Another concern for the right to a public hearing

Undoubtedly, the right to a public hearing is one of the most controversial issues apparent within the Saudi legal system. This particular right has been acknowledged in Islamic Shariah that makes it incomprehensible for Saudi law not to apply the right to a public hearing. Moreover, as has been seen through this study, in many cases in the Islamic history, a judge announces the trial and asks people to attend.48

Nevertheless, in accordance with Saudi law, the right to a public hearing has only been assured through article 61 of the Law of Procedure Before Sharia Courts and through article 155 of the LCP without any practical implementation, except in specific

46 _{Nasir Al-Joufaan ‘Public Hearing in the Judicial Domain’ (2001) 5 Al-Adl 15.}

47 _{Law of Procedure Before Sharia Courts, art 90, clarified in the Regulatory Schedule of the same Law}

9/90.

48

160 cases.49 _{The only exception mentioned in the two previous articles are to firstly protect}

the privacy of any parties, and secondly in the case of public morality.50 _Essentially,

both articles do make it clear that the trial within the Saudi legal system must be in public to ensure compliance with domestic law. However, incompatibility can be seen between the requirements noted in the international human rights standards, namely, article 11(1) of the UDHR and the regional treaties such as article 13(2) of the ACHR.51

From a practical perspective, it has been acknowledged that there are various issues relating to the publicity of the trial within the context of the Saudi Arabian legal system; this can be seen through issues stemming from two main dimensions:

1) In regard to normal crimes—or even serious crimes. In this sense, publicity has not been considered in the Saudi Arabian courts, although through this research it has been noted that attending trials has to be done through a bureaucratic procedure, thus making it difficult to attend the trial without facing a number of challenges.52

2) The special trial—which is that set for ‘security reasons’—is where the accused has been deprived of many rights, whether during the pre-trial stage or the in- trial stage. Publicity has been clearly lacking in the case of such trials against people accused of terrorism activities, which should be exercised in very limited cases, and never extended further than necessary. However, there has been some slight improvement in relation to the publicity of such crimes, with the case of Al-Qahtani raising the question of publicity within Saudi Arabia.53

In an attempt to overcome this problem, two key viewpoints—legal and procedural— may have to be considered:

A- Legal perspective: it seems that, in the case of both article 61 of the Law of Procedure Before Sharia Courts and article 155 of the LCP mentioned earlier, emphasis is placed on publicity; however, in depth, there are various exceptions that may be considered unnecessary, such as in the case of article 61 of the Law of Procedure Before Sharia Courts, which affords judges more power to make

49 _{The only public hearing was the case of Al-Qahtani, see Chapter Five (n 54) and (n 55).} 50

These two exceptions are mentioned in the Regulatory Schedules of the Law of Procedure Before Sharia Courts; however, these remain as exceptions

51 _{See the Human rights Watch report on Saudi Arabia ‘Precarious Justice}

Arbitrary Detention and Unfair Trials in the Deficient Criminal Justice System of Saudi Arabia’ 2008 vol 20, no 3(E) 100.

52 _{This happened during the course of this research, as there were some bureaucratic obstacles to}

overcome.

53

161 the trial private—albeit under vague circumstances. Importantly, the article fails to clearly highlight what is ‘public order’, upon which judges rely to make the trial private. Essentially, there is no explanation in the regulatory schedule of the Law of Procedure Before Sharia Courts for this article. Therefore, it might be appropriate to include an article in the regulatory schedule centred on providing in-depth clarification of the circumstances required for making the trial private. B- The procedural perspective refers to the way in which publicity needs to be

adopted. Essentially, it can be seen that the law within Saudi Arabia refers to one type of court; this particular court is known to have jurisdiction in regard to all crimes within the legal system of Saudi Arabia, including those relating to ‘public security’. Importantly, special courts have not been examined to a significant degree due to the fact that there is no sound legislation explaining their performance. With this noted, it can be observed that all Law of Procedure Before Sharia Courts or any pre-trial actions may be carried out in direct consideration of the two main laws: the LCP and the Law of Procedure Before Sharia Courts.

The problem associated with the special courts focuses attention upon the role adopted by the executive power, which is seen through those cases where an individual is accused of a crime relating to terrorism. It has been seen that a number of safeguards are absent. For example, the right to publicity in the special court is not recognized as being as efficient as in normal crimes. Another issue relates to publicity in terms of recording equipment.54 _{Moreover, the media has, in certain cases, also been prohibited from}

attending various hearings. The admission of the media into the courtroom has therefore been somewhat limited and, in some cases, has been entirely prohibited.