INTRODUCTION
Praise be to God, Lord of the Worlds, who created man, exalting him above all his creatures, setting him apart in terms of intellect and freeing him from bondage to other creatures. From his first appearance on Earth, man has dreamed of securing respect for his rights and will continue to cherish that aspiration, enduring extreme hardship and contending with the greatest of difficulties to achieve his purpose. If he succeeds, he will roam the world in search of a better and more fulfilling life. Man is the main subject of concern in both national legislation and international instruments. Constitutions have been proclaimed and regulations adopted to protect him, safeguard his rights and guarantee him a decent life both now and in the future.
The protection of human rights is based primarily on legislation that has a particular bearing on human rights, that is to say criminal procedure and the organization of the judicial system.
This study contains a brief description of criminal and judicial procedure in the Kingdom of Saudi Arabia and of provisions for the protection of human rights during the three well-known stages of criminal proceedings: the pre-trial stage; the trial; and the post-trial stage.
As any discussion of the existing rules, regulations and procedures and the protection of human rights in the Kingdom of Saudi Arabia calls for some familiarity with the legal foundations on which they are based, we propose to describe these foundations in the following introduction.
The Kingdom of Saudi Arabia is the cradle of the message of Islam, the land from which the Islamic call went out, confirming all the messages of the divinely revealed religions, to peoples of every race and color and of all nationalities. It proclaimed the concept of absolute justice with all the associated norms relating to the rights of the individual and the community, starting with principles and values based on respect for the humanity and dignity of the human being and the right to a decent life free from any act of aggression against his person, honor or home. The divine Shariah [Islamic law] proclaims the unity of origin of human beings, that they all belong to a single family united in its worship of Almighty God, and that they are descended from Adam and equal in terms of human dignity without distinction as to race, color, gender, political opinion or social status. No person is superior to another save in terms of piety and good works.
In the words of Almighty God:
The lofty status that human beings enjoy in Islam is unquestionably confirmed by the great importance that it attaches to the promotion and encouragement of respect for human rights. This lofty status of human beings in Islam is based on the belief that Almighty God has exalted them over all His creatures and appointed them as his vice-regents on Earth
("When your Lord said to the angels: I am appointing a vice-regent on Earth").
Since Islam is the last of the divinely-revealed messages, it has established an integrated system for human life, regulating the relationship between human beings, their Lord and their fellow men, laying down principles concerning their rights and surrounding these principles with adequate guarantees to protect them. The rights and freedoms guaranteed in Islam are not viewed as moral exhortations but rather as commands to be obeyed and religious duties to be fulfilled.
The source of human rights in Islam is the Creator of the universe. By virtue of this divine source, human rights in Islam are vested with sanctity and a binding force that turns them into eternal rights which cannot be curtailed, changed or rendered inoperative and the inviolability of which cannot be negated by the will of an individual prepared to relinquish them nor by the will of society as expressed by the institutions that it establishes, since they are divine commands the observance of which constitutes an act of worship.
The following conclusions can be inferred from this:
NOTE: In 1972, the Vatican, the World Council of Churches at Geneva and the European Council at Strasbourg organized a symposium, attended by a team of eminent jurists from the Kingdom of Saudi Arabia and a team of eminent European legal scholars, at which it was acknowledged that Islam accorded high status to human rights and had preceded all contemporary laws in this regard.
In Islam, human rights are sacrosanct and any violation thereof constitutes an offence. Accordingly, Islam prescribes penalties in order to protect these rights from violation. The Islamic criminal code makes provision for two types of penalties:
The purpose of these penalties is to protect the fundamental interests of society. All divinely-revealed laws are in unanimous agreement that these interests must be safeguarded in the five vital fields of religion, person, mind, progeny and property, since a decent human life cannot be sustained unless these are protected from violation.
By virtue of this classification of offences on the basis of certain rules, some of which are fixed while others vary with changing times, the Islamic penal code has established a balance and applies clearly defined criteria concerning crime-and punishment.
The particularities of the hudud, which distinguish them from other penalties, can be summarized as follows:
a) Their nature and extent are fixed and cannot be changed, reduced or increased since they are divinely ordained penalties and, therefore, cannot form the subject of analogical reasoning or further interpretation by a judge or by a human legislature promulgating positive law.
b) The Islamic Shariah narrows the scope of application of the hudud in three ways:
(i) It requires evidence of the commission of the offence, which can be proved only through the testimony of witnesses (four witnesses being needed in some cases) or through a confession by the offender, which must be maintained until the judgement is carried out. If the offender retracts his confession before or during the enforcement of a hadd penalty, it is halted and replaced by another discretionary penalty if the conditions therefor are met.
(ii) It restricts the hadd penalties to offences constituting violations in any of the five above-mentioned vital fields.
(iii) It stipulates that hadd penalties cannot be imposed if there is any doubt concerning the offender's guilt.
In the case of the more severe hadd penalties, the Islamic Shariah takes due care to impose conditions that it is virtually impossible to meet. As a result, throughout Islamic history, some hadd penalties have been imposed only very rarely.
The nature and extent of the discretionary penalties, which are not fixed but are determined by the judge in the light of the circumstances of the offender and the offence, can be varied in accordance with the criteria of time, place and interest. In this regard, the discretionary penalties provided for in the Islamic Shariah are consistent with the most modern theory in criminal jurisprudence under which the penalty should be tailored to the offender.
According to the principles of the Islamic Shariah, crime is an anomalous and abnormal phenomenon. Hence, the absence of crime is the norm, such absence being a certainty that can be negated only by a similar certainty and not by doubt. On this basis, the jurists have inferred the presumption of innocence, i.e., non-liability to punishment. In conformity with the principle of the presumption of innocence, any doubt should be interpreted in favor of the accused, since it strengthens this principle. Convictions must be based on absolute certainty in the light of the evidence presented, with which the judge must be satisfied. Consequently, in the Islamic Shariah, presumption of innocence is the fundamental principle in criminal proceedings.
The judgements handed down by the Kingdom's judiciary are derived from Islamic law, to the study, deduction and codification of which successive generations of theologians and jurists have devoted themselves for fourteen centuries in order to establish theories, principles, rules, regulations and a sound jurisprudential heritage that has contributed significantly to the progress of international criminal jurisprudence. In this connection, it is noteworthy that, at their conference held at The Hague in August 1938, jurists specialized in comparative law decided that Islamic jurisprudence formed an appropriate basis for legislation. The conference decided, inter alia, that:
In the final report on the work of the international conference organized by the International Institute of Higher Studies in Criminal Sciences in Italy in 1979 to discuss the question of the protection of human rights in the Islamic system of criminal justice, the participants in the conference noted that the provisions and spirit of the Islamic Shariah were consistent with the basic principles of human rights as set forth in international law.
Since the Kingdom has adopted Islam, in word, deed and belief, as its mode of life, its society is based on firmly established principles derived from the provisions of divine revelation, which still constitute the cornerstone of Islamic civilization. Its system of government is based on justice, consultation, equality and a desire to ensure the proper application of the Islamic Shariah in all its aspects. This is embodied in the Basic System of Government, under which the State bears the primary responsibility for the protection of human rights in accordance with the Islamic Shariah. Accordingly, the Kingdom's authoritative source of reference in regard to human rights standards is found in its Constitution, namely the Book of God and the Sunnah of the Prophet. The Kingdom's Basic System of Government contains the principal guarantees of human rights, since it stipulates that: the State shall protect human rights in accordance with the Islamic Shariah (art. 26); no-one may be arrested, detained or restricted in his freedom of action except as provided by law (art. 36); homes are inviolable and may not be entered without permission from their occupants, nor may they be searched except in the circumstances in which such is permitted by law (art. 37); punishment is personal, there is no crime or punishment except as defined by law or regulations and penalties may be imposed only in respect of acts committed subsequent to the entry into force of the instrument under which they are designated as offences (art. 38); telegraphic, postal, telephone and other communications shall be confidential and shall not be censored, delayed, inspected or overheard except in the circumstances in which such is permitted by law (art. 40); 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 (art. 46); and the right to seek legal remedy shall be guaranteed, on an equal footing, to all citizens and residents of the Kingdom (art. 47).
The Kingdom of Saudi Arabia, being inspired by its Islamic Shariah, is extremely eager to ensure that the legislation that it promulgates to regulate criminal proceedings and develop the procedures applied by its judicial bodies guarantees that no one can be subjected to punishment except in accordance with clearly defined and just procedures that must be observed by the bodies responsible for the investigation of offences and the identification of their perpetrators in such a way as to establish the full truth, without any shadow of doubt, so that no innocent person can be harmed as a result of an arbitrary decision and no criminal can escape justice through laxity or negligence. In this connection, in the year 1396 H (AD 1950), the Kingdom promulgated the Statutes of the Directorate of Public Security, which regulate arrest, detentions search and criminal investigation procedures. Moreover, in keeping with the Kingdom's developmental trend in all fields, an independent authority known as the Public Investigation and Prosecution Department has been established to investigate and prosecute offences, control and inspect prisons and places of detention, and supervise the enforcement of judgements.
The Kingdom is currently reviewing many of its old regulations, which are being amended in a manner consistent with its development in all fields. In this connection, the draft codes of criminal and civil procedure and the draft code regulating exercise of the legal profession, which, God willing, will soon enter into force following their approval, constitute a highly significant development in criminal procedure in the Kingdom of Saudi Arabia and clearly express the attentive concern that the Kingdom is showing for the internationally recognized principles of human rights which are consistent with the Islamic Shariah.
The Kingdom of Saudi Arabia, being committed to the noble aims and purposes of the protection of human rights and human dignity, regards them as part of the principles and values in which it believes. The Kingdom holds the view that respect for human rights, in both theory and practice, is a lofty objective which places all States and international organizations under a heavy responsibility to fulfil all their obligations in this regard in a spirit of cooperation and understanding- based on respect for the beliefs and particularities of civilizations, which will be highly instrumental in promoting concern and respect for human rights and will help to enrich the lofty concepts, principles and values of those rights.
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