By Akhil Shah for Gulf State Analytics
Since 2011, when the Arab Spring erupted in the Kingdom of Saudi Arabia, the ruling family has faced a host of challenges to its legitimacy. Some of this opposition has manifested in the form of peaceful protests, calling for democracy and greater freedoms. The monarchy, which has been in power for almost nine decades, sees these protests as an existential threat to its rule.
It is important to take stock of the political calculations which drove the Saudis to carry out 158 executions in 2015 – the highest figure since 1995, which equated to roughly one execution every other day. Furthermore, the January 2, 2016 execution of the internationally revered Shi’ite cleric Nimr Baqir al-Nimr, along with three other Shi’ite activists, sheds light on Riyadh’s handling of political dissent in the Eastern Province (EP), where most of the nation’s Shi’ites reside.
The Koran and the Sunnah of the Prophet guide Saudi Arabia’s political, social, and religious institutions. The Basic Laws (1992), which appear in the form of a constitution, confirm this religious-based set of institutions.
Though the Basic Laws are legally binding, they can never take precedence over the Koran or the Sunna. They simply reaffirm or complement what is written in these two sources. In particular, several articles in the Basic Laws highlight this reality.
In relation to the legal system, all laws governing Saudi Arabia are derived from the Koran and the Sunnah, in the form of Sharia (Islamic) law. Article 38 of the Basic Laws states that “there shall be no crime or penalty except in accordance with the Sharia.” In turn, all courts at all levels within the Saudi state can only render rulings derived directly from Sharia law.
Crime and Punishment under Saudi Arabian Law
Although Saudi Arabia’s legal system derives purely from the Koran and the Sunnah, there are a number of supplementary legal principles and procedures which have come into existence. These reaffirm and complement whatever is laid out in the Sharia, but also help bring the kingdom’s legal system into the modern era. Before engaging in the crux of the discussion, it is vital to first define the criminal law process in Saudi Arabia and highlight the rights attributed to defendants under Sharia law.
In 2001, Saudi Arabia passed The Regulation on Criminal Procedure, which stipulates that “no punishment may be inflicted except for crimes prohibited by Shariaa principles and Saudi national regulations.” It is comprised of three categories, which are all derived from Islamic law.
The first category is hadd (pl. haddud), a crime for which there are fixed Koranic punishments. The haddud entail crimes “that threaten Islam,” and punishment for these crimes are fixed because they are “the right of Allah.” Examples of these crimes include Koranic Verses 5:33 and 5:38, which define the punishments for robbery and civil disturbance and for theft, respectively.
Robbery and civil disturbance are punishable by death, including by crucifixion, or by the amputation of limbs (5:33). Theft is punishable by amputation. There are also numerous hadith from the Prophet Muhammad, which are used to derive what defines a crime and what the punishment is for that crime. A clear example is the hadith from the Prophet, in which he declared the punishment for apostasy. He said “Whoever changes his religion, kill him.”
For one to be convicted and punished for hadd crimes, the strictest and strongest form of proof is required. Critically, there must be two to four witnesses, depending on the crime. For the majority of haddud crimes, two direct witness are required. However, for the crime of adultery or rape, Sharia law requires four witnesses. Second, the accused must confess. The different schools within Islamic law (Hanbali, Hanafi, Shafi’i, and Maliki) diverge on how many times a confession must be spoken. However, they all agree that a confession is legally required for the death penalty to be legally binding. This confession must come freely from the accused. If the accused were to revoke his confession (for example if it was coerced or forced), a judge cannot invoke the hadd punishment. Insistence on the highest standards of certainty of guilt for hadd crimes is an unquestionable premise of Islamic law.
The second category is Qisas (retaliation). This is an ‘eye for an eye’ situation, typically related to cases involving murder. It refers to the ability of the relatives of the murdered to forgive the murderer, seek financial compensation from them, or demand the murderer’s death. The Koran refers to Qisas in verse 2:138. There are also several hadith on the subject of Qisas, most prominently coming from al-Bukhari. He is a revered historian, who formulated the first thorough compilation of scholarly work on hadith, deciding which actions and sayings could genuinely be attributed to the Prophet.
Finally, there is the category of ta’zir (literally chastisement or castigation). The stringent conditions of proof required to convict a person of a hadd crime means that the vast majority of crimes brought before Islamic courts in the wider world are ta’zir cases. These cases are brought before a judge and all decisions on punishment are at the judge’s discretion. It is important to note that that a judge can impose any punishment in a ta’zir case, except the death penalty. According to the Saudi legal system, the death penalty can only be imposed if one is accused and found guilty of committing a hadd crime.
The Rights of the Accused Under the Saudi Legal System
Numerous additional legal principles and procedures that protect the rights of the accused from the moment of arrest to the trial exemplify the stringent requirement of proof necessary to convict a person of a hadd crime in Saudi Arabia. Among these are three statutes in particular.
The first is The Statute of Principles of Arrest, Temporary Confinement and Preventive Detention (issued on November 11, 1983). This prohibits arbitrary arrest and authorities are not allowed to detain suspects for longer than three days before formally charging them. Second is The Law of Procedure before Shari’a Courts (issued in September, 2001), which grants defendants the right to legal representation. Third is The Law of Criminal Procedure (issued in May, 2002), which protects a defendant’s rights with regard to interrogation, investigation, and incarceration. Further, it outlines a series of regulations that justice and law enforcement authorities must follow during all stages throughout the judicial process, from arrest and the investigation process in particular, to the trial. This law prohibits torture and again protects the right of all suspects to obtain legal representation.
The language of this last law was recently updated in 2013, and the language became more comprehensive in relation to arresting an individual or group. It states that “no person shall be arrested, searched, detained, or imprisoned except in cases provided by law, and any accused person shall have the right to seek the assistance of a lawyer or a representative to defend him during the investigation and trial stages.”
A Divergence between Rhetoric and Reality
Having mapped out the kingdom’s legal system, this author believes that political, not Islamic, considerations motivated many of the 158 executions which Saudi Arabia carried out in 2015. Moreover, these executions showed a disregard for Sharia law and broke the supplementary laws, which the Saudis established.
Although on paper the system is in place to ensure that justice prevails, in practice the opposite appears true. Many of these cases which led to execution failed to meet the high standards set by Sharia law. (This is true with respect to the pre-trial processes, the actual trials, and the decision making for each punishment). It is not a coincidence that the executed individuals belonged to groups which challenged the ruling Saudi monarchy’s legitimacy.
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