Introduction
In recent years, the Kingdom of Saudi Arabia has taken significant steps toward modernizing its judicial system by enacting new laws and developing litigation mechanisms to enhance the efficiency of justice and rights protection. The Kingdom actively seeks toward enacting a Unified Penal Code, but until its final approval, criminal justice is administered through a combination of various legal regulations addressing different types of crimes, in addition to the provisions of Islamic Sharia.
This approach has provided a degree of flexibility in addressing diverse criminal behaviors, while also posing challenges in terms of consistency in judicial interpretations.
This article explores how criminal justice is managed in the absence of a unified penal code, highlighting the mechanisms, alternatives, and practical examples followed in the Kingdom of Saudi Arabia.
I. What Is Meant by the Absence of a Unified Codification?
The term refers to the lack of a comprehensive, codified penal law that consolidates all crimes and punishments in a single legal document. However, this does not mean that there are no standards or that discretion is absolute. Rather, the Saudi judicial system relies on:
1. Islamic Sharia as a Primary Source
The Saudi judiciary is based on Islamic Sharia rulings, particularly from the Hanbali school of jurisprudence.
Crimes are generally classified as follows:
- Hudud crimes (e.g., adultery, theft), which are defined by fixed Sharia texts.
- Qisas and Diyah (retributive punishment and blood money), such as murder and bodily harm.
- Ta’zir (discretionary penalties): for offenses not explicitly defined in texts; the punishment is determined by the judge.
- Ta’zir punishments in Sharia are divided into:
- Restricted Ta’zir: Where the type or range of penalty is specified by law.
- Open-ended Ta’zir: Left to the judge’s discretion, taking into account the nature of the act and the circumstances of the offender.
This discretionary authority presents a challenge in the absence of unified codification, as similar offenses may result in different sentences depending on the judge.
2. Sector-Specific Regulations and Bylaws
In the absence of a unified penal code, a number of specialized laws have been enacted to govern specific areas of criminal justice, including:
- Anti-Cybercrime Law
- Anti-Money Laundering Law
- Anti-Financial Crimes Law
- Counter-Terrorism Law
- Code of Criminal Procedure
These legislations serve as “partial criminal codes” that define specific crimes and their corresponding penalties with precision.
3. Judicial Discretion in Ta’zir Sentencing
For offenses without a specific Sharia or statutory provision, judges apply Islamic principles to determine punishment.
Ta’zir sanctions may include imprisonment, fines, public admonishment (e.g., publishing verdicts in newspapers), dismissal from public office, or house arrest.
However, this judicial latitude may lead to sentencing inconsistencies for similar crimes across different courts.
4. The Role of the Public Prosecution
The Public Prosecution, as per its law, is responsible for initiating and investigating criminal cases. It acts in accordance with issued statutory provisions and relies on established judicial principles.
For example, in cyber defamation or insult cases, the prosecution refers to the Anti-Cybercrime Law to press charges accordingly.
5. Judicial Precedents and General Principles
Although not binding, precedents from the Supreme Court decisions serve as influential references. Some lower courts adopt established higher court rulings to calibrate punishments and justify decisions.
Practical Examples:
- Harassment: Before the Anti-Harassment Law (2018), punishment was subject to judicial discretion (Ta’zir). Now, the law clearly defines penalties, which has unified judicial application.
- Electronic Forgery: Addressed under the Anti-Cybercrime Law due to the absence of general provisions in a unified criminal code.
- Online Defamation/Insults: Handled by the General Criminal Court based on the Cybercrime Law, public order considerations, and Ta’zir provisions.
II. The Impact of the Absence of Codification on the Principle of Legality
Article 26 of the Basic Law of Governance establishes the principle of “No crime and no punishment except by law” as a constitutional guarantee for rights and freedoms.
However, the absence of a unified penal code leads to:
- Varied interpretations of Ta’zir crimes and their punishments by judges and scholars.
- Inconsistent rulings and sentences in similar cases across different courts.
- Ambiguity regarding penalties for newly emerging offenses, such as cybercrimes before the issuance of the Anti-Cybercrime Law.
Result: Legal predictability for litigants is weakened, highlighting the need for a clear and comprehensive penal codification to reinforce the principle of legality and safeguard litigants.
III. Balancing Sharia with Codification Needs
Many Islamic scholars and legal experts argue that codifying Ta’zir penalties does not conflict with Sharia, but rather serves to organize and regulate judicial discretion.
While Hudud and Qisas remain fixed, codifying Ta’zir helps ensure fairness and consistency in sentencing.
IV. Judicial Administration Mechanisms for Criminal Justice
Despite the lack of a unified penal law, Saudi Arabia has developed a specialized judicial infrastructure, including:
- Establishment of Criminal Courts
- Expanded powers for the Public Prosecution
- Adoption of electronic investigation systems and visual criminal monitoring
These developments have increased the speed and efficiency of proceedings. Additionally, the Supreme Court plays a vital role in unifying legal principles through precedents that lower courts may consult.
V. How Is the Kingdom Addressing This Challenge? (Current and Proposed Reforms)
- Gradual Move Toward Codification:
The Human Rights Commission and the Ministry of Justice have announced initiatives to codify Sharia provisions in areas such as:
– Personal status
– Criminal law
– Evidence
- Code of Criminal Procedure:
First issued in 2001 and updated in 2014, it provides a key framework for investigation and trial procedures and related guarantees—though it does not comprehensively define all crimes.
- Expansion of Specialized Laws:
Recent legislation such as:
– Anti-Harassment Law
– Anti-Cybercrime Law
– Anti-Money Laundering Law
…has addressed significant legal gaps.
Conclusion
Although a unified penal code has yet to be enacted in Saudi Arabia, the Kingdom is fast moving forward with legal reforms and codifying various components of the justice system.
Enacting a comprehensive criminal code is a critical step toward increasing transparency, achieving justice and unifying judicial interpretations—especially in a society as dynamic and fast-evolving as the Kingdom of Saudi Arabia.