The Wide Gap Between De Jure and De Facto Law of the Kingdom of Saudi Arabia Under Crown Prince Mohammed bin Salman


Saudi Arabia is a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the United Nations Convention against Torture (UNCAT). The Kingdom’s own criminal code contains safeguards against ill-treatment and torture of detainees.

And yet, according to troubling accounts widely reported last  week, advisors to the Saudi royal family, human rights activists, and others with knowledge of the torture of detainees, said that Saudi security officers tortured eight of 18 jailed women’s-right activists this year (“Saudi Women’s Rights Activist Face Torture,” Wall Street Journal, November 21, 2018; “Jailed Saudi Women’s Rights Activists Said to Suffer Abuse,” Washington Post, November 21, 2018). Together with the October 2, 2018  murder of dissident journalist Jamal Khashoggi, these accounts of alleged incidents of psychological and physical torture, including sleep deprivation, electric shocks, and beatings of detainees  are a stark and chilling reminder  of the wide  gap between de jure (the “law on the books”) and the de facto law (the law in practice) in Saudi Arabia and elsewhere around the world.

Why does this gap persist? One answer is simple. The law is ignored or twisted to the interests of authoritarian rulers, oligarchs, and tyrants. Allegations of ill-treatment of detainees simply are not taken seriously. Responding to the allegations of torture, a Saudi official asserted that “Saudi Arabia’s judiciary system does not condone, promote, or allow the use of torture. Anyone, whether male or female, being investigated is going through the standard judiciary process led by the public prosecution while being held for questioning, which does not in any way rely on torture either physical, sexual, or psychological.” End of story. Torture cannot exist because it is against the law.

Another reason the gap between de facto and de jure law persists may be that it serves the interests of those whose métier is the written law.  Most social scientists view formal written law as merely an input among myriad resources on an input-outcome, means-ends continuum along with other inputs such as human and capital resources and organizational structures (see A Logic Model of Performance Inputs, Outputs and Outcomes, Made2Measure, October 19, 2005). Such inputs may have no or even negative relationships to outcomes that matter to ordinary citizens, outcomes that improve their lives, their conditions or status in society. It is an anathema for such social scientists to conflate means and ends, in other words, to fail to distinguish the things we have including written laws (inputs), the things we do (outputs including processes, mechanisms, procedures, and activities), and the things we accomplish (outcomes). In contrast, for many legal scholars and jurist, like the Saudi official quoted above, it is axiomatic  that the “standard judiciary process” and other inputs and outputs that make up the legal and regulatory framework of government, the de jure law, is the sine qua non beyond which little needs to be done to right wrongs.

Failing to see  this difference between the de facto and de jure law as all important allows for the possibility that a legal system may possess many, if not all, the formal requirements of democracy, including judicial independence, separation and balance of powers, and checks and balances, but nonetheless judges and courts do not act independently and bend to the interests of authoritarian strongmen like Crown Prince Mohammed bin Salman in Saudi Arabia

Crown Prince Mohammed bin Salman is, of course, not alone. Strongmen who rule in authoritarian Russian-style oligarchies amid corruption and political chaos in countries that once looked like they were democratizing today seem to be moving in opposite directions. This is occurring not only in Russia, Egypt, and in Turkey. Hungary’s Prime Minister Viktor Orban who touts the virtues of illiberal democracy and who, no doubt, is willing to dispense with such constitutional niceties as an independent judiciary and the separation of powers because, he might argue, judicial independence impedes economic growth by making it harder for his government to respond quickly and flexibly to changing circumstances and national crises. Other leaders in Poland, the Czech Republic, and Austria, and further afield in Eastern Europe in the Ukraine and Moldova, all seem to be following Orban’s playbook. As they cling to power, embattled strongmen elsewhere, like Daniel Ortega in Nicaragua and Nicholas Maduro in Venezuela, show no inclination towards sharing power with others, never mind their own judiciaries. 

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