Saudi Arabia’s New Law of Evidence
By Hussam Althiyabi
On 28 December 2021, the Saudi Cabinet approved the Law of Evidence, considered the first codified law of evidence in the country’s history. The law becomes the primary rule governing all commercial and civil transactions and administrative and criminal matters and is one of the four regulations that the Crown Prince and Prime Minister, Mohammed bin Salman Al-Saud announced for the Kingdom in order to cope with the global challenges in dealing with economic and social development. The law of evidence introduced new methods for dealing with the current circumstances, such as accepting submitting digital evidence and giving it the same status as written evidence.
The Urgency for a Codified Rule of Evidence in Saudi Arabia
Before going over the need for written rules for evidence in Saudi Arabia, it is useful to review the past practice for the national courts. Previously, disputes before the Saudi judiciary were settled according to Islamic jurisprudence, specifically the al-Hanbali school. Its teaching gives broad discretionary powers to judges to decide leading to situations where one judge could allow specific evidence, while another would not, which could affect the judgment even if they had similar facts. This practice increased uncertainty for the people to litigate before the Saudi courts. Now, in contrast, with the opening of foreign investment and the launching of massive projects where possible disputes might arise due to economic growth, the need for a codified rule of evidence became more urgent than ever.
An Overview of the Saudi Law of Evidence
The introduction of the new law in Saudi Arabia is perceived as a revolutionary reform for the country’s legal system regarding its contribution to justice. The law consists of 11 chapters governing the presentation of evidence and interrogating witnesses in legal disputes. In addition, it allows for presenting digital evidence during the trial procedure, which did not exist before the Covid-19 pandemic. The law defined Digital Evidence in Article 53 as ‘any evidence derived from any data to be generated, issued, received, saved, or notified by an electronic instrument, which may be retrieved or obtained understandably, including the digital record, digital written instrument, digital signature, and digital messages.’ According to Article 56, digital evidence gives the same power of evidence as the traditional written instrument (official and customary) if it meets the threshold for formal documents stated in Article 25. This is considered an important development in the Saudi judiciary.
As mentioned above, the law narrows the judge’s discretion into what is written in the rule of evidence, according to Article 2 of the law, which excluded the judge’s determination outside what had been presented. In the past, the judge would have broad discretion to determine the evidence based on his knowledge and what the jurisprudence practice had offered. In addition, the law introduces the cross-examination of witnesses whereas in the past, the questions were directed to the judge, who would send or direct them to the other party. Now both parties can cross-examine the other party and object to such questions. Therefore, the Saudi Law of Evidence will help the courts speed up litigation on commercial and civil transactions and administrative and criminal matters that keep up with the tremendous development of modern legal practices to serve the Saudi Vision 2030.
12 January 2023