Saudi king acts on legal reform

By Abeer Allam in Riyadh, Financial Times

Is stealing sheep a more serious crime than beating your wife to death?” asked Khaled al-Sulaiman, a Saudi columnist writing in Arab News, citing two recent judgments.

In one case, a judge handed down a sentence of two years and 200 lashes to a man who had beaten his wife to death. In the other, a judge sentenced a pair of sheep rustlers to three years in prison and 1,000 lashes.

That Mr Sulaiman had to ask the question reflects growing frustration among Saudis at the pace of a $2bn legal reform initiative proposed by King Abdullah two years ago.

That frustration has reached the top. At the weekend, King Abdullah sacked Saleh al-Lohaidan, head of the supreme judicial council, who has opposed reforms and efforts to codify Islamic law, or Sharia. Last September, Mr Lohaidan issued a fatwa condoning the killing of television station owners who produce or air “immoral content”.

But the problems afflicting Saudi Arabia’s legal system run deeper than one individual. Although every legal system produces anomalous rulings, in most countries lawyers say they can study the reasoning or facts used in a judgment. In Saudi Arabia, where judges rule according to their understanding of Islamic texts, there is no such recourse.

Fearing that judges may be misled by human wisdom, rather than adjudicating directly from religious sources, Saudi Arabia rejects the system of precedent used in common law systems and the extensive civil codes used in civil law systems.

Instead, trial proceedings are generally closed to the public and judicial decisions are not published. Judges can even bar attorneys representing parties from the courtroom if they decide the their presence is unhelpful.

“Transparency is one concern because there are fewer written laws,” says James Dallas, chairman of Denton Wilde Sapte, a law firm in Riyadh. “We try to manage expectations about how quickly things will happen and offer realistic timetables but the situation also forces us to be less dependent on legal remedies.”

Whereas other reforms launched in the kingdom over the past five years have borne fruit, changes to the legal system have moved more slowly. A “Doing Business in the World” report by the World Bank suggests that disputes in Saudi Arabia still require on average 44 procedures and 635 days to resolve.

Experts and diplomats suggest that the powerful and conservative judiciary accounts for the slow pace of change. About 700 judges serve 25m people in a country a fifth the size the US, almost all of them from Bukairiyah, a conservative redoubt in Qassim province.

Mr Lohaidan, for example, had once asserted that adopting civil codes would violate sacred customs that have the same legal authority as other written laws.

It is no surprise that most foreign companies in Saudi Arabia specify that dispute resolution occur in foreign jurisdictions, with a clear preference for London. However, enforcing foreign decisions in Saudi Arabia involves numerous legal procedures and raises the likelihood a judge will change portions of the judgment he deems incompatible with Islamic law, particularly interest penalties – or will start a trial all over again.

King Abdullah has established a supreme court that in theory can reverse judgments and thus rein in more junior judges. But lawyers say that in practice the tribunal has yet to establish its prerogatives.

Last month, Abdullah bin Ibrahim Al al-Sheikh, former justice minister, announced a 30-year strategic plan that includes measures to enhance commercial and intellectual property registration and enforcement.

Mr Al al-Sheikh was moved sideways in the weekend reshuffle. His successor is Mohammed Al-Eissa, previously deputy director of a tribunal to settle commercial disputes, who is described as pro-reform.

Other changes are being tested in pilot phases, and practitioners report new stenographers or computers in use in courts. But lawyers say the time between hearings can still vary from one to three months and, since each matter may involve dozens of hearings, trials can drag on indefinitely. “The situation is much better now than a year ago, but the whole process needs to be streamlined,’’ says Amgad Husein, a partner at Denton Wilde Sapte. “The courts are normally fair but there is a huge lag between decisions and it may take two or more years for a final verdict.”

Abdel Aziz al Qassem, a reformist lawyer, had grown disillusioned about prospects for reform, citing opposition in the judiciary. But following the weekend reshuffle, he is a lot more optimistic.

“This is a huge change,” he says. “They have removed the dams of resistance that halted judicial reform. Now I feel they are speeding up the reform finally after long delays.”

If Mr Qassem is right, Mr Sulaiman of Arab News might find an answer to his question sooner than he imagined.