Legal representation in litigation : a critical analysis of the law in the Kingdom of Saudi Arabia

Abstract

This study discusses the position of legal representation in the Kingdom of Saudi Arabia through a review of the obstacles faced by lawyers while exercising legal practice for defending the accused. As the Kingdom of Saudi Arabia adopts Islamic law in the legislative and judicial matters, the study addresses the status of legal practice as per Quran, Sunnah and Islamic rulings. This is achieved by relying on the sources in Islamic jurisprudence and the subsequent contribution of the eminent scholars which shows that Islamic law guarantees the right to the accused to defend himself either through self-representation or by giving the power of attorney to others. In addition, the study also focuses on the guarantees to the accused in the Code of Criminal Procedure for accessing a lawyer. The study also addresses the rights and duties of lawyers, the conditions which must be interpolated for executing legal practice, the guarantees and immunities given by legislation to a lawyer for the performance of his job and so on. All this is addressed in relation to Saudi judicial system and comparing it with Egyptian and Syrian law. The study also reveals the defects of Saudi judicial system which allows non-specialist individuals to practice law and, at the same time, does not provide any guarantees to academically qualified practitioners. On the contrary, it imposes obligations on lawyers and enacts penalties against them in case of any violation while the non-specialists have been kept away from such. On the other side, it studies what has been guaranteed by the Code of Criminal Procedure to the accused in terms of getting a lawyer at all the stages of criminal proceedings. Consequently, it clarifies the role of a lawyer in the backing and support of the defendant. The study reveals the consequences of the presence of a lawyer beside the accused who is considered the weaker party in the case. It also shows how the support of a lawyer with the accused may help achieve some equality between the accused and the prosecutor who is assisted by all state agencies in order to convict. Finally, the researcher demonstrates the main reasons behind the court denying the defendant access to legal counsel. This is followed by some findings (as excavated by this study) and recommendations that pertain to the issue at hand for emphasizing the principle of the rule of law. The study concludes that Saudi law does not allow the accused to access a lawyer except after making him go through investigating and judicial authorities.