In keeping with its Islamic culture which, throughout history, has emphasized the high standing and authority of judges, the Kingdom has made the independence of the judiciary a basic safeguard of the protection of rights and freedoms. It has called for respect for this principle, as embodied in the Basic System of Government, article 46 of which stipulates that the judiciary shall be an independent authority and, in their administration of justice, judges shall be subject to no authority other than that of the Islamic Shariah. A similar provision is embodied in the Statutes of the Judiciary, which contain numerous safeguards concerning the independence of judges and their non-subjection to any influence during their discharge of their official duties. This independence is illustrated by the following:
(a) Non-interference in judicial activities
The Statutes of the Judiciary ensure full protection of judges from any interference in their work so that they can adjudicate in disputes brought before them in a free and independent manner on the basis of the facts and in accordance with the legal and statutory rules without being subjected to pressure from any individual, body or authority. Article 1 of the Statutes of the Judiciary stipulates that, in their administration of justice, judges shall be independent and subject to no authority other than the provisions of the Islamic Shariah and the regulations in force, no-one having the right to interfere in their administration of justice. Article 5 of the Ordinance concerning the Prosecution of Ministers, promulgated in Decree No. 88 of 22/9/1380 H, corresponding to AD March 9, 1961, stipulates that without prejudice to the provisions of any other regulation, anyone who violates the provisions of the Ordinance by, inter alia, interfering personally in the affairs of the judiciary or of governmental bodies and departments shall be liable to a penalty of imprisonment for a term ranging from three to five years.
(b) Irremovability and non-transferability
The fact that judges cannot be removed from office or transferred is an important aspect of the independence of the judiciary and is guaranteed in the Statutes of the Judiciary in order to protect judges from measures that might influence their independence. Article 2 of the Statutes stipulates that judges can be removed from office only in the exceptional circumstances specified in the Statutes. Article 3 likewise stipulates that judges can be transferred to other posts only with their consent, or by way of promotion, in accordance with the provisions of the Statutes.
(c) Appointment, promotion and salaries of judges
In order to provide even more safeguards to ensure the independence of judges, it is stipulated that they can be appointed and promoted only by the highest authority in the country after they have been chosen by the Higher Council of the Judiciary. In accordance with article 53 of the Statutes of the Judiciary, appointments and promotions within the ranks of the judiciary are made by Royal Decree on the basis of a decision by the Higher Council of the Judiciary, in which the statutory requirements are specified in each individual case.
The Statutes also show due regard for the need to ensure that the salaries of judges are sufficient to enable them to meet the requirements of their full-time work. In this connection, they are more privileged than other public officials since their salary scales have been increased on more than one occasion.
(d) Accountability and prosecution of judges
Under the Statutes, the accountability and prosecution of judges are subject to safeguards that ensure their protection and independence. Article 4 of the Statutes stipulates that a judge can be prosecuted only in accordance with the rules and conditions governing disciplinary sanctions against him.
An entire section of the Statutes of the Judiciary is devoted to disciplinary sanctions against judges. Article 73 stipulates that only a plenary session of the Higher Council of the Judiciary is competent to take disciplinary action against judges. This ensures that the executive authority cannot invoke a right to prosecute judges or to call them to account as a weapon or a tool to influence them or place them under pressure, since the Higher Council of the Judiciary, which is the highest judicial authority, is the only body empowered to discipline judges and impose the statutory penalties on those found to be in breach of their duties.
The Statutes make provision for special immunity to protect judges from any underhand measures that might be taken against them. Articles 4 and 8 stipulate that, in cases of flagrante delicto in which a judge is arrested and detained, the matter must be referred, within 24 hours, to the Standing Committee of the Higher Council of the Judiciary, which is empowered to decide whether the judge should be retained in custody or released on bail or without bail. The judge has the right to request the Council to hear his statements when the matter is brought before it. If the Council orders the judge's retention in custody, it must specify the duration of the custody and the above-mentioned procedures must be observed whenever it is deemed appropriate to extend the period of custody approved by the Council. In circumstances other than the above, it is prohibited to arrest, investigate or institute criminal proceedings against a judge without authorization from the Council. Judges who are subjected to custodial penalties must be detained in places separate from those in which other detainees are held.
(e) Prohibition of engagement in certain activities
Under the Kingdom's regulations, judges are regarded as being in a special position in which they must remain aloof from anything that might affect their independence or give rise to doubt or suspicion concerning their impartiality. Accordingly, they are prohibited from combining their judicial posts with engagement in commerce or any function or activity that would be incompatible with the independence of the judiciary. Article 58 of the Statutes of the Judiciary stipulates that: "It is prohibited to combine a judicial post with engagement in commerce or any function or activity that would be incompatible with the independence and dignity of the judiciary. The Higher Council of the Judiciary is empowered to prohibit a judge from engaging in any activity which it deems incompatible with the proper performance of his official duties".
(6) General Principles Concerning Trials in the Kingdom of Saudi Arabia
The Kingdom's judicial system is regulated by a number of general principles designed to enable the judiciary to discharge its function of administering justice in the optimum manner through judgements aimed at ensuring the triumph of right and justice. Some of these general principles govern the administration of justice, while others govern its procedural aspects.
These principles aim to ensure that trials are fair and that accused persons enjoy adequate safeguards at this important stage in legal proceedings.
(a) Equality before the law
Equality before the law is a general principle of trial procedure in the Kingdom. All persons are equal before the law and everyone has a guaranteed right to seek legal remedy, on an equal footing, without discrimination. All persons are also equal before the law in regard to all litigation procedures, no particular group being favored by special procedures. Article 47 of the Basic System of Government stipulates that the right to seek legal remedy shall be guaranteed, on an equal footing, to all citizens and residents of the Kingdom.
Under the terms of article 11 of the-Decree promulgated on 30/8/1344 H, corresponding to AD March 4, 1926, litigants must enter the courtroom in proper succession and must be treated equally in regard to entry, seating and the right to speak and observe.
(b) Exemption from fees
In the Kingdom, justice is dispensed free of charge in the sense that litigants are not required to pay fees or costs in respect of the legal hearing, even if they lose their case. The reason for this is that if litigants seeking legal remedy were charged fees in order to cover the salaries of judges, this would ultimately lead to justice being monopolized by those able to afford it. Hence, exemption from legal fees is a vital requirement that strengthens the principle of equality before the law.
(c) The public nature of hearings
Trials should normally be held in public. This principle is embodied in the Statutes of the Judiciary, article 33 of which stipulates that: "Court-hearings shall be held in public unless the court decides to hold them in camera in order to safeguard morality, family privacy or public order. In all cases, the judgement shall be handed down at a public hearing".
Article 70 of the Administrative Rules of Procedure of Judicial Bodies stipulates that: "Pleadings shall be made in public except in circumstances in which the court believes that confidentiality is required in the interests of morality".
In accordance with article 15 of the Rules of Procedure of the Board of Grievances: "Hearings shall be held in public unless the Division believes that confidentiality is required in the interests of morality or in order to safeguard public order. However, in all cases, the judgement must be handed down at a public hearing".
A public hearing means that anyone can attend and observe the trial proceedings without any restriction other than the need to safeguard public morality or maintain order in the courtroom.
The public nature of hearings undoubtedly increases the confidence of litigants and other persons in the fairness of the administration of justice and constitutes a form of public control over judges insofar as it gives them a strong incentive to be more meticulous and to comply fully with the requirements of fairness and impartiality.
However, since society might be harmed by the public hearing of some cases, the regulations permit the court to hold hearings in camera if such would be in the interests of public morality. A decision to hold hearings in camera means that they can be attended only by the parties involved and their legal counsels, to the exclusion of other citizens. However, in all cases, the judgement must be handed down at a public hearing (art. 33 of the Statutes of the Judiciary).
(d) The oral nature of trial proceedings
The oral nature of trial proceedings is a basic-rule of litigation in the Islamic judicial system and is also one of the general principles governing trials in the Kingdom. In accordance with this principle, the judge's findings must be based solely on the oral proceedings conducted during the hearing. Motions and pleas must be presented orally in the presence of the opposing parties and the court must itself hear the opinions of experts and the testimony of witnesses. The evidence submitted in the case must also be presented during the hearing and the opposing parties must be permitted to challenge it.
Accordingly, the court cannot base its findings solely on the reports containing presumptive evidence or the examination reports. This principle also means that the trial proceedings, even if they are based on written documentation, must be conducted in such a way as to be heard by all the persons present. The judge must not rely on, or deliver his judgement on the basis of, any written evidence unless its content is read out at the hearing. Witnesses must testify in person and the parties must submit their motions and pleas orally.
The oral nature of the proceedings is an inevitable consequence of the principle of public trials. Article 11 of the Ordinance Concerning the Establishment of Islamic Judicial Responsibilities stipulates that one of the functions of the clerk of the court is "to read out the charge against the defendant in the presence of the judge and the two parties, to record the defendant's reply thereto, and to read out and record, whenever necessary, any request for evidence, any testimony and any ruling on a plea". The oral nature of proceedings enables judges to question the parties and hear details of their pleas, thereby ensuring greater impartiality and dispelling any suspicion of favoritism. However, this does not preclude the submission of motions and pleas in written briefs which the parties exchange and examine.
(e) Freedom of defense and argument
One of the important principles on which the administration of justice in the Kingdom is based is freedom of defense and argument; since the provision of a full opportunity for each of the parties to make statements or pleas undoubtedly clarifies matters for the judge and enables him to establish the truth in the case brought before him. Hence, each party has the right to make statements concerning the allegations or pleas made by itself or its adversary. Article 18 of the Administrative Rules of Procedure of Judicial Bodies stipulates that: "The judge must question the plaintiff on any matters needed to establish the validity of his claim before interrogating the defendant. He can neither accept the claim nor reject it as inadmissible before doing so." Article 19 further stipulates that: "The judge shall demand an immediate reply from the defendant. However, if the latter finds it difficult to give an immediate reply due to a need to check his records, have his documents brought to him or draw up a financial statement, he shall be allowed sufficient time, at the discretion of the judge, to do so. In circumstances other than these, an immediate reply shall be required."
(f) Use of the services of legal counsels (lawyers)
The parties have the right to appoint any lawyers whose services they wish to use. These legal counsels are regarded as assistants of the judge since they help him to reach an equitable verdict. This matter is regulated in articles 59 to 66 of the Administrative Rules of Procedure of Judicial Bodies. Article 59 stipulates that: "Every person has an unrestricted right to appoint a legal counsel." Under the terms of article 62, a person wishing to act as legal counsel in judicial proceedings as a permanent profession must hold an appropriate diploma awarded by an academic institution.
In accordance with article 19 of the Rules of Procedure of the Board of Grievance, "In disciplinary and criminal cases, the accused must attend the trial hearings in person and must submit his pleas in writing and orally. He shall have the right to avail himself of the services of a lawyer."
(g) Rapid adjudication of cases
Rapid adjudication of cases means that they must be heard promptly but examined carefully so that none of the parties is harmed by any undue delay in the delivery of a judgement. The Administrative Rules of Procedure of Judicial Bodies stipulate that cases must be adjudicated rapidly if they are of an uncomplicated and clear-cut nature and, therefore, do not require lengthy and painstaking consideration. Although the said Administrative Rules of Procedure stipulate that cases must be heard in proper sequence, it waives this requirement in uncomplicated cases involving travelers and women which need to be settled as soon as possible. Article 75 of the same Rules stipulates that: "The competent court shall hear, and hand down judgement in, cases involving persons detained on certain charges as soon as possible after receiving the case file."
Under article 47 of the Rules, the court is not permitted to keep any case pending for more than one month.
Under article 27 of the Directives Concerning Review of Legal Judgements: "No judgement should remain under consideration for purposes of review, ratification or comment for more than one month."
(h) Conduct of proceedings in the presence of the parties
This is one of the important principles applied in the Kingdom's judicial system. The court is not permitted to base its judgement on a measure taken without the knowledge of the parties or without giving them an opportunity to attend, nor can the court base its judgement of evidence submitted by one of the parties during the hearing without the opposing party having an opportunity to examine it.
The accused attends the hearing without handcuffs but is kept under the requisite surveillance and cannot be removed from the courtroom while the case is being heard unless he causes a disturbance that necessitates his removal.
Article 22 of the Rules of Procedure of the Board of Grievances stipulates that the accused must appear before the Division without handcuffs but must be kept under guard and cannot be removed from the courtroom unless he disrupts order therein, in which case the Division may continue its hearing of the case until such time as the proceedings can be conducted in his presence. The accused must be informed of the proceedings that have taken place in his absence and must always be the last to speak. Article 15 of the Rules of Procedure of the Board of Grievances further stipulates that the Division can hold valid hearings only in the presence of all its members and, in criminal and disciplinary cases, in the presence of the public prosecutor.
However, the public prosecutor is not required to attend juvenile trials, since his presence might make the juvenile ill at ease. Juveniles are tried by a juvenile judge on the basis of the bill of indictment and the juvenile's social report submitted by the institution's social supervisor, which must specify the juvenile's social and psychological circumstances.
It is evident, therefore, that trial proceedings cannot be held without giving the parties an opportunity to attend since the judgement that the court hands down in the case must be based on its findings reached in the light of their statements, pleas and arguments.
Article 37 of the Administrative Rules of Procedure of Judicial Bodies stipulates that: "No judgement handed down in absentia shall be enforceable before its ratification by a review panel. Ratification shall not render inadmissible any evidence that the person convicted in absentia might submit if he eventually appears."
If the accused does not speak Arabic, his statements are heard through an interpreter. Article 36 of the Statutes of the Judiciary stipulates that: "Arabic shall be the official language of the courts. However, if any of the parties or the witnesses do not speak Arabic, the court may hear their statements through an interpreter".
Under the terms of article 13 of the Rules of Procedure of the Board of Grievances: "Arabic shall be the official language used during the judicial proceedings. The statements of persons who do not speak that language shall be heard through an interpreter, the charges against them and their replies thereto being recorded in their language, signed by them, translated into Arabic and again signed by them after being checked by the interpreter". Evidence and documents which are submitted in a foreign language must be translated into Arabic by an accredited translator.
(i) Limitation of jurisdiction
This is a fundamental principle under which the court's jurisdiction is confined to the defendants and to the acts of which they stand accused. The court cannot pass judgement on a person who is not accused, nor can it pass judgement in respect of an act not covered by the indictment.
This principle is based on the fact that the court is an adjudicating authority. Indictment falls within the jurisdiction of the prosecuting authority and, therefore, the court must confine itself to the acts in respect of which the public proceedings were instituted. it must also confine its judgement to the persons against whom the proceedings were instituted and it cannot convict the defendant of an act with which he was not charged since that would prejudice the defendant's right of defense and would deprive him of a legally required stage of criminal procedure.
However, although the court's jurisdiction is limited in this way, it can change the criminal categorization of an act, modify the charge by adding aggravating circumstances and rectify a material error.
This principle does not apply to the offence of contempt of court, which falls within the jurisdiction of the judge. Under article 74 of the Administrative Rules of Procedure of Judicial Bodies, control and management of the hearing are vested in the judge, who is empowered to order the removal therefrom of any litigant or third party who causes a disturbance prejudicial to order and propriety. If the offender persists in his act, the judge may order his immediate detention for a period of up to 24 hours.
Article 16 of the Rules of Procedure of the Board of Grievances stipulates that control and orderly management of the hearing are vested in the President of the Division who, to that end, is empowered to order the departure from the courtroom of anyone disrupting order therein.
If the offender fails to comply or persists in his act, the Division may order his immediate detention for 24 hours or order him to pay a fine of 200 riyals. However, before the closure of the hearing, the Division may revoke the order that it issued.
(j) Substantiation of judgments
This principle means that the judgement must specify the reasons on which it is based. Every judgement convicting a defendant must specify the punishable offence and the evidence and must reply to the pleas and motions made during the hearing of the case.
The requirement that judgements must be substantiated ensures that judges fulfil their obligation to conduct a meticulous examination of cases in order to judge them on their merits in the light of the evidence submitted.
Article 35 of the Statutes of the Judiciary stipulates that: "Judgements must specify the grounds and the legal provision on which they are based".
Article 42 of the Administrative Rules of Procedure of Judicial Bodies stipulates that: "Following the judgement, the court shall issue a brief communique containing a summary of the case, the plea, the replication, the oral testimony of witnesses, the attestations of their integrity, the oaths administered and the substantiating grounds of the judgement ... ".
Article 31 of the Rules of Procedure of the Board of Grievances further stipulates that: "The text of the judgement must specify the grounds on which it is based".
Hence, it is evident that, in the Kingdom's judicial system, the substantiation of judgements is a mandatory requirement with which the courts must comply when handing down their judgements. This is a general requirement that applies to all judgements, regardless of whether the defendant is convicted or acquitted thereunder. This principle enables judgements to be reviewed by higher courts.
(k) Right of appeal against judgements
The judgements handed down by the courts in the Kingdom are subject to judicial review. In principle, an application for judicial review may legitimately be submitted in order to rectify an error that might have been made in a judgement and which would violate a legal or statutory rule.
The Directives Concerning Review of Legal Judgements specify the procedures for the review of judgements handed down by the courts. When a judge delivers judgement in a case brought before him, he must make certain that the parties understand the judgement and must ask the person against whom the judgement was handed down whether he is satisfied therewith. His reply must be entered in the record and signed. If he is not satisfied with the judgement, he is informed of the procedure and deadlines for the lodging of an objection and is given a copy of the judgement. The application for review is submitted to the court that handed down the judgement which, if it finds that a change is warranted., changes the judgement and notifies the parties of the change. If the court is not satisfied with the grounds on which the application for review is based, the application is referred, together -with the case file, to the Court of Cassation for appropriate action.
Judgements imposing criminal penalties exceeding 40 lashes or 10 days' imprisonment are referred to the Court of Cassation for review even if the convicted person has not lodged an objection.
Article 37 of the Administrative Rules of Procedure of Judicial Bodies stipulates that: "No judgement handed down in absentia shall be enforceable before its ratification by a review panel. Ratification shall not render inadmissible any evidence that the person convicted in absentia might submit if he eventually appears".
Criminal judgements handed down by the Board of Grievances are subject to appeal and review. Article 37 of the Rules of Procedure of the Board of Grievances lays down the procedures for appeal against judgements of the Board's Divisions and stipulates that: "In criminal and disciplinary cases, the public prosecutor and the convicted person may apply for review of the judgement before the expiration of the deadline set for such applications".
The President of the Board or his delegated representative refers the application', together with the case file, to the Review Division for consideration and an appropriate decision.
Article 41 of the Rules of Procedure further stipulates that: "A person who is convicted in absentia may apply to the President of the Board or to his delegated representative for a review of the judgement handed down against him within 30 days from the date of his notification thereof".
Under article 42 of the Rules of Procedure: "'If, after the judgement becomes final, facts or evidence come to light which were not known at the time of the trial and which might have led to the acquittal of the convicted person, the latter or the public prosecutor may apply to the President of the Board or to his delegated representative for a review of the final judgement".
(l) Recording of trial proceedings
The recording of trial proceedings is one of the basic principles observed in the Kingdom's judicial system, since the regulations stipulate that trial proceedings must be entered in a special record containing specific details. The record is drawn up by a clerk and its pages are signed by him and also by the judge and the parties to the case. The recording of trial proceedings is important insofar as it facilitates verification of the judge's compliance with the legal and statutory rules that must be applied. A duly established record also ensures that the parties have no opportunity to make false allegations concerning the trial procedures.
Article 12 of the Administrative Rules of Procedure of Judicial Bodies stipulates that: "Lengthy and irrelevant claims, replies and statements made by the parties during the trial shall be summarized, as appropriate, by the judge' entered in the record and signed by him, the original being kept in a special file".
Article 111 of the Ordinance Concerning the Establishment of Islamic Judicial Responsibilities stipulates that the functions of the clerk are, inter alia, "to record and read out the defendant's reply and to record, whenever necessary, any request for evidence, any testimony and any ruling on a plea".
Under article 34 of the Statutes of the Judiciary: "The hearings, including the hearing at which the judgement is handed down, shall be attended by the requisite number of judges. Judgements shall be handed down unanimously or by a majority. Any dissenting judge shall explain the reasons for his dissenting opinion in the record of the proceedings, in which the majority shall also explain their point of view in response to his dissenting opinion.
Under article 21 of the Statutes of the Judiciary: "The record of the hearing shall be entered, for purposes of review, in a special register signed by the president and the clerk of the court".
Article 21 of the Rules of Procedure of the Board of Grievances stipulates that the clerk of the Division must draw up the record of the hearing under the supervision of the President of the Division and must indicate therein the names of the members of the Division who attended the hearing, the time and place at which it was held, the parties, defendants and legal counsels who were present, and all the proceedings conducted during the hearing.
(m) Disqualification of judges
The proper administration of justice and protection of the rights of litigants are guaranteed by the judge's impartiality. Accordingly, the Kingdom's judicial system seeks to ensure this impartiality by prohibiting a judge from hearing a case if there is any reason to question his impartiality.
Article 101 of the Statutes of the Judiciary stipulates that the Rules of Procedure shall specify the cases in which a judge is not permitted to adjudicate.
Article 23 of the Directives Concerning Review of Legal Judgements stipulates that if the presiding or any of the other judges or any person whose testimony is not admissible has handed down a judgement which is under review, he shall not participate in its review, shall not attend the hearings and shall not be privy to the decisions taken therein.
Under article 25 of the Rules of Procedure of the Board of Grievances, the defendant and any other persons concerned have the right to request disqualification of any member of the Division if there is a valid reason therefor. Following the submission of such a request, the hearing of the case must be suspended until the President of the Board has taken a decision thereon, his decision being final. Any member of the Division who has reason to feel ill at ease about hearing a case may suggest his removal therefrom in an application submitted to the President of the Board, who -must decide thereon.
The provisions of the Islamic Shariah, on which the Kingdom's judicial system is based, go even further by prohibiting a judge from exercising his function if he is angry, preoccupied or ill-at-ease, mentally or physically, to an extent that might distract him from giving proper and attentive thought and consideration to a case.
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