Saudi legal reforms to follow international norms
During a TV interview last month, Crown Prince Mohammed bin Salman was asked about Saudi Arabia’s ongoing legal reforms — a project he has championed for some time. The project follows international best practices on legal reform, especially regarding clarity, transparency, legal certainty to reduce randomness in judicial decisions, and in seeking consistency and uniformity so that similar cases yield similar decisions.
Trained as a lawyer himself, the crown prince pointed out that there was no point in “reinventing the wheel” in legal reform, stressing that the new laws will also be consistent with Shariah and Saudi Arabia’s interests, and will seek to “preserve the security and interests of citizens and help in the development and prosperity of the country.”
He explained the need for Saudi laws to follow international norms, saying: “If you aim to attract 100 million tourists and create 3 million jobs, and say that you are following something new other than common laws and international norms, then those tourists will not come to you.” Similarly, “if you want to double foreign investments, as we have done… and you tell investors to invest in your country that is running on an unknown system that their lawyers do not know how to navigate nor know how those regulations are applied and enforced, then those investors will just cut their losses and not invest altogether.” And the crown prince added that it is the same with trying to attract creative talents. They will not come to Saudi Arabia if you tell them you have a unique legal system that may not conform to the international norms of lawmaking.
For these reasons, new laws have to be enacted following internationally recognized norms, while being Shariah-compliant and consistent with the public interest. The crown prince dismissed fears that the new laws could pose a threat to Saudi cultural identity, saying: “If your identity cannot withstand the diversity of the world, it means your identity is weak and you need to do without it. And if your identity is robust and authentic and you can grow and develop it, and promote its positive sides, then you will have preserved and strengthened your identity.”
The crown prince had previously revealed some important aspects of the legal reform project. In a statement he made on Feb. 8, he said that Saudi Arabia had spent several years developing its legislative process through the introduction of new laws and the reform of existing ones. The guiding principles for these reforms include ensuring they “preserve rights, entrench the principles of justice, improve transparency, protect human rights and achieve comprehensive and sustainable development, which reinforces the global competitiveness of the Kingdom.” The reforms seek to institutionalize the legislative process and provide clear and precise procedural and subject matter laws.
The crown prince said there were four key texts under consideration: A personal status law (family law), civil transactions (contract law), a penal code for discretionary punishments, and a law of evidence. The four laws represent “a new wave of reforms contributing to greater predictability of court judgments, integrity and efficiency of judicial institutions, and reliability of procedures and oversight mechanisms,” he stressed at the time, adding that that those laws represented the essential cornerstones for fulfilling the principles of justice by clarifying lines of responsibility and reducing variability in judicial decisions.
The reforms seek to institutionalize the legislative process and provide clear and precise procedural and subject matter laws.
Dr. Abdel Aziz Aluwaisheg
According to Saudi Arabia’s legal process, the drafts are first approved by the Council of Ministers and then referred to the Shoura Council for deliberation before being returned for final approval and adoption.
The crown prince pointed out that an absence of written laws had led to some inconsistencies in judicial outcomes and opacity of rules governing cases and practices, leading to lengthy litigation. This has deprived individuals and the business community of clear legal frameworks on which to build their obligations. The legal gaps have also enabled some to evade their legal responsibilities, with “painful” effects on many families and individuals, especially women. This will not happen once the new laws are adopted, he stressed.
He also commented on the chaos caused by discretionary punishments frequently imposed by judges because they don’t have a clear text defining offenses and authorizing punishment. He said that such practices are inconsistent with Shariah, citing a well-known Islamic rule that no punishment may be meted out without a clear written text; the equivalent of the rule of “nulla poena sine lege” in European law, which states that no one is punished for doing something that is not explicitly prohibited by law.
The crown prince revealed another aspect of legal reform regarding defense rights. He cited well-known examples from Islamic tradition dealing with confessions: The Prophet would encourage defendants to change their testimony and seek to find exculpatory circumstances. Instead of applying these traditions, he bemoaned some present-day practices of searching only for inculpatory evidence to ensure conviction.
The four statutes are planned to be issued during 2021 as part of a continuing legal modernization project. They will be consistent with Shariah rules and the Kingdom’s obligations under the international agreements to which Saudi Arabia is a party.
The slow progress of legal reform in the past has impeded Saudi development and now poses a threat to its ambitious Vision 2030 agenda. There have been calls for legal and judicial reform before, but now the Kingdom appears determined to put them in place to “preserve the security and interests of citizens, and help in the development and prosperity of the country,” as the crown prince reiterated.
- Dr. Abdel Aziz Aluwaisheg is the GCC Assistant Secretary-General for Political Affairs & Negotiation, and a columnist for Arab News. The views expressed in this piece are personal and do not necessarily represent GCC views. Twitter: @abuhamad1