In January, Saudi officials announced that, as part of an ongoing anti-corruption crackdown, they aimed to recover $100 billion from “illicit funds” without specifying any transactions in particular. It is unclear whether judicial proceedings could handle these ongoing sensitive and important moves against high-profile figures in the country. This process, which is overseen by the crown prince not the prosecution, illustrates the executive’s growing control over the judiciary.
On June 17, 2017, a royal decree changed the position of general prosecutor to attorney general (AG), and more significantly claimed to give the attorney general’s office, responsible for criminal investigation and prosecution, “complete independence” by having the AG report directly to the king. The new attorney general’s office replaced the Bureau of Investigation and Prosecution, which was under the supervision of the Minister of Interior, as per Article 1 of the previous Regulation of the Bureau of Investigation and Prosecution—and until February 2015 its employees had not even been considered judicial officials. Many judges and lawyers welcomed the new change and saw it as a step toward independence of the judiciary and rule of law. One former judge turned lawyer said that all the judges he talked to saw this change of linking the apparatus directly to the king as a “positive change” that could protect the prosecution from direct executive interference, particularly from the Minister of Interior.1
Concurrent with the decree, the king appointed Saud al-Mojab as the new attorney general, just four days before the major reshuffle in which he named Mohammad bin Salman crown prince. Though some judges were pleased that the new AG is occupied by a traditionalist with a background in Sharia, many judges and lawyers were disappointed. Although al-Mojab served first as a judge and then as a member of the Supreme Judicial Council, his experience almost exclusively involved personal status cases—meaning his knowledge and experience are more limited when it comes to criminal law, an area that the AG must have command over. According to one judge, al-Mojab also does not have a graduate degree, has not authored any books or papers, and has not participated in jurisprudential discussions pertaining to criminal law.2
Judges and lawyers were likewise divided on al-Mojab’s recommendation, circulated a few days after his appointment, to expedite the trials of all detainees held on criminal charges. Many criminal cases had been delayed, likely for bureaucratic reasons, but for which the new AG blamed the judges. While this addressed delayed proceedings, which many judges saw as a valid concern, the recommendation did not expedite trials, and some judges saw the move as an encroachment on their purview. This tension led to the leak in August 2017 of a dispute between the AG and Minister of Justice Walid bin Mohammed al-Samaani over the matter.
While some look at the quarrel as a sign of a deeper dispute between an older, traditionalist AG and younger, reformist Minister of Justice, the real issue is the consistent executive takeover of judicial matters, a move that needed a submissive figure like al-Mojab. When serving on the Supreme Judicial Council, al-Mojab had little influence and backed every decision of the president of the council: In one judge’s words, al-Mojab is “very easy to control.”3 The long-overdue change allowed the government to appoint a man it can influence—one who could facilitate the extrajudicial purge Mohammed bin Salman had been contemplating.
On November 4, 2017, the purge of princes and public officials came following a royal decree established the National Anti-Corruption Commission, headed by Crown Prince Mohammed bin Salman. Al-Mojab was selected to serve on this committee, but only as a regular member—even though as a prosecuting committee it should have fallen under his purview as AG. And although the June 2017 decree stipulates that the attorney general reports directly to the king—as member of the committee he reports to the crown prince. This is a major legal discrepancy. Al-Mojab did release a written statement on the committee’s anti-corruption cases on November 8, but some Saudi judges have observed that the statement uses very technical and legal language that is not usual for people with al-Mojab’s background in Sharia—suggesting that someone else may have written it for him, potentially the crown prince, who himself has a bachelor’s degree in law. Adding to the confusion, al-Mojab’s statement adds: “We have obtained clear legal authorization to proceed to the next step… and to protect the legal rights of the suspects.” It is unclear why the attorney general would have needed additional legal authorization to prosecute corruption and from whom he would need to obtain it.
Despite al-Mojab’s statement, it has been clear that the purge circumvents the usual judicial process. Despite the wide coverage of the campaign, no specific corrupt deals or transactions were mentioned. And it remains unclear what the stated $100 billion in illicit funds refers to exactly or how it was calculated. This ambiguity gave the committee leeway to target certain figures arbitrarily and overlook others involved in the same investigated transactions. In addition, a few days after the purge began, a senior Saudi official described the anti-corruption commission’s approach as “plea bargaining” to be conducted by the attorney general instead of pursuing any trials. Though the process remains vague, al-Mojab announced that most of individuals targeted by the anti-corruption campaign avoided legal consequences either by giving most of their shares in their companies to the government or by transferring money directly to the government. However, the Saudi legal system has never incorporated a concept even similar to plea bargaining—potentially opening up future legal challenges if the practice is not recognized in any official or legal circle, let alone law. It seems the concept was provided later to justify the use of the anti-corruption purge to extort money from wealthy princes and businessmen and explain why none of the allegedly corrupt individuals were being sent to trial.
Ultimately, the decree transforming the prosecution and the appointing al-Mojab furthered two contradictory goals. It was a step toward independence of the judiciary—a long overdue reform. But it also got around this independence by appointing an attorney general who is “easy to control” and provides a legal rubber stamp for an unchecked executive. This control is essential to the proclaimed success of the extrajudicial process that is governing a very sensitive legal campaign against corruption—a purge that should be supported and applauded yet, at the same time, bound by rule of law.
Abdullah Alaoudh is a Saudi research scholar and a post-doctoral fellow in Islamic Law and Civilization at Yale Law School. Follow him on Twitter @aalodah.
1. Phone interview with author, November 29, 2017.
2. Interview with author, Washington, November 19, 2017.