Lashing as a discretionary penalty and effect of its prevention

Abstract

The Resolution of the General Authority of the Supreme Court No.: 40 / M and dated 24/6/1441 AH was issued, which includes: The courts - in the context of lashing as a discretionary penalty – should impose only imprisonment or a fine or both, or an alternative punishment according to the regulations or decisions issued by the Guardian in this regard. And after this Resolution, problems occurred, namely; about the its legitimacy from the jurisprudential and legal aspect, as well as problems in the effects of its execution on the parties of the criminal action, and the entity of implementation of the penal provisions; therefore, there was a need to research this topic, which underlines its importance by the need to clarify the legal and regulatory rulings and the judicial consequences resulting from its execution, and I have followed the applied approach compared to jurisprudence and the Saudi Law, and reached a number of results, including: that there is no dispute among the jurisconsults on the legality of discretionary penalty, and their texts always stated that discretionary penalty does not need to be with lashing, and that the majority of scholars allow the Guardian to pardon discretionary penalty for the right of God Almighty, in a dispute among them regarding the Rule and Condition, and that they do not allow him to pardon the private right, etc.