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Criminal Defense in Saudi Arabia Criminal Defense in Saudi Arabia: An Empirical Study of the Practice of Criminal Defense in Saudi Arabia Abdulaziz K. Al-Hamoudi A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Washington 2014 Reading Committee: Scott Schumacher, Chair Jane Winn Mary Fan Philip Schuyler Program Authorized to Offer Degree: School of Law ©Copyright 2014 University of Washington Abstract Criminal Defense in Saudi Arabia: An Empirical Study of the Practice of Criminal Defense in Saudi Arabia Abdulaziz K. Al-Hamoudi Chair of the Supervisory Committee: Professor Scott Schumacher School of Law For the first time in Saudi Arabia’s legal history, the Law Reform of 2001 recognized the practice of criminal defense and defendants’ right to the assistance of an attorney. Since 2001, the right to legal representation has been enforced, and the practice of criminal defense has been allowed. Nonetheless, the position of the practice of criminal defense within the Saudi legal system remains unclear both in theory and in practice. This study examines the practice of criminal defense in Saudi Arabia. It addresses the situation before and after the emergence of defense lawyers. It presents the history of law practice and the arguments for and against this profession. Equally, it focuses on the defendant’s right to legal representation, since it is associated with the practice of criminal defense. For this purpose, I conducted an empirical study, in which I interviewed judges and lawyers who have been involved in the application of the laws relevant to the practice of criminal defense. The interviews revealed that the practice of criminal defense has had a good start and is heading in the right direction. Based on the results, it is obvious that the majority of interviewed judges are of the view that the practice of criminal defense is in line with Islamic principles of justice. The results also reveal that criminal defense services are much needed in the Saudi justice system. Since engaging in the practice of criminal defense in 2001, criminal defense counsels have made a significant difference in case outcomes and a positive impact on the justice system. Table of Contents List of Figures .................................................................................................................................. v List of Tables ................................................................................................................................... vi Acknowledgments .......................................................................................................................... vii Chapter One: Introduction ............................................................................................................... 1 I. Overview .................................................................................................................................. 1 II. Research Questions and Objective ......................................................................................... 4 III. Significance ........................................................................................................................... 5 IV. Methodology ......................................................................................................................... 7 1-Sample Interview Questions ................................................................................................ 8 2. Population ............................................................................................................................ 9 3. Participants’ Criteria .......................................................................................................... 10 4. Recruitment ....................................................................................................................... 22 5- Justification of the methods .............................................................................................. 23 V. Law Relevant to Criminal Defense ...................................................................................... 24 1. The Basic Law of Governance .......................................................................................... 25 2. The Law of the Judiciary ................................................................................................... 26 3. Code of Law Practice ........................................................................................................ 26 4. Law of Criminal Procedure ............................................................................................... 27 5. Law of the Bureau of Investigation and Public Prosecution ............................................. 28 VI. Conclusion ........................................................................................................................... 28 Chapter Two: Saudi Arabia: Its History and Legal System .......................................................... 31 Introduction ............................................................................................................................... 31 I. The Arabian Peninsula before Islam ...................................................................................... 32 1. The Arabian Peninsula before Islam ................................................................................. 32 2. Emergence of Islam ........................................................................................................... 33 II. Saudi Modern History ........................................................................................................... 35 1. The First Saudi State (1744-1818)..................................................................................... 35 2. The Second Saudi State (1824-1891) ................................................................................ 38 3. The Third Saudi State (1932) ............................................................................................ 38 III. Saudi Legal System ............................................................................................................. 40 i 1. Background ....................................................................................................................... 40 2. Branches of the Legal System ........................................................................................... 42 IV. Sources of Law in Islam ...................................................................................................... 51 A. Qur’an and the Sunnah ..................................................................................................... 51 B. Secondary Sources of Islamic Law ................................................................................... 54 V. Saudi Criminal Law .............................................................................................................. 61 A. Principles of Islamic Criminal Law .................................................................................. 61 B. Categories of Crimes in Islam .......................................................................................... 63 C. Legislative Goals of Criminal Punishment in Islam ......................................................... 73 Conclusion ................................................................................................................................. 77 Chapter Three: Origin and Development of the Legal Profession in Islam .................................. 79 Introduction ............................................................................................................................... 79 I. Historical Background ........................................................................................................... 80 II. Adversarial Agency in Islam ................................................................................................ 83 III. Criteria for Agents under Islamic Law ................................................................................ 86 1. Agreed-upon Criteria ......................................................................................................... 86 2. Controversial Criteria ........................................................................................................ 88 IV. Establishment of the Legal Profession in Islam .................................................................. 90 1. Emergence of the Legal Profession in Islamic Tradition .................................................. 90 2. Legal Profession in Saudi Arabia ...................................................................................... 94 3. Women in the Legal Profession....................................................................................... 102 V. Muslim Jurists and the Practice of Law .............................................................................. 111 1. Argument Against the Practice of Law ........................................................................... 111 2. Argument for the Practice of Law ................................................................................... 114 3. Responses to Jurists’ Argument Regarding the Practice of Law ..................................... 117 Conclusion ............................................................................................................................... 122 Chapter Four: The Right to Defense Counsel
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