Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal system and alternative care settings.

We have been unable to ascertain whether legislation confirms a “right” of parents and others to use corporal punishment in childrearing, but legal provisions against violence and assault are not interpreted as prohibiting all corporal punishment. The near universal acceptance of corporal punishment in “disciplining” children necessitates clarity in law that no degree or kind of such punishment is acceptable or lawful. Any legal defences of “reasonable chastisement” or similar – in legislation or common law – should be repealed, and explicit prohibition enacted of all corporal punishment, however light and whoever the perpetrator.

Explicit prohibition should be enacted in legislation applicable to all education settings, public and private, religious and secular. In the penal system, all judicial corporal punishment of children (under 18) should be prohibited, including under Sharia law, and explicit prohibition should be enacted in relation to the disciplinary measures permitted in all institutions accommodating children in conflict with the law, in addition to repeal of any legal provisions authorising or regulating flogging of child detainees. Explicit prohibition should also be enacted in relation to all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Provisions against violence and abuse in the Basic Law (1992) are not interpreted as prohibiting corporal punishment in childrearing.

As at 2006, the Saudi National Commission for Childhood was preparing a comprehensive manual of legislation relating to children with a view to harmonising laws with the Convention on the Rights of the Child. In 2008, a new child law was being drafted and draft legislation to address domestic violence was under discussion: we have no further information.

Schools

Schools are told not to use corporal punishment in circulars regularly issued by the Ministry of Education, applicable to all stages of general education and prescribing penalties designed to deter teachers from beating or ill-treating children, but there is no explicit prohibition in legislation.

Penal system

Corporal punishment (amputation and flogging) is lawful as a sentence for crime, including for child offenders. The main laws governing juvenile justice are the Juvenile Justice Act (1975), the Juvenile Justice Regulations (1969), the Law of Criminal Procedure (2001), and the Basic Law of Governance (1992). All laws are based on Sharia: there is no written Penal Code and judges have considerable discretion in defining and punishing crime within the bounds of Sharia. There are three types of offences – qisas (punished by retaliation), hadd (for which the prescribed penalty is mandatory), and ta’zir (for which the punishment is discretionary). The minimum age for criminal responsibility has reportedly been raised from 7 to 12, but reports are inconsistent and the rise does not apply to girls or in qisas cases. The law does not require all child offenders to be tried in the juvenile justice system or require judges to base their decisions on children’s age at the time of the offence: judicial opinion on when a child can be tried as an adult varies and tends to be based on a child’s physical development.

Flogging is mandatory for a number of offences (hadd), and can be ordered at the discretion of judges (ta’zir). Sentences range from dozens to thousands of lashes, and are usually carried out in instalments, at intervals ranging from two weeks to one month. The Juvenile Justice Regulations (1969) encourage juvenile courts to settle cases without placing children in supervised facilities and to limit penalties to admonishment, guidance, counselling or a reprimand, but under the Juvenile Justice Act (1975) young persons under 18 may be sentenced to corporal punishment, including flogging, stoning and amputation.

Under the Law of Criminal Procedure (2001), amputation is carried out pursuant to a Royal Order issued by the King or his representative, and must be witnessed by representatives of the Administrative Governor, the Court, the Bureau of the Promotion of Virtue and Prevention of Vice, and the police (article 220). Flogging should also be witnessed by these officials but there is no requirement for a Royal Order (article 220).

Corporal punishment is lawful as a disciplinary measure in penal institutions. The Detention and Imprisonment Regulations (1977) prohibit torture or other cruel, inhuman or degrading treatment or punishment but allow for flogging. The Imprisonment and Detention Law (1978) provides for flogging as a punishment for violations of internal regulations. The Ministry of Labour and Social Affairs Decree 1354 of 1395 (1975) on internal regulations for social observation homes (article 7) and the Ministry of Labour and Social Affairs Decree 2083 of 1396 (1976) on implementing regulations for girls’ and young women’s welfare homes (article 9) prescribe in detail how corporal punishment should be carried out.

Alternative care

There is no explicit prohibition of corporal punishment in alternative care settings.

Prevalence research

A review of sentences by Human Rights Watch found that it was rare for them not to include flogging. (Human Rights Watch (2008), Adults Before Their Time: Children in Saudi Arabia’s Criminal Justice System )

Research by UNICEF on the Ministry of Social Affairs institution for child beggars in Jeddah found that staff inflict physical punishment on the children to “discipline” them (taadiib). (UNICEF (n.d. ?2004), Trafficking in children and child involvement in beggary in Saudi Arabia: Executive summary and recommendations)

A news item in 2003 reported a recently published survey on corporal punishment in schools which found 59.5% of respondents in favour of reintroducing corporal punishment into schools, with 38.5% against. (Reported in “Yes to corporal punishment”, Arab News, 30 June 2003)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While noting articles 2 and 13 of the Code of Criminal Procedure promulgated in Royal Decree No. M/39 of 15 October 2001 which prohibit torture or degrading treatment and the State party’s reassurance that corporal punishment is not imposed upon minors, the Committee is concerned at reports of extrajudicial and summary floggings of teenagers suspected of behaviour deemed immoral and acts of police brutality.

“The Committee urges the State party to take all necessary steps for the immediate abolition of extrajudicial and summary floggings of teenagers, and also other forms of cruel, inhuman or degrading punishments imposed on persons having committed a crime when under the age of 18 years, including acts of police brutality.

“While noting with appreciation the regular circulars issued by the Ministry of Education which prohibit the beating or ill-treatment of children during all stages of general education and prescribe penalties designed to deter teachers from committing such acts, the Committee notes with concern that corporal punishment is lawful and widely used in the home and that it is a lawful penal sanction.

“The Committee recommends that the State party take legislative measures to prohibit all forms of corporal punishment in all settings, including the family. It further recommends that the State party carry out public education campaigns about the negative consequences of corporal punishment on children and promote positive, non-violent forms of discipline as an alternative to corporal punishment.

“The Committee is encouraged by the State party’s efforts to reform its juvenile justice system, inter alia, through adoption of the new Code of Criminal Procedure and Practice for Lawyers in 2001…. As noted in paragraph 32, the Committee is deeply concerned about reports that persons are sentenced to death for crimes committed while under the age of 18, and at the fact that capital and corporal punishment can be imposed on persons having committed a crime when under 18 years of age at the discretion of the judge.

“The Committee urges the State party to ensure the full implementation of juvenile justice standards in particular articles 37, 40 and 39 of the Convention, and other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, and the Vienna Guidelines for Action on Children in the Criminal Justice System, and take into account the recommendations adopted by the Committee on its day of general discussion on juvenile justice (CRC/C/46, paras. 203-238).

“The Committee refers to its recommendations made in paragraphs 33 on right to life and capital punishment and 43  on protection from torture, inhuman or degrading treatment or punishment and it urges the State party to:

a) critically review its legislation with a view to abolishing the imposition of capital and corporal punishment on persons having committed crimes when under 18 years of age at the sole discretion of the judge; …

c) amend the Detention and Imprisonment Regulations (1977) and the Juvenile Justice and Social Surveillance Centre Regulations to prohibit flogging or any other form of corporal punishment for persons under 18 deprived of their liberty….”

(17 March 2006, CRC/C/SAU/CO/2, Concluding observations on second report, paras 42, 43, 44, 45, 73, 74 and 75)

“In light of article 37 (a) of the Convention, the Committee is seriously concerned that persons under 18 may be subject while in detention to corporal punishment, such as flogging, under article 28 of the 1977 Detention and Imprisonment Regulations. It is also disturbed that persons who committed crimes when they were under 18 may be sentenced to a variety of methods of cruel, inhuman or degrading treatment or punishment such as flogging, stoning and amputation, which are systematically imposed by judicial authorities. The Committee finds that application of such measures is incompatible with the Convention…

“The Committee recommends that the State party take all necessary steps to end the imposition of corporal punishment, including flogging and other forms of cruel, inhuman or degrading treatment and punishment on persons who may have committed crimes when they were under 18. It also recommends that the State party take all appropriate measures to ensure that law enforcement officials respect and protect human dignity and maintain and uphold the human rights of all persons in the course of their duties.

“In light of articles 19 and 39 of the Convention, the Committee is concerned at the incidence of ill-treatment of children in schools and within the family. It is further concerned that domestic violence is a problem in Saudi Arabia and that this has harmful consequences on children.

“The Committee recommends that the State party take legislative measures to prohibit all forms of physical and mental violence, including corporal punishment and sexual abuse, against children in the family, the schools and care institutions. The Committee recommends that these measures be accompanied by public education campaigns about the negative consequences of ill-treatment of children and the promotion of positive, non-violent forms of discipline as an alternative to corporal punishment….”
(22 February 2001, CRC/C/15/Add.148, Concluding observations on initial report, paras. 33, 34, 35 and 36)

Committee Against Torture

“The Committee welcomes the following:

c) the State party’s expression that its domestic law provides that no exceptional circumstances, including superior orders, may be invoked as a defence to a charge of torture, the reassurance that statements obtained by torture are inadmissible in proceedings, and the oral assurance that confessions are revocable at any point of proceedings. The State party’s reassurance that corporal punishments are not imposed upon minors was noted;…

“The Committee is concerned about the following:

b) the sentencing to, and imposition of, corporal punishments by judicial and administrative authorities, including, in particular, flogging and amputation of limbs, that are not in conformity with the Convention.

“The Committee recommends, in particular, that the State party:

b) re-examine its imposition of corporal punishments, which are in breach of the Convention….”
(12 June 2002, CAT/C/CR/28/5, Concluding observations on initial report, paras. 3, 4 and 8)

Universal Periodic Review

Saudi Arabia was examined in the first cycle of the Universal Periodic Review in 2009. The Government accepted recommendations concerning corporal punishment of children in the penal system (A/HRC/11/23/Add.1, Report of the Working Group: Addendum). Examination in the second cycle is scheduled for 2013.