Legal protection of human rights during the pre-trial criminal proceedings in Saudi Arabia has gained relevance in the recent past1. The need to protect the accused person during the pretrial proceedings is an essential aspect of the protection of human rights. This is because the law of this country presumes one to be innocent until proven guilty by a court of law. For this reason, such a suspect should be treated as an innocent person without any form of intimidation2. The Kingdom of Saudi Arabia has laws that help in the protection of human rights during pretrial proceedings. These laws are contained in the constitution, statutory laws, regulations, and the common law (Sharia). However, the research confirms the fact that the existing laws are not sufficient and efficient in protecting human rights during the pretrial criminal proceedings in this country. Some loopholes may allow policy implementers to violate the human rights of the accused. The best solution would be the legislation of laws that would clearly govern the pretrial proceedings concerning human rights.
Background of the research
Human rights protection has gained a lot of relevance today. It has taken a long journey to reach the current position where human rights are given priority in various countries around the world. For a long time, government administrations have abused their power by physically abusing their subjects suspected to have committed a specific crime. According to the English common law, a suspect would be perceived innocent until proven otherwise3. It is important to understand the spirit and letter of this law. It is clearly spelled that authorities should treat a suspect as an innocent person until a law court proves otherwise. The spirit of this law is very clear. It is common to find scenarios where one is innocent of the crime he or she is accused of committing. In such cases, it would be important to ensure that the suspect is not molested of a crime not committed. This law is meant to protect the right of the individual while still considered as a suspect so that when such an individual is declared innocent, he or she may not complain of molestation.
Many governments have ignored this right for a long time. Scholars have reported cases where government officials in various countries use physical pain in order to get a confession from the victims. The United States is one of the countries that have been identified as leading in the abuse of human rights of their suspects. This is especially so in their Guantanamo bay detention camp. There are various other countries that are also known for putting their victims under torturous processes in order to get the desired confessions from them. This act of forcing a confession out of the suspect is going against the international convention on human rights. Although a number of local, national and global agencies have come up to support human rights. There are reports indicating that there has been a general drop in the physical torture of suspects during the pretrial stage4. Despite the positive image that is created by this drop, it is important to note that the abuse of these suspects during the pretrial process still exists in various countries. Cases of suspect torture are common in various parts of the world, despite the well-developed bodies mean to fight such abuses on human rights.
Saudi Arabia is one of the countries that have been identified as nations where the human rights of the suspects during the pretrial proceedings are not keenly observed. In this country, about two decades have passed since the first legislative move to establish a lucid modern criminal procedural system was established. Several statutes were enacted thereafter, and a number of governmental institutions were funded as a way of developing policies that would help protect human rights principles and standards during criminal procedures. In 1989, the Bureau of Investigation and Prosecution Act was enacted mainly to limit the authorities that were given to the executive in the country. This statute has for the first time, separated the powers to investigate from that of prosecution. These two powers were totally held by the executive authorities through the Public Security, and the Bureau for the Promotion of Virtue and Prevention of Vice5. In 1992, the Basic Law of Governance was enacted to give people a documented acknowledgment for their rights as citizens or residents of this country and to impose some duties as well.
The Code of Law Practice had its turn to contribute to the establishment of the modern legal system in spite of the mass resistance from some radicals for the establishment of an institution that would allow lawyers to practice within this country, as some of the leftists considered it a taboo. These efforts continued, and 10 years later, the Criminal Procedure Law (CPL) saw the light of the day. It helped lay the foundation for a modern criminal procedural system that was mere interesting literature before. Eventually, in 2004, a royal decree authorized the establishment of the National Society for Human Rights to pursue several purposes, one of which is to work on the promotion of human rights in accordance with the BLG6. These laws are derived from the Qur’an and Sunnah, in accordance with the applied domestic laws, along with what is embodied within the Declarations and Conventions of Human Rights. They were issued by the Arab League, the Organization of Islamic Cooperation, and the United Nations and its agencies and specialized committees, so long as they do not contradict Islamic Sharia.
Conducting research requires one to have an understanding of the problem upon which the research will be based. The research problem helps in focusing the research on what is to be carried out. It also helps those consuming the material know what it seeks to investigate. This research focuses on human rights issues during the pretrial proceedings in the Kingdom of Saudi Arabia7. The huge efforts made by the Saudi government towards enhancing human rights during the pretrial of criminal proceedings are notable8. There is a huge difference between what is happening now, and what the case was in the era preceding the enactment of the Criminal Procedures Law and the existence of the Bureau of Investigation and Prosecution9.
Thirteen years have passed since the enactment of the Criminal Procedures Law, the last statute that overlaps with the protection of human rights during criminal proceedings. However, in lieu of celebrating a modern criminal procedural system, there were some disappointments. Many provisions contained in the new legislated laws show intent to adhere to the international and regional human rights standards and to keep pace with modern human rights protective systems. However, this intent, unfortunately, produced weak legal protection that fall below the acceptable standard. No one may claim that there is a model standard for perfect legal protection. There is a minimal standard for effective legal protection that can be learned from the experiences of the other advanced legal systems in other nations that is still higher than what is offered in Saudi Arabia.
Several shortcomings exist among the relevant legislations to the protection of human rights during the pretrial criminal proceedings; causing ample obstacles in the face of the promotion of the protection of human rights. With the existent shortcomings in the legislation, the legal protection seems incapable to accomplish its goal in promoting the protection of human rights during the pretrial criminal proceedings. Particularly to the scope of this study, the Saudi offered legal protection for the rights to privacy and physical liberty during the pretrial criminal proceedings are insufficient, and inefficient to protect them. The incapability of the current legal protection has caused the protection to appear as a phantom causes the human rights to be unreasonably sacrificed, and violated, and thereafter having a nominal chance of being justly remedied. It is also apparent that the continuance of such a problem gives an undeniable message to the people that the law is unable to protect their human rights during the criminal proceedings, and that the decision-makers are indifferent to their rights. This means that the prestige of law would disappear, and would be replaced by distrust in law. Eventually, the individuals would turn back to their instincts, doing whatever possible- even if harmful and unlawful- to protect their natural rights by themselves without waiting for the protection of the law.
The quality of the relationship between the government and its citizens is dependent on the people’s ability to enjoy their rights with the protection of the law. Where the law does not protect the rights of the citizens and no accountability is posed on the perpetrators of crime, hatred towards the government is unavoidable. This may contribute to ground for unhealthy and non-productive acts within the society10. More importantly, Saudi Arabia is in actual need to produce excellent and comprehensive legislation for the protection of human rights in order to limit the non-compatible judgments that are based on individual interpretation of the Sharia with no statutory law in play. For instance, if the right to privacy is illegitimately violated during the pretrial criminal proceedings, the unclear remedial system in Saudi Arabia opens a non-closable door for disagreement within the judicial system on whether to punish the governmental perpetrator, invalidate the violating criminal procedure, or compensate the victim. The legal protection system for human rights during the pretrial criminal proceedings must be legislatively reformed to guide the judges to rule in a consistent manner11.
It is undeniable that the legislation is not the only organ responsible for promoting and protecting human rights during the pretrial criminal proceedings in a country. The mentality, education, and training of the law enforcement officers, the awareness of the people about their rights, and the cultural norms in society all play part in promoting the protection of human rights in a country12. All departments of government hold a share in promoting and protecting human rights. However, the constitution and legislative human rights framework that reflects the international human rights standards are the most fundamental elements in the national human rights promotion and protection system. Moreover, the researcher has given several reasons that make it relevant to approach the problem from a legislative perspective.
First, the researcher came from a legal background, because of his career as a legal trainer and consultant in the Institute of Public Administration in Saudi Arabia. Due to this legal background, the deficiencies in the laws relevant to the protection of human rights during the pretrial criminal proceedings appeared to him clearly as the major cause. n other meaning, the existence of legislative shortcomings in the legal protection system per se might cause the same problem even after providing due education about the human rights norms, and training the law enforcement officers, or establishing the perfect national human rights institution. Hence, reforming the national legislation with the intent to promote human rights protection during the pretrial criminal proceedings is the most important step in this stage. The Basic Law of Governance (BLG) is not providing the due constitutional law for the individual’s rights. The Criminal Procedures Law (CPL) on another level is imported literally from another national system without being properly adjusted to fit in a different criminal procedural system13. Moreover, the CPL is lacking clarity and efficiency in using preservative rules for the rights, and details to accomplish its partial role in protecting the accuser’s procedural rights. Even the valuable heritage of the Sharia principle is not being made malleable to confer its protection14. In addition, the legal remedies for the rights violations are inefficient and insufficient to perform its deterrence function.
Second, by virtue of the academic career, the researcher was assigned to provide training courses to investigators and law enforcement officers from different governmental entities. These courses granted the researcher a good opportunity to get very close to the minds and hearts of the governmental officials who enforces these laws. That close attachment has frequently introduced him to several aspects of deficiency in the operating laws for the criminal procedural system and the legal context where the laws apply. It also revealed to him a very rooted indifference in the minds of the law enforcement officers towards the people’s rights, because of the weakness of the existing laws in preventing and deterring the violations of the rights15.
Third, seeking the promotion of the protection of human rights nationally through reforming the national legislation is more practical than pinning hopes for reforming cultural and long-term root ideas, behaviors, mentalities, and awareness. The recent legislation opened the door for further legislation. In the same vein of practicality, changing the laws is faster than changing the culture and mentality of those who are enforcing the laws. Moreover, if changing the laws resulted in ineffective laws, then the culture and the mentality would eventually be transformed to the desired status as a second impact for the reformed laws. Finally, given the violation would never constitute a violation in absence of law makes certain acts that should be considered unlawful, lawful before the existing laws Mohamed, & Altattawor, 1997).
Research questions and research hypothesis
Conducting research is a complex process that involves searching for information that would respond to the issue under investigation. Researchers have reported that it is always very easy for one to sway from the main research if there are no clear guidelines to help in the data collection process. One would always encounter various interesting information, most of which may be irrelevant to the research. The research question, therefore, helps in ensuring that the researcher does not lose focus on the main issue under investigation. It acts as a guide that helps the researcher in collecting relevant primary and secondary data. The following are some of the research questions that the researcher wishes to respond to by the end of this research.
Are the rights to privacy and physical liberty legally protected during the pre-trial criminal proceedings? If so, how?
To what extent is Saudi legal protection compatible with the regional and international standards?
To what extent is Saudi legal protection comparable to American legal protection?
What are the deficient aspects and shortcomings in the current legal protection of these two rights?
How can legal protection be improved in this country?
The research hypothesis helps the researcher visualize the possible outcome of the research. The primary data analysis is always meant to confirm or refute the hypothesis set by the researcher. Below are some of the research hypotheses that the researcher set for this study. The first three hypotheses below were set with the belief that the legal system in Saudi Arabia offers protection for the right to privacy and physical liberty during the pre-trial criminal proceedings, but it is incapable to preserve the rights.
H1o. The rights to privacy and physical liberty are not recognized adequately in a preservative manner.
H1a. The rights to privacy and physical liberty are recognized adequately in a preservative manner.
H2o. The current legal protection is not taking advantage of the role of the prophylactic and preservative rules in promoting the protection.
H2a. The current legal protection is taking advantage of the role of the prophylactic and preservative rules in promoting the protection.
H3o. The needed remedies to enforce the rights deter their violations of the rights and compensate the victims are not being employed sufficiently, effectively, and within the legal protection system.
H3a. The needed remedies to enforce the rights deter their violations of the rights and compensate the victims are not being employed sufficiently, effectively, and within the legal protection system.
The following two hypotheses were based on the premise that the offered legal protection in Saudi Arabia for the rights privacy and physical liberty during the pre-trial criminal proceedings is uniquely incapable to perform its anticipated role.
H4o. The legal protection in Saudi Arabia is not compatible with international and regional standards.
H4a. The legal protection in Saudi Arabia is compatible with international and regional standards.
H5o. The legal protection is not comparable to a selected comparative model- the American legal protection.
H5a. The legal protection is comparable to a selected comparative model- the American legal protection.
Significance of study
Conducting successful research is an expensive venture that consumes both time and financial resources. For this reason, there should be a valid reason for conducting any research. The outcome of the research should have a positive impact on people by positively influencing policymakers and other relevant stakeholders. During the researcher’s career as a professor and trainer specializing in the criminal procedures field, he was vacillating between uncertainty and doubt regarding the authenticity of the offered legal protection of human rights during the criminal proceedings in Saudi Arabia.
The reality was always showing incapability in the laws that carry the legal protection. Thus, claiming that our laws protect human rights during the criminal proceedings, just because some of the rights are enshrined therein was always sounding inappropriate to describe the situation. The deficiency in the legal protection of human rights- particularly the rights to privacy and physical liberties- in Saudi Arabia is there and clear to anyone in the society, either educated or not. Therefore, a personal desire was triggered to know what is missing or shortcoming in our laws to provide efficient legal protection for human rights during the pretrial stage of the criminal proceedings. Thus, the study has a personal significance for the researcher to expand and deepen his knowledge in the topic of the study, and to enrich this field.
The legislative efforts are still in progress and several committees have been working on reforming the Criminal Procedures Law and its executive regulation16. The result of the study – is considered by the Saudi legislature when reforming any of the laws that overlap with the human rights protection during the pretrial criminal proceedings – would contribute to the promotion of the protection of human rights. Actually, the study must be considered, because the continuance of the legislative efforts on the same current rhythm would never promote the protection of human rights during the pretrial criminal proceedings. The legislations pursuing effective legal protection would have to look beyond the recognition of the rights to the possibility of its violation. The legislative tactic has to be adjusted to walking through three tracks: sufficiently recognizing the right, establishment of preservative rules or sub-rights, and effectively remedying their violations. Thus, the study would articulate the weaknesses in the current legal protection particularly of the rights to privacy and physical liberty, and suggest the recommendations that would help fill the gap.
The researcher is a faculty member in the Institute of Public Administration and therefore, is routinely assigned to teach, train, consult, doing researches with governmental entities. By virtue of the career position, touching the hearts and the mind of the decision-makers and having an influence over their conception is quite possible. The researcher, therefore, has the capacity to make a change even if the report may fail to reach the legislators. This can be done on two fronts. First is an indirect path of influence. The law drafters, technically, are mere governmental employees who are mandatorily required to attend a number of training, educative, and workshops hours at the IPA annually. They can be influenced during such workshops. The second path of influence may be accomplished through participating of the IPA’s members in governmental committees to draft and develop law proposals and to provide studies or consultations in several legal concerns that may involve the contexts of criminal procedure in one way or the other.
Although this study would be narrowed to examine the legal protection of the rights to privacy and physical liberty during the pretrial criminal proceedings, the study’s data analysis results would be helpful for other scholars who intend to conduct further researches regard the legal protection of the other human rights involved during the criminal proceedings. The study is aiming to clarify some general issues that contribute to the incapability of the legal protection that is involved within the protection of any right such as the barriers in the legal system, and issues related to the remedial system as a deterrent tool. Other scholars may find the recommendations of this study some facts that may be beneficial in the development of their own research. It is factual that there is a shortage of information about the legal topics in Saudi Arabia especially those that are concerning the field of criminal procedures and the domestic legal protection of human rights17. Most of the legal literature in the field is either adjusting the Egyptian legal principles to fit into the Saudi’s or are merely descriptive studies and therefore, add minimal values to this field. Thus, this study is anticipated to provide a significant contribution to all law professors and researchers interested in the field of criminal procedures, legal protection of human rights, and remedies.
Finally, besides the positive laws as a source for the protection of human rights in Saudi Arabia, the protection of human rights and the judicial system, in general, is heavily dependent on Islamic Sharia law18. Understanding Sharia law is may not be a simple process for a layperson. This study- through focusing on the protection of the right to privacy and the right to physical liberty during the pre-trial criminal procedure under the Sharia- would give the layperson due to knowledge to understand and stand for his right and to claim the appropriate legal remedy19. In the same vein, this study may help law enforcement officials of the Saudi government to comprehensively understand the applicable laws to the rights to privacy and physical liberty during their work in enforcing the laws, and to deter the possible violating of these laws.
Aim and objectives of the study
It is always important to clearly state the aims and objectives of a research study. It helps in determining the level of success of the study upon its completion. It would be easier to measure the results of the study against the measures that were set, and then determine the level of success achieved. This study is formulated to serve the ultimate aim of paving the way for capable legislations to promote the protection of human rights during the pretrial criminal proceedings in Saudi Arabia. Thus, two main objectives have to be sought by this dissertation. The first is, to examine the sufficiency and efficiency of the current legal protection in the Saudi legislations for human rights during the pretrial criminal proceeding stage through taking the legal protection of the rights to privacy and physical liberty as case studies. The second objective is to provide possible legislative solutions in order to promote the protection, particularly, of the two studied rights.
Pursuing the first objective requires the pursuant of other several objectives. The first one is, to identify the shortcomings in the current legal protection of the rights to privacy and physical liberty during the pretrial criminal proceedings in Saudi Arabia. The deficiencies in the current legal protection system of human rights during the pretrial criminal proceedings in Saudi Arabia are not a mere hunch. Actually, it is predictable, observable, witnessed, and alleged by several scholars, and activists around the world. Many arguments and sources would be shared throughout to study to illuminate the deficiency in the current legal protection of the two studied rights. Reporting violations is the worst way to prove the shortcomings in the laws. It is important to provide solutions because the occurrence of violation requires the legislative establishment. When a right is not established legislatively on a domestic level, what is seen according to the standards of the international law and some other comparative national laws as a violation is never a violation under the Saudi domestic laws. Moreover, the occurrence of a violation for any right does not measure the sufficiency of the legal protection in a legal system, because it serves many other purposes besides deterring the violation.
In articulating the shortcomings in the current legal protection, the study demands the performing of a comprehensive examination for how the applied laws in Saudi Arabia protect the rights to privacy and physical liberty- as case studies for the general human rights protection- during that stage. Therefore, how each right is legislatively recognized is a task in this study, prophylactic rules which are provided are another task, and the available legal remedies in response to the rights violations are the final task. In addition, to get some light on the deficiencies and solutions, the study discusses narrowly the compatibility of the Saudi legal protection with the international, and regional standards, and its comparability to the legal protection offered by the United States of America as an advanced and expert model.
As for the second objective, the researcher intends to point out the possible solutions to overcome the shortcomings found in the legal protection system for each of the studied rights speculatively based on the results derived from achieving the first objective. The limited comparison study with American protection plus what is observed in the Saudi legal protection would place the researcher in a better position to understand what the Saudi legal protection lacks to reach excellence20.
The limited comparison study has no intent to blindly imitate or import the American legal protection. The American legislation on this issue may not be the best in the world. Individual liberties, specifically the right to privacy are not at their best status following the September 11 terrorist attack. Additionally, it is clearly known and is appreciated by the researcher that Saudi society is built on the principles of Sharia, and any western product or idea would have to be imported carefully after Islamic testing. However, if the western ideas or rules were useful, and were not contradict Sharia’s norms, then there is no doubt that their implementation in our domestic laws would be easy and welcomed. The intellectual property and trade names are examples of many fields that are now regulated by domestic laws but were mostly imported from the United States of America laws because they do not contradict the Sharia principles. For example, the calling for the adoption of rules during the pretrial criminal proceedings such as the Miranda warranting, the initial appearance in court after arrest, or the writ of habeas corpus to review the legality of detention may never sound contradicting with the Sharia laws. Below are the objectives of this study.
- To determine how the Saudi legal system, protects the rights to privacy and physical liberty during pretrial criminal proceedings.
- To find out how the applied laws, including the Sharia, recognize the rights under study.
- To find out to the extent to which the applied laws have established preservative or prophylactic rules for the recognized rights.
- To find out what legal remedies are offered by the applied laws including the Sharia if the rights have been violated.
- To analyze the efficiency of the current legal protection in achieving its presumed goal
- To sort out the shortcomings that exist in the current legal protection system of the right to privacy and physical liberty during pretrial criminal proceedings.
- To determine how to overcome the deficient aspects that exist in the current legal protection of the studied rights through the provision of helpful recommendations for the system improvement.
The Scope and limitations of Study
Defining the scope of a study and its limitation is very important to individuals who may consider using the report. Depending on the scope of data collection, a given report may be relevant to a given degree, and its consumption should not go beyond that particular degree. Policymakers and other users of this material should understand that the primary data in this research was collected within the Kingdom of Saudi Arabia. The main concern of the study is the legislative promotion of the protection of human rights during the pretrial criminal proceedings in Saudi Arabia. This study is not alleging that there is only one angle for solving the problem in the Saudi protection of human rights. Many disciplines have shares in promoting the protection of human rights in the country. Education, ethical norms, religion, culture, administration, politics, and technology may contribute to the enhancement of the protection of human rights21. However, this study is focused on the legal protection of human rights. Thus, the study examines every source for the legal protection of the studied rights. It is a fact that the current law recognizes a right, provides a prophylactic rule, or provides a legal remedy.
It is important to note that factors that may constitute human rights are countless, but the scope of this study is limited to the rights to privacy and physical liberty as case studies for the protection of human rights. Human rights are involved in every aspect of our life. However, this study is limited to human rights in the stage of the pre-trial criminal proceedings. Finally, the setting of this study is purely Saudi Arabia, but some purposeful references to another country’s version of the legal protection are helpful in order to serve the main objective of the study in finding the deficiencies and to suggest reformative solutions for the status of the legal protection in Saudi Arabia22.
Thus, it can be said, the protection of human rights is studied within four boundaries are stated below:
- The legislative promotion,
- Pretrial criminal proceedings,
- Saudi Arabia, and
- Rights to privacy and physical liberty
Like any other study, there is a trap of limitation. The limitation of this study appears in the difficulty of agreeing on a legal protection standard that is perfect, efficient, and sufficient. In other words, the study of the legal protection of the rights to privacy and physical liberty during pretrial criminal proceedings may need a general theory of how the legal protection of human rights functions and how it could become efficient and sufficient may only result in speculative recommendations. However, legal reformation does always stand on the ground of scholarly recommendations and the other country’s experiments. Actually, that is the aim of the study. The study would analyze the problem, examine a leading comparative legal protection system, and come up with reformative recommendations.
Another unavoidable limitation is the involvement of other disciplines in the problem of the study. Many social, cultural, political factors are overlapping with the promotion of the protection of human rights that may hinder perfect legal protection from achieving its goal23. The study may never result in a final solution for the problem of the legal protection that is practicable to whatever circumstances and legal environment. Nevertheless, this study addresses the legal part of the problem of protection of human rights, which may composite a part in a comprehensive solution involving researchers from all disciplines.
Another limitation lies in the incapability of the study, which is limited to the legal protection of the rights to privacy and physical liberty during pretrial criminal proceedings to result in a transferable solution applicable to all human rights during the pretrial criminal proceedings. Such a limitation is inescapable since each right has its own nature that identifies the suitable legal protective mechanism. For example, the criminal remedy is not an appropriate tool to protect aright like the rights to counsel, while it is very suitable to protect the rights against torture24. However, this study would pave way for further researches involved in human rights during pretrial criminal proceedings such as the right to counsel, the right against compulsory self-incrimination, and against torture.
Every research applies a specific research method. The method used in this research is compared closely to the method used in the research proposal. This dissertation is trying to provide answers in an analytical and argumentative way as to why the recent legislations in Saudi Arabia are insufficient in promoting the protection of human rights during the pretrial criminal proceedings, and how to improve this legal protection. The case study might be the suitable design for such a study that strives to answer why and how questions. First, the study undertakes to describe comprehensively the offered legal protection for each of the studied right during the pretrial criminal proceedings in Saudi Arabia by scrutinizing all of the relevant applied laws to the protection. The applied laws are contained in the constitution, statutes, regulations, and Islamic Sharia Law.
Thereafter, the described legal protection is analyzed in order to identify the therein deficiencies and shortcomings that impeded the promotion of the actual protection. The analysis of legal protection is directed from three dimensions. The first dimension is the recognition of the right. This dimension will direct the analysis to focus on the adequacy in the legislative recognizing and framing of the right within the domestic legislation. The second dimension is the efficiency of the legislative usage for preservative and prophylactic rules for the rights. Within this dimension, the analysis is focused on the hired rules and procedures in the criminal procedures law to guarantee the studied rights during the pretrial criminal proceedings. The third dimension is the remedial one. This dimension directs the analysis to focus totality on the sufficiency and efficiency of the offered remedies as an essential component to promote the protection of the rights.
Within each dimension, a discussion about the capability of the national legislation to reflect the international and regional human rights standards, and the comparability of the Saudi legal protection with the American legal protection as an advanced and leading system is conducted when needed. Indubitably, no perfect legal protection might be used as a model to gauge how legal protection must look like exists. However, a leading advanced comparative legal protection system in other countries that may aid in illuminating the deficiencies and the possible solutions in the legal protection in the Saudi legal system exist. Moreover, there are minimally required standards enshrined in the international and regional instruments that are scholarly provided for promoting the protection of human rights. Implementing them in the domestic laws would definitely aid the promotion of the protection of human rights. Thus, the researcher employs a limited comparison study with the legal protection in the United States of America, and the international and regional standard for the protection of the rights under study in order to speculate what might be missing in the Saudi legal protection version that causes its incapability.
Moreover, in some topics, discussions are provided about the systematic barriers such as, situations, and practices that hinder the rights from benefiting from a textually established legal protection. Finally, after describing, and thoroughly analyzing the status of the current legal protection, a list of legislative recommendations is provided as legal solution for the problem of the study. Multiple works of literature, legal journals, books, and documents are utilized throughout the study in order to support the given analysis or proposition regarding a deficient aspect in the current legal protection or for finally offered recommendations.
The Legal Background for the Study
The legal protection
The legal protection as meant here within this study refers to the domestic legal provisions within several applied laws that contribute to the protection of human rights during the pre-trial criminal proceedings. Thus, legal protection is built up by several legislative provisions from all sources of law such as the constitution, statutes, or common law (Sharia). There is no one mere form for contribution to the legal protection. The contribution may take the form of recognizing the rights, establishing a preventive or preservative rule for the right, or remedying the violation of the right. It is preliminarily presumed by the researcher that effective legal protection of a right has three components, which include right, preservative rules, and remedies. Then, the deficiency of any would result in deficient protection. To the much that a defendant needs legal recognition for his or her right, he or she needs preservative or prophylactic rules for the rights, and remedies for their violations. Analogically, the relationship between a right, a prophylactic rule, and a remedy may match the relationship between a shield, and an extra layer of shield, and a sword. Recognition of any right gives a shield, establishment of prophylactic rule adds an extra layer to the shield, and the remedy is the sword.
The Basic Law of Governance
The Basic Law of Governance (BLG) is a superior law in the Kingdom of Saudi Arabia. However, it is disclaimed to be the Constitution of the country by its own words, although some scholars prefer to call it ‘constitution-like’ as it recognizes number of rights, and imposes number of duties for individuals and the state. In its very first sentence it states, “God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution.”
The Sharia Law
Sharia as a source of law in Saudi Arabia is an essential part of the dominating laws in the realm of criminal procedures in Saudi Arabia. Actually, it plays ample different roles. First, the Quran and Sunnah as part of the Sharia law constitute the constitution of the Saudi land according to the first article of the BLG. Second, the Sharia as derived from the Qur’an and Sunnah s a guard against the application of any rules-driven from any statute’s provision or article that contradicts with it at the trial stage. Both the BLG and the CPL are limiting the enforcement of any statutory provision to the condition of consistency with the Sharia. The judges’ role is not to apply the Sharia principle only. They would assess the applicable statutory rules in any bright case before them to figure whether they do not contradict the Sharia principles and are being granted the green light to be applied. The sharia law is the only applicable law where there is no regulating statute in the arena according to inference from the above-stated article. The Islamic Sharia also has the power to invalidate a criminal procedure that contradicts it. Finally, the sharia law has another significant role on appeal to reverse any judgment contradicting with the Qur’an, Sunnah, or the Consensus of Muslim Jurists.
The Islamic Sharia in general, including all of its sources, may be relied on to assert the eligibility for the protection of the state for whatever established human right under any source of the Islamic Sharia25. Hence, all of the above explains why it is so important to study Sharia’s stance from the protection of the studied human rights. However, it is important to define what is Sharia is. The Sharia, when it is used in this study, refers to the Islamic laws, which is derived from several sources including the following.
- The Quran
- Sunnah (the saying, approval, or action of the Prophet Muhammad), and
- Secondary sources:
- Ijma’a: consensus of the jurists of Islam on particular matter of law,
- Qiyas, or analogy: reaching a judgment in a new matter through applying an already established judgment of Sharia that governs an analogues matter to the new one, and
- Almssalih almursalah, Ijtihad, and Istehssan.
However, the fact that in the arena of the Islamic jurisprudence, there are many schools, and inside each school, ample views, limiting of the sources would never indicate the limit on the interpretation of the rules derived from these sources. In the Saudi legal system, the judges are not bound to one view of jurists, nor are they bound to one school. Legislature chose not to refer explicitly to the application of the view of a particular school in interpreting the source of Sharia. Actually, upon the unity of the kingdom of Saudi Arabia, King Abdul-Aziz explicitly declared in many incidents that there is a difference between the jurisprudence schools, and the judges shall not confine themselves to one school. Rather, they shall apply the strong view with convincing evidence whatever school provides the most appropriate opinion. However, the King showed a preference to apply the view of Ahmad Ibn Hanbl whenever there is no power, evidential, and persuasive opinion in any other school. This may be seen as an advantage because any proposition from any Islamic jurists might be admitted at court if it is based sensibly on strong (daleel) evidence from Sharia’s sources26.
The Criminal Procedures Law
The Criminal Procedures law is a significant variable in clarifying the status of the offered legal protection of human rights in any country. During the criminal proceedings, the status of the legal protection would lose any ability to hide from reality. The existence of other public, social, and political interests during the criminal proceedings and their conflict with the individual liberties forces the legislature to formulate the real and factual legal protection for the rights. For example, in Saudi Arabia, the right to physical liberty may never be understood without proceeding to understand the status of the right during the criminal procedures, where the right becomes more identified and narrowed27. The extent of the legal protection for any right is unknown without knowing the scope of the protection during criminal proceedings.
The emerging of the Criminal Procedures Law in Saudi Arabia was widely celebrated because it dramatically changed many aspects of the criminal procedural system in favor of the accused. In 2001, for the first time, several obligations were imposed on the government and its officials. Rights were recognized for the suspects, and safeguards were designed to uphold these rights during the different stages of the criminal proceedings. Moreover, the CPL has established types of remedies- procedural and civil- for some sorts of violations. Two hundred and twenty-five articles construct the Law in a manner that regulates the relationship between the government and the people in the context of the criminal proceedings. However, it is not claimed to be the most satisfactory revolution in the criminal procedural system and the protection of human rights standards, because many deficient aspects are implanted within its provision. Nevertheless, the enactment of the CPL gave ground for the scholars to criticize and suggest modifications instead of remaining on the silence-hoping mode in front of the free judicial interpretation of Sharia principles.
Dannin explicitly stated that there could be no right without a remedy. Russ emphasized this statement,
“It is meaningless to grant non-protectable right. It is common sense: If I have the right to enroll in a state college, and the college refuses my enrollment, there must be a way for me to overturn the college’s decision for the right to have any real meaning.”
Lord Denning on the same vein said, “A right without a remedy is no right at all28.” Moreover, in an article published by Boston Review, Karlan attentively asked in the title what a Right without a Remedy is. Hence, the protection of human right may never be achieved in a system without the existence of an appropriate remedial system to deter the violation and compensate the victim. The remedial laws in Saudi Arabia are derived from the statutory laws and the Sharia law. Therefore, answering what sorts of remedies are offered under the Saudi system for the violation of human rights shall take into consideration the statutory and the Sharia laws. First, the procedural remedies such as, the nullity is regulated under the CPL. However, the Sharia is an essential component to be considered in order to determine whether an incompatible criminal procedure with the law is invalid or not. Second, the grounds for civil remedies for wrong are also distributed among several statutes and the principle of Sharia. For example, the CPL gives a civil cause of action for harm resulting from malicious accusation. Finally, as for the criminal remedies, several statutes along with Sharia criminal law can offer a criminal remedy for human right violation whenever the violation amount to crime under the law.
Human Rights during the Pretrial Criminal Proceedings
The human rights during the pretrial criminal proceedings in this study are meant to refer to those rights that were recognized by the regional and international bodies and have an obvious involvement during the pretrial criminal proceedings. Essentially, these human rights are the right to counsel, the right to privacy, the right against compulsory self-incrimination, the right against torture and other degrading treatment, the right to physical liberty, and the right to an effective remedy. As for the scope of the study, only the rights of privacy and physical liberty are addressed, and the right to remedy is an important part of their protection.
The pretrial criminal proceedings stage
The pretrial criminal proceeding is being used a lot during this study. When it is used here, it is meant to refer to the period during the criminal proceedings that precede the referral of the accused and the case to the court through a prosecution. In Saudi Arabia, this period is unknown. The judicial authority is not involved in any criminal case before the prosecution is made29. Anyway, this stage is composed of two levels, which are Preliminary criminal investigation, and advanced criminal investigation. The first level of investigation is undertaken exclusively by the Criminal Investigation Officers (CIOs)30. This level of investigation is considered less intrusive with the people’s rights. No interrogation is permissible at this level. However, search or arrest might be performed in some exceptional cases such as the flagrant delicto.
Afifi Abdu Al-Baseer Wahad, Commentary on the Law of Criminal Procedure Of The Kingdom Of Saudi Arabia, (2004).
Ahmed Al Ibrahim, 210 Articles In Ten Chapters To Facilitate The Litigation Procedures, The Investigation, And Adjudication Of Criminal Cases To The Courts, (2012).
Calvin Woodar, Joseph Story and American Equity, 45 Washington and Lee L. Rev. 1 (2012).
David Ruccio, Globalization and Imperialism, 1 Rethinking Marxism, 75 (2003).
Denning Lord, Gouriet V. Union Of Post Office Workers, (1997).
Dominic Strinati, An Introduction to Theories of Popular Culture 19-28 (3rd ed. 1992).
Edmund Osmanczyk, Encyclopedia of the United Nations and International Agreement, 26-37 (2nd ed. 2003).
Ellen Dannin, No rights without a Remedy: The Long Struggle for Effective National Labor Relation Act Remedies, (2011).
Escobar Arturo, Encountering Develpment: The Making and Unmaking of the Third World, 21-29 (1st ed. 1995).
Handrahan Leadly, Gender Apartheid and Cultural Absolution: Saudi Arabia and the International Criminal Court, 8 Human Rights Tribune 3 (2001).
Hollingsworth Manning, Saudi Babylon: Torture, Corruption and Cover-up inside the House of Saud, 88-94 (3rd ed. 2006).
Janet Abu-Lughod, Before European Hegemony: The World System AD 1250– 1350, 71-86 (3rd ed. 1989).
Jones Patch, If Olaya Street Could Talk Saudi Arabia- The Heartland of Oil and Islam, 46-65 (3rd ed. 2007).
Jordet Nils, Explaining the Long-term Hostility between the United States and Iran: A Historical, Theoretical and Methodological Framework, 8 International Relations, (2011).
Lee Russ, Supreme Court Creates A Right without A Remedy, (2010). Web.
Marshals Cavendish, World and Its Peoples: the Arabian Peninsula, 35-47(2nd ed. 2007).
Mohamed Aziz & Ahmed Altattawor, Basic Law of Governance The Legislative Development In The Kingdom Of Saudi Arabia. Royal Decree No. A/90 (Sa.), (1992).
Mohamed Tajelden, The Criminal Investigation in Saudi Arabia: A Comparative Study, (2004).
Mohammed Abdel- Jawad, Altattawor Altashri’ai fi Al-mamllaka Al-arabia Al-Saudia 74, 81, 85 [the legislative development in the Kingdom of Saudi Arabia], (1977).
Osman Abdullah-Qaid, The Rights and Guarantees of the Suspect during the Criminal Pretrial Stage, (2005).
Pamela Karlan, What’s A Right Without A Remedy? (2009).
Patrick Bascio, Defeating Islamic Terrorism: An Alternative Strategy, 88-135 (5th ed. 2007).
Paul Krugman & Anthony Venables, Globalisation and inequality of nations, 60 Quarterly Journal of Economics, 57 (1995).
Robert Yin, Case Study Research: Design and Methods, 44-78 (5th ed. 2003).
Scott Burchill, Andrew Linklater, Richard Devetak, Jack Donnelley, Mathew Paterson, Christian Reus-Smit & Jacqui True, Theories of International Relations, (2001).
Steve Smith, Foreign Policy is What States Make of It: Social Construction and international Relations theory, (2001).
Yosefu Abdulazizal-Mahboob, Investigation Procedures In The Saudi Law Of Criminal Procedure, (2006).
- Abdel- Jawad Mohammed, Altattawor Altashri’ai fi Al-mamllaka Al-arabia Al-Saudia 74, 81, 85 [the legislative development in the Kingdom of Saudi Arabia], (1977).
- Abdulazizal-Mahboob Yosefu, Investigation Procedures In The Saudi Law Of Criminal Procedure, (2006).
- Abdullah-Qaid Osman, The Rights and Guarantees of the Suspect during the Criminal Pretrial Stage, (2005).
- Abdullah-Qaid Osman, The Rights and Guarantees of the Suspect during the Criminal Pretrial Stage, (2005).
- Abu-Lughod Janet, Before European Hegemony: The World System AD 1250– 1350, (1989).
- Mohamed Aziz & Altattawor Ahmed, Basic Law of Governance The Legislative Development In The Kingdom Of Saudi Arabia. Royal Decree No. A/90 (Sa.), (1992).
- Abdel- Jawad Mohammed, Altattawor Altashri’ai fi Al-mamllaka Al-arabia Al-Saudia 74, 81, 85 [the legislative development in the Kingdom of Saudi Arabia], (1977).
- Afifi Abdu Al-Baseer Wahad, Commentary on the Law of Criminal Procedure Of The Kingdom Of Saudi Arabia, (2004).
- Al Ibrahim Ahmed, 210 Articles In Ten Chapters To Facilitate The Litigation Procedures, The Investigation, And Adjudication Of Criminal Cases To The Courts, (2012).
- Burchill Scott, Linklater Andrew, Devetak Richard, Donnelley Jack, Paterson Mathew, Reus-Smit Christian & True Jacqui, Theories of International Relations, (2001).
- Osmanczyk Edmund,Encyclopedia of the United Nations and International Agreement, (2003).
- Handrahan, Leadly, Gender Apartheid and Cultural Absolution: Saudi Arabia and the International Criminal Court. 8 Human Rights Tribune 3 (2001).
- Ruccio David, Globalization and Imperialism, 1 Rethinking Marxism, 75 (2003).
- Cavendish Marshals, World and Its Peoples: the Arabian Peninsula, New York, Penguin, 2007.
- Dannin Ellen, No rights without a Remedy: The Long Struggle for Effective National Labor Relation Act Remedies, (2011)
- Denning Lord, Gouriet V. Union Of Post Office Workers, (1997).
- Escobar Arturo, Encountering Develpment: The Making and Unmaking of the Third World, (1995).
- Bascio Patrick, Defeating Islamic Terrorism: An Alternative Strategy, New York, Branden Books, (2007).
- Russ Lee, Supreme Court Creates A Right without A Remedy, Web.
- Woodar Calvin, Joseph Story and American Equity, 45 Washington and Lee L. Rev. 1 (2012).
- Strinati Dominic, An Introduction to Theories of Popular Culture, (1992
- Yin Robert, Case Study Research: Design and Methods, (2003)
- Smith Steve, Foreign Policy is What States Make of It: Social Construction and international Relations theory, (2001).
- Hollingsworth, Manning, Saudi Babylon: Torture, Corruption and Cover-up inside the House of Saud, (2006).
- Jones, Patch, If Olaya Street Could Talk: Saudi Arabia- The Heartland of Oil and Islam, (2007).
- Krugman Paul & Venables Anthony, Globalisation and inequality of nations, 60 Quarterly Journal of Economics, 57 (1995).
- Jordet Nils, Explaining the Long-term Hostility between the United States and Iran: A Historical, Theoretical and Methodological Framework, 8 International Relations, (2011).
- Karlan Pamela, What’s A Right Without A Remedy? (2009).
- Tajelden Mohamed, The Criminal Investigation in Saudi Arabia: A Comparative Study, (2004).
- Abdel- Jawad Mohammed, Altattawor Altashri’ai fi Al-mamllaka Al-arabia Al-Saudia 74, 81, 85 [the legislative development in the Kingdom of Saudi Arabia], (1977).