JEDDAH, 15 August 2005 — Around the world, DNA testing is being used to solve crimes and establish paternity. Despite the Islamic Fiqh (Jurisprudence) Academy’s approval of introducing it in certain circumstances, Saudi courts remain hesitant about accepting test results as evidence of lineage.
With the increase of paternity cases due to extramarital affairs, illegal marriage contracts or other unfortunate circumstances through which parents are separated from their children, it has become necessary for judges to update their evidence-base and rely on modern scientific methods rather than old applications. However, it seems that many judges are unconvinced that DNA tests are more accurate than a witness or lineage expert stating that “this child is fathered by that man.”
“DNA test results are never accepted in courts here,” Dr. Omar Al-Khouli, a lawyer, told Arab News. “Even when a judge recently accepted the results for a lineage case, he was rebuked by the appellate court and his ruling was overturned.”
Al-Khouli contends that judges approve four proofs: a legal marriage contract, an admission of paternity, two witnesses stating that the child is the man’s (which is applied in the case of a father dying before registering his child) or a method called qayafa where a lineage expert bases his decision on resemblance. “Qayafa was introduced in courts some centuries ago, and even though it is far less accurate than DNA, it is accepted by judges over DNA, which has an accuracy rate of 99.6 percent,” Al-Khouli said.
With increasing cases of Saudi men having illicit relationships or unrecognized marriages, including secret marriages, along with other situations requiring protection of the rights of mothers and children, lawyers face a challenge to bring justice to their clients.
“Some judges are convinced and want to accept the DNA results but the judicial system does not allow it,” Al-Khouli said. “They can use it only to support other evidence.”
There have been attempts by lawyers to approach the Higher Judicial Council, which makes the decisions on judicial ruling standards and procedures, to change the system in light of the Ministry of Interior’s acceptance of DNA tests both as criminal evidence and identification.
“There are attempts, but lawyers are not involved in the decision making process; we can only raise complaints,” Al-Khouli said.
Some judges claim that the reason DNA test results are not accepted is that the Islamic Fiqh Academy did not approve it. However, Arab News contacted the academy and received a copy of their decision made in January 2002 on the issue of the “genetic print” or DNA.
During its 16th meeting, which was held in Makkah, the academy reviewed a committee report defining DNA and specifying ways to benefiting from it. They decided that its results are almost absolute in determining lineage, and it is much stronger than qayafa. The academy concluded that because using DNA results should be conducted in a careful and secret manner, “it is illegal to rely on DNA results in denying lineage. DNA tests should not be used to confirm lineage that are already established. DNA tests can be relied on in proving lineage in the following circumstances: cases of conflict over an unknown lineage of the different kinds of conflict mentioned by scholars; cases of suspicions over newborns in hospitals, child care centers or in vitro fertilization (IVF) babies; cases of lost children in wars, accidents, disasters or unidentified bodies.”
The academy recommended that the government prevents conducting DNA tests except with the court order and that testing be conducted through government labs. The academy also urged that a special DNA committee be established in each country to supervise and approve the results and to put in place mechanisms to prevent any compromises or meddling with the results.
