to be another contentious undertaking. Approved in March by the Council of Senior Ulema, it will reportedly cover penal, civil and family laws, and take years to complete.
Saudi judges are said to be weary of any code that would impinge their independence to apply their own legal reasoning, or ijtihad. However, some Saudis say that creating more transparency and predictability in the legal process will not weaken the rule of Sharia in the legal system.
Codification “is a must….to give clarity and [reduce] ambiguity” in judicial application of laws, said the Riyadh-based Saudi lawyer Mohammad al Dhabaan. There is no reason, he added, why the new code cannot “be 100 per cent in compliance with Sharia”.
© The National