UPDATE: A Brief Overview of the Saudi Arabian Legal System

 

By Dr. Abdullah F. Ansary

 

Dr. Abdullah F. Ansary received his B.A. in Islamic legal studies in 1990 from King Abdulaziz University, Jeddah, Saudi Arabia. In 1997, he received his M.A. in Islamic Shari’ah with Honors from Umm al-Qura University, Makkah, Saudi Arabia. In 2000, he received his LL.M. degree from Harvard Law School and continued as a Visiting Researcher at Harvard Law School for the academic year 2000/2001. In 2005, Dr. Ansary received his Doctor of Juridical Science (S.J.D.) degree from the University of Virginia, School of Law. In the same year he acted as a Senior Foreign Law Specialist in the Eastern Law Division of the Law Library of Congress and, until 2009, he continued to provide legal consultancy and expertise to several branches of the U.S. government, commissions, federal courts, law firms and scholarly communities and has been a member of several task forces assigned to review key issues relating to homeland security.

 

From 2009 to 2015, Dr. Ansary served as Director General of Legal Affairs and International Cooperation at the Ministry of the Interior, Riyadh, Saudi Arabia. During this period, he headed several delegations inside and outside the Kingdom that negotiated a number of bilateral, regional and international agreements and MOUs on security and human rights-related issues. He also headed the Saudi delegations to sessions of the United Nation Office on Drugs and Crime and represented the Minister of the Interior in several regional and international meetings. He served as chairman of the Standing Committee on the Transfer of International Prisoners, vice-chairman of the Standing Committee on Requests for Legal Assistance, member of the Standing Committee on Combating Human Trafficking and member of the board of the Human Rights Commission. He also taught International Security Cooperation and Criminalization and Punishment in the Fight against Drug Trafficking at Naïf Arab University for Security Sciences, Riyadh, Saudi Arabia.

 

Dr. Ansary has given several presentations and lectures on various issues within his field of specialization and has authored or co-authored several congressional reports and published articles and papers on the law and/or practice of foreign jurisdictions, national security law and policy, anti-terrorism legislation, human rights and Islamic law and legal systems in national and international journals and newspapers. His work has influenced countries’ legislation, executive policy and judicial decisions. Dr. Ansary’s expertise lies in the fields of national security law and policy, anti-terrorism legislation, human rights law, international law, Saudi and Islamic law and legal systems. He is currently serving as Senior Advisor at the Ministry of the Interior in Riyadh, Saudi Arabia.

 

Published August 2015

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Table of Contents

I.     General Information on the Kingdom

II.   Saudi Arabia: Historical Background

1.     Constitutional Evolution

2.    Citizen Participation in Decision Making

3.    Succession Process

III.    The Basic Law of Governance

IV.     State Authorities

1. The Executive Branch

2. The Legislative (Regulatory) Branch

2.1. The Council of Ministers

2.2. The Shura (Consultative) Council

2.3. Advisory Authorities (The Council of Senior Ulama)

3. The Judicial Branch

3.1. Introduction

3.2. The Previous Saudi Arabian Court System

3.2.1. The Structure of the Previous Shari’ah (Ordinary) Court System

3.2.1.1. Supreme Judicial Council

3.2.1.2. Courts of Appeal (Courts of Cassation)

3.2.1.3. First-Instance Courts

3.2.1.3.1. Summary Courts

3.2.1.3.2 General Courts

3.2.1.3.3 Special Courts

3.2.2. The Previous Structure of the Board of Grievances System

3.2.2.1. Board of Appeal Circuits

3.2.2.2. Appellate Circuits

3.2.2.3. First-Instance Circuits

3.2.3. Administrative Committees

3.3. The Current Judicial System

3.3.1. The Role of the Supreme Judicial Council

3.3.2. The Current Ordinary Courts System

3.3.2.1. High Court

3.3.2.2. Courts of Appeal

3.3.2.3. First-Degree Courts

3.3.2.3.1 General Courts

3.3.2.3.2 Criminal Courts

3.3.2.3.3. Personal Status Courts

3.3.2.3.4. Labor Courts

3.3.2.3.5. Commercial Courts

3.3.2.3.6. Enforcement Courts

3.3.3. Specialized Courts

3.3.3.1. Specialized Criminal Court

3.4. The Current Board of Grievances System

3.4.1. High Administrative Court

3.4.2. Administrative Courts of Appeals

3.4.3. Administrative Courts

3.5. Bureau of Investigation and Public Prosecution

3.6. Judges’ Qualifications, Job Performance and Training

3.7. Judicial Independence

3.8. Sources of Law

V.       Conclusion

VI.     Research Links

1. Law Sources

1.1. Official Gazette

1.2. Law Sources (Official Websites)

1.3. Law Journals (Official Websites)

1.4. Islamic Organizations

1.5. Judicial Authority

1.6. Legislative Authority

1.7. Other Sources (Unofficial Websites)

2. Government Links (Links to the Governmental Bodies’ Websites)

2.1. Ministries

2.2. Agencies

2.3. Human Rights

2.4. E-Government

3. Sources of General Information

3.1. Newspapers

3.2. Online Media

3.3. Education (General – Legal)

3.4. Libraries

3.5. Saudi Arabian Commercial Banks

VII.   Endnotes

 

I.       General Information on the Kingdom

 

 

II.     Saudi Arabia: Historical Background

In 1924, King Abdulaziz (Ibn Sa’ud)—the founder and first King of Saudi Arabia (1932-1953)—took control of the Hijaz (the Western Province of Saudi Arabia), ending a long series of battles to consolidate and unite a vast but fragmented territory. Abdulaziz had his mind set on implementing a nation-building process that would respond to the needs and aspirations of the people in a manner consistent with the best interests of all. [2] He realized that Islam provided the only way to realize this long-sought future, reflecting on its profound influence on the culture and history of the Arabian Peninsula and the perceptions of its inhabitants . National unity was achieved because Abdulaziz applied the doctrine of Islam to public policy, justice and all other spheres of life. He succeeded not only in unifying the country but also in proving the credibility of the Islamic solution and demonstrating its current and eternal validity.

 

Abdulaziz progressively transformed a simple administrative structure into a series of well-defined and well-organized institutions which administered and assisted the executive authority in managing the affairs of an expanding territory. Focusing on the needs of his people, Abdulaziz took the first steps toward the establishment of a system of governance based on the Islamic principle of consultation, as advocated by the Qur’an (Islam’s Holy Book) and the authentic Sunnah (Traditions of the Prophet). [3]

 

1.    Constitutional Evolution

In 1924, the National Council ( Al - Majlis al-Ahli ), a consultative council introduced by Abdulaziz, began to exercise certain powers except in foreign and military affairs which were the prerogative of the King. In August 1925, the Makkah Consultative Council, with more extensive powers, was formed. This new council was responsible for overseeing communications, trade, education, the courts system, internal security and municipal affairs. It was also the precursor of the General Consultative Council, which played a significant role in the creation of the Council of Ministers. In August 1926, Abdulaziz approved a comprehensive constitution that was called the “Basic Directives ( Al-Ta’limat al-Asasiah ) for the province of Hijaz”. The document was in line with the constitutions of many modern States and may also be regarded as the precursor for future ones. The “Hijaz Constitution” consisted of nine sections and seventy-nine articles addressing core constitutional issues such as the system of government, administrative responsibility, the affairs of the Kingdom of the Hijaz, the Accounting Department, the Inspectorate General, the Kingdom’s civil service, the general municipal councils and the municipal administrative committees. Most importantly, the fourth article of that document established several governmental bodies which included the Consultative Council, administrative councils, district councils and village and tribal councils. [4]

 

In 1927, the Commission on Inspection and Reform, which was tasked with reviewing the administrative system, was formed by order of Abdulaziz. Recommending courses of action for administrative reform, the Commission proposed a new statute for the Consultative Council that was approved by Abdulaziz in July 1927. This new Consultative Council was responsible for informing the Government of any errors in the application of laws and statutes. Its functions also extended to other areas, including budgets, construction project awards and licenses, expropriation of private property, employment of foreign nationals and the drafting of laws and statutes. [5]

 

In light of the complexities of the modern era, Abdulaziz approved the Commission on Inspection and Reform’s recommendations and the Council of Deputies ( Majlis al-Wukala ) was created in January 1932. The Council of Deputies functioned for 23 years, acting as a small council of ministers for the Hijaz until the creation in 1953 of the Council of Ministers with jurisdiction over all the provinces of the Kingdom. [6] In September 1932, the country was united as the Kingdom of Saudi Arabia. This major step brought all Saudi Arabian citizens under the umbrella of a unified constitutional and administrative system and facilitated the establishment of new national structures.

 

The discovery of oil in the Eastern Province in the 1930s, coupled with the increasing complexity of governmental affairs, rendered the earlier type of administration inadequate. [7] To ensure a more effective administrative organization, several ministries were created, including the Ministry of Foreign Affairs (1930), the Ministry of Finance (1932), the Ministry of Defense (1944), the Ministry of the Interior, and the Ministry of Communications (1953). The new State successfully established diplomatic relations based on political representation, for which ambassadors were appointed . [8] In addition, a number of centralized departments were set up which eventually paved the way for the establishment of the Council of Ministers. [9]

 

In October 1953, King Abdulaziz announced the establishment of the Council of Ministers. In furtherance of his father’s efforts, King Sa’ud bin Abdulaziz (1953-1964) inaugurated the first session of the Council of Ministers in March 1954. At the time of its establishment, the Council of Ministers served as an advisory body to the King. In 1958, Faisal bin Abdulaziz , Crown Prince and Prime Minister, transformed the Council of Ministers into a legislative, executive and administrative body with decision-making powers. Most of the Kingdom’s basic constitutional principles were embodied in the Statute of the Council of Ministers. Between 1959 and 1960, Faisal made an earnest attempt to introduce modern constitutionalism into the Kingdom, but his endeavors did not go beyond the proposal phase. However, many of the country’s government ministries, agencies and welfare administrations were developed during King Faisal’s reign (1964-1975); the Ministry of Justice is a case in point, having been established by King Faisal in 1970. [10]

 

During the 1980s, the Council of Ministers formulated the Kingdom’s policies on domestic as well as foreign affairs. It also played a leading role in the implementation of policies relating to the national economy, education, social welfare and most public affairs. Focusing on the needs of Saudi citizens, the government agencies were considerably expanded during the 1980s. After the establishment of the Ministry of Municipal and Rural Affairs in 1975, the Municipal and Rural Affairs Law was promulgated under the terms of which municipal councils were formed to promote the shift towards decentralization. [11] During the reign of King Khalid bin Abdulaziz (1975 – 1982), a Royal Order was issued for the formation of a high-level committee of experts and senior officials to draft the Basic Law, the Shura Council Law and the Regional Law. That distinguished committee, chaired by H.R.H. Prince Naïf bin Abdulaziz (1934 – 2012), put a tremendous amount of effort into the drafting of those legislative enactments. [12]

 

Through consultation and a constant awareness of the people’s needs and aspirations, King Fahad bin Abdulaziz (1982 – 2005) initiated the evolution of Saudi Arabia’s Constitution. On March 1, 1992, he promulgated three fundamental enactments under Royal Decrees Nos. A/90 - 92 which transformed the domestic political environment:

 

                                                                                         

The political reforms of the 1990s expanded the scope of Saudi Arabian democratic values into the areas of decision making and checks and balances. Several Royal Orders have been issued amending those constitutional documents, including the Council of Ministers Law, in keeping with Saudi Arabia’s constitutional evolution. [14] Those fundamental enactments and their amendments enhanced participation by citizens in the conduct of public affairs and recognized the role played by civil and political rights in governance. [15]

 

2.    Citizen Participation in Decision Making

In addition to the implementation of a comprehensive set of institutional reforms, elections were used to place candidates in most executive positions in the Kingdom of Saudi Arabia where citizens can effectively participate in the decision-making process. This is considered a significant milestone in the Kingdom’s progress towards building a participation-based society in all respects. Municipal council elections are held every four years, enabling citizens to participate in the management of municipal services through selection of the most capable candidates. [16] Article 9 of the Municipal and Rural Affairs Law of 1977 stipulated that half of the municipal council members must be chosen by election and the other half appointed by the Minister of Municipal and Rural Affairs, based on their efficiency and eligibility. Article 10 stated that each municipal council shall choose its chairman and vice-chairman from amongst council members through a voting process every two years. In the event that all the candidates receive an equal number of votes, the Minister of Municipal and Rural Affairs has a casting vote. [17] Although the said Law was not fully implemented at the time of its enactment, in 2005 the Kingdom held its first elections to select half of the members of the municipal councils, which contributed to greater citizen participation in government. The second municipal elections were eventually scheduled for and took place in 2011, but universal suffrage was delayed until those scheduled for 2015. [18]

 

Moreover, in September 2011, King Abdullah (2005 - 2015) announced that women would be granted the right to both vote and stand for election with effect from 2012, which means that they will be entitled to participate in the scheduled 2015 municipal elections. [19] In order to ensure women’s participation in the decision-making process, Royal Order No. A/44 dated January 11, 2013, amended article 3 of the Shura Council Law to set women’s representation in the Council at not less than 20 per cent of the total number of members, their rights, obligations and functions being determined by Royal Order. [20] Accordingly, King Abdullah appointed 30 women to the previously all-male Shura (Consultative) Council, marking a historic achievement in his push for reforms in the Kingdom (See Chart 1) [21]

 

Chart 1: Saudi Arabia’s Constitutional Evolution

 


Press to enlarge


3.    Succession Process

The legitimacy of the Al-Sa’ud monarchy did not emerge solely from its adherence to the constitutional and Islamic principle of consultation; it also derives from the relatively smooth transitions in kingship which stemmed from King Abdulaziz’s truly significant decision to apply the concept of allegiance ( bay’ah ) established by the Shari’ah and sanctioned by tradition. The Basic Law confirms that the system of government is monarchical and reserves the right to rule to the children and grandchildren of King Abdulaziz bin Abdurrahman bin Faisal Al-Saud. [22] Prior to 1992, the throne had passed to one of the sons of King Abdulaziz on the basis of seniority and family consensus. This allowed a smooth transfer of power over six decades, covering four accessions to the throne. [23] The Basic Law of 1992 introduced provisions regulating the succession process. [24] It established two precedents: an acknowledgement that the grandsons of King Abdulaziz were legitimate candidates for the throne and a royal prerogative to choose and to withdraw approval for the Crown Prince.

 

Article 5 (b) of the Basic Law introduced changes in the rules of succession by allowing the selection of a King or Crown Prince from among the grandchildren of the founding King, Abdulaziz bin Abdurrahman bin Faisal Al-Sa ud, on the basis of “suitability” and “the most upright among them”, [25]  rather than seniority. The most upright among them is to be pledged allegiance in accordance with the principles of the Holy Qur’an and the Traditions of the Venerable Prophet. [26] Before its amendment, article 5 (c) of the Basic Law gave the reigning monarch absolute authority to appoint and dismiss his heir apparent, thereby circumventing the traditional role of the family in this decision. [27] Article 5 (d) of the Basic Law further stipulates that: “The Crown Prince shall devote himself exclusively to the functions of his office and shall perform any other duties assigned to him by the King.” [28] The Basic Law of Governance indicates that, upon the death of the King, the Crown Prince shall assume the royal powers until a pledge of allegiance is given. Under the terms of article 5 (e) of the Basic Law: “The Crown Prince shall assume the powers of the King upon his death until the pledge of allegiance is given.” [29] Article 6 of the same Law requires citizens to pledge allegiance to the King in accordance with the Qur’an and the traditions of the Prophet, in submission and obedience, in times of ease and difficulty, fortune and adversity. [30]

 

On October 19, 2006, King Abdullah issued a Royal Decree establishing the Pledge of Allegiance Commission, which is the body responsible for determining future succession to the throne of Saudi Arabia, with a view to further stabilizing the country and institutionalizing the process of succession. [31] The Decree approved the Law of Pledge of Allegiance Commission which comprises 25 articles regulating matters of governance, including allegiance to the King and the selection of the Crown Prince, in order to prevent the development of a constitutional vacuum or political chaos. [32] The Commission was formed by King Abdullah on December 7, 2007. This landmark Law was a major development in terms of constitutional and legal reform, indicating the scope of the Kingdom’s democratization and modernization. [33]

 

On the same day, a Royal Order amended article 5 (c) of the Basic Law, which previously empowered the King to choose and remove his Crown Prince, in a manner consistent with the new Law. The amendment states that “the pledge of allegiance to the King and the selection of his Crown Prince should be effected in accordance with the provisions of the Law of Pledge of Allegiance Commission .” [34] Article 7 of the aforementioned Law defines the way in which the Crown Prince is to be selected. It states as follows:

 

(a) After receiving the pledge of allegiance and after consultation with members of the Commission, the King shall choose one, two or three persons whom he deems fit to be Crown Prince. His choice shall be submitted the Commission, which shall endeavor to agree on one nominee to be named Crown Prince. If the Commission does not nominate any of them, it shall nominate another person whom it deems fit to be Crown Prince.

 

(b) The King may at any time request the Commission to nominate a person whom it deems fit to be Crown Prince. If the King disapproves of the Commission’s nominee in accordance with paragraphs (a) or (b) of this article, the Commission shall vote on its nominee and another chosen by the King and the one with the majority of votes shall be appointed Crown Prince. [35]

 

The Pledge of Allegiance Commission Law also makes provision for the possibility of the King becoming incapacitated. In the event of the King permanently losing his ability to exercise his powers, the Commission would declare the Crown Prince as King. [36] If both the King and the Crown Prince were to become permanently incapacitated, the Commission would form a five-member Transitional Ruling Council to temporarily assume the administration of the Kingdom. The Commission would also select a new King within seven days. [37]

 

In 2014, the Commission endorsed King Abdullah's decision to create the position of “ Wali Wali al-'Ahd ” (Deputy Crown Prince), [38] who would become Crown Prince only if the position of Crown Prince were vacant and who could become King in one single case: vacancy of the positions of both King and Crown Prince at the same time. While the Deputy Prime Minister used to automatically become Crown Prince, the creation of the position of Deputy Crown Prince, in accordance with Royal Decree A/86 issued in March 2014, is optional. As a consequence, a Crown Prince could be selected directly by the Pledge of Allegiance Commission in future. [39]

 

The recent positive transition of power from King Fahd to King Abdullah and later to King Salman is generally considered the most important factor in the Kingdom’s and the region’s stability, and an indication that the Kingdom will continue to prosper, as it has since the founding of the modern State. The Royal Family has always shown wisdom in handling affairs and has always manifested solidarity in times of crisis. Nevertheless, stability is a fragile concept in the Middle East. Fortunately, in a Middle East that is increasingly characterized by instability, the Saudi Royal Family has moved swiftly and resolutely to project an image of certainty, for the benefit of both domestic and international stability.

 

To cope with the needs of the rapidly developing Kingdom, King Abdullah followed his predecessors and adopted an extensive reform plan that addressed the key areas of good governance: political reform, women’s rights, judicial reform, economic reform and educational reform. These reforms played an important role in Saudi Arabia’s constitutional and administrative evolution. In his address delivered on his accession to the throne in June 2015, King Salman pledged consistency and affirmed that he would follow in his predecessors’ footsteps. He stated: “We will remain, by the grace of Almighty God, committed to the true approach that has been followed by this State since its inception by its founder, King Abdulaziz, may he rest in peace, and by his sons after him, may they rest in peace.” [40]

 

On March 10, 20015, King Salman unveiled his domestic and foreign policy agenda, vowing to work towards “balanced and comprehensive development” and to defend Arab and Islamic causes. In the area of social justice, the King said that he would work to “ensure justice for all citizens and provide opportunities for all to achieve their legitimate hopes and aspirations in accordance with the State's regulations and procedures.” In the area of political reform, the hint of greater public participation in decision making was evident in his comments to regional governors, who he said must be cognizant of the “importance of receiving and listening to citizens.” In regard to social reform, he reaffirmed the equal rights and obligations of all citizens and promised to eliminate “any factors that would stratify society in a manner prejudicial to national unity.” [41] The King also vowed to eradicate corruption and bring those responsible therefor to account and pledged to strengthen the country's monitoring bodies. He placed an unusually large amount of pressure on the two new strategic councils, the Council for Political and Security Affairs and the Council for Economic Development, and called on both of them to ensure the population's prosperity, warning that “we will not tolerate any complacency in this regard”. The formation of the two councils—which replaced around a dozen more narrowly focused bodies—was one of the most important changes in the King's first cabinet reshuffle. [42]

 

The King emphasized that stability was of the utmost importance, saying: “We will not allow anyone to tamper with our security and stability.” The King also referred to the Saudi economy: “We will be working to build a strong economy based on solid foundations that will lead to the diversification of sources of income, thereby creating better savings and job opportunities in both the public and private sectors.” The King also pledged to “improve health care services for all citizens throughout the Kingdom, so that health care centers and referral and specialized hospitals will be available to all citizens wherever they are.” With regard to the issue of housing, the King said: “We are going to implement practical and expeditious solutions to provide adequate housing for citizens.” With regard to education, he stated: “We have ordered its development through integrated public and higher education and the enhancement of its infrastructure to ensure compatibility between educational output and labor market needs.” [43]

 

III.      The Basic Law of Governance

The Basic Law is the most important of the three fundamental constitutional enactments promulgated in 1992. It specifically states that the Qur’an and the Sunnah of the Prophet Muhammad represent the Kingdom’s Constitution. [44] Article 7 of the Basic Law confirms the Shari’ah (Islamic religious law) as the bedrock of the Kingdom, stipulating that the Government derives its authority from the Qur’an and the Sunnah which are the principal sources of all the State’s administrative regulations. [45] It emphasizes that the State’s role and objective is to protect the principles of Islam and enforce the Shari’ah. [46] The document is guided by Islamic law when defining the nature, objectives and responsibilities of the State and the relationship between the ruler and the ruled based on brotherhood, consultation, friendship and cooperation. [47]

            

The Basic Law’s significance emerges when considering its similarity to the constitutions of other countries in terms of content. The Basic Law contains nine chapters: General Principles; Law of Governance; Saudi Social Values; Economic Principles; Rights and Obligations; State Authorities; Financial Affairs; and Audit Institutions. It confirms the monarchial system of the land [48] and reaffirms the following principles of governance: justice, consultation and the equality of citizens under the Islamic Shari’ah. [49] It emphasizes the basic features of the Saudi family and the importance of Islamic values, justice and family cohesion. [50] In addition, the Basic Law’s articles on economic principles, rights and obligations emphasize that the State must protect human rights in conformity with the Islamic Shari’ah, [51] safeguard the Kingdom’s public funds, [52] ensure the inviolability of private homes and private communications, [53] and guarantee the protection of private property [54] and individual freedom from arbitrary arrest and punishment, except in cases of due process of law. [55] It places the State under an obligation to provide health care for all citizens, support those “in situations of emergency, sickness and old age” [56] and enact laws to protect workers and employers. [57]

 

IV.   State Authorities

The Basic Law gives a detailed definition of each State authority, including the judicial authority, the executive authority and the legislative authority. It also addresses their interrelationships. [58] However, there is no separation of powers, especially between the legislative and the executive branches. [59]

 

1. The Executive Branch

The Kingdom’s executive branch consists of the King, the Council of Ministers, local governments, branches of ministries and other independent and quasi-independent public agencies.

 

The King exercises ultimate authority over the executive branch, being the focal point of all authority; [60] he is also commander-in-chief of all the military forces. [61] In accordance with article 55 of the Basic Law, the King conducts national policy in conformity with the provisions of Islam. He oversees the implementation of the Islamic Shari’ah, Saudi Arabian statutory laws, regulations and resolutions, as well as the nation’s system of government and the State’s general policies. [62] In times of emergency, the King is granted extraordinary powers which allow him to take urgent measures and enforce the regulations deemed necessary to deal with a national crisis. [63] In addition, the King exercises functions similar to those of a Prime Minister, [64] with the power to appoint and dismiss ministers. [65] He supervises the Council of Ministers, the ministries and the government agencies. He also directs overall State policy, provides guidance for the various government agencies and ensures the ongoing harmony and unity of the Council of Ministers. [66]

 

The Council of Ministers, chaired by the Prime Minister (the King), is the Kingdom’s direct executive authority. It is empowered to determine the nation’s domestic, external, financial, economic, educational, and defense policies. It plays the same supervisory role in regard to the conduct of the State’s general affairs. It has final authority over the executive and administrative affairs of all ministries and other government agencies. [67] It also has the authority to monitor the implementation of laws, regulations and resolutions, establish and organize public institutions and follow up on the implementation of general development plans. [68]

 

In addition, the Council of Ministers has the power to set up committees to review the conduct of ministries or other government agencies or examine specific cases that might be brought to its attention. [69] Several councils and committees have been established “to address particular issues falling within the Council of Ministers’ function of determining State policy”. The competence and membership of each council or committee and the nature of its decisions are always defined in the decree under which it was established.” [70] Examples of previous established councils and committees include: the Supreme Council for Higher Education, the Supreme Council for Islamic Affairs, the National Security Council and the Higher Committee for Administrative reform.

 

Local governments, branches of ministries and other public agencies in the Kingdom’s various regions are considered to be parts of the executive branch. The Regional Law divides the country into several regions which are subordinate to the central government and accountable to the Minister of the Interior. [71] The  Regional Law states that the purpose of dividing the country into several regions is to improve the level of administrative efficiency and development, maintain security and order and safeguard the rights and freedoms of citizens within the framework of the Islamic Shari’ah. [72] This indicates that the regions enjoy considerable financial and administrative independence as part of a major effort to decentralize authority in the Kingdom.

 

Finally, various independent and quasi-independent administrative agencies have been established to address the social, economic and administrative challenges that have been facing the Kingdom since its foundation. These agencies vary widely in their function, structure and power, each of which is defined in the agency’s establishing decree. Examples of these agencies can be classified as:

 

 

Most of these agencies are under the direct supervision of particular ministries or government agencies. [73] In addition, following his ascension to the throne on January 23, King Salman made sweeping changes to office holders and institutions, included the abolishment of the following councils and commissions:

 

 

Royal Decree No. A/69 of January 29, 2015 established two councils that are administratively linked to the Council of Ministers: the Council of Political and Security Affairs (CPSA) and the Council of Economic and Development Affairs (CEDA). [74] The Council of Political and Security Affairs is presided over by the Crown Prince, who is also Deputy Prime Minister and Minister of the Interior, and consists of nine members who are all from the foreign, security and intelligence services: the Minister for Foreign Affairs; Minister for the National Guard; Minister of Defense; Minister for Islamic Affairs, Endowments and Guidance; Minister of Culture and Information; Chief of General Intelligence; and other ministers of State and other members of the Council of Ministers. The Cabinet session of February 9, 2015 approved the organization of the departments of the Council of Ministers and, in particular, the Council of Political and Security Affairs’ responsibility to identify trends, visions and goals in political and security-related fields, review and coordinate strategies and plans therein and follow up on their implementation. [75]

 

The Council of Economic and Development Affairs is presided over by the Deputy Crown Prince, who is also Second Deputy Prime Minister and Minister of Defense, and is composed of 22 ministers. [76] All members of the Council are appointed by Royal Decree: the Minister of Justice; Minister of Petroleum and Mineral Resources; Minister of Finance; Minister of Water and Electricity; Minister of Labor; Minister of Housing; Minister of Hajj; Minister of Economy and Planning; Minister of Commerce and Industry; Minister of Transport; Minister of Communications and Information Technology; Minister of Social Affairs; Minister of Municipal and Rural Affairs; Minister of Health; Minister of Civil Service; Minister of Culture and Information; Minister of Agriculture; Minister of Education; and other ministers of State and other members of the Council of Ministers. The Cabinet session of February 9, 2015 approved the responsibility of the Council of Economic Affairs and Development to identify trends, visions and goals relating to economic affairs and development, review and coordinate strategies and plans in that regard and follow up on their implementation. [77]

 

Each council has a secretariat attached to the General Secretariat of the Council of Ministers that includes a number of advisors and specialists in the areas falling within its field of specialization. Each council also has a project management office, based in the General Secretariat of the Council of Ministers, with the task of verifying the commitment of the parties involved in the implementation of strategies, plans, orders, decisions, goals and visions relating to the functions of the council and monitoring the projects which those parties implement. [78]

 

2. The Legislative (Regulatory) Branch

The Islamic Shari’ah, derived from the Qur’an and the Sunnah, forms the basis of Saudi Arabia’s legal system. The Basic Law uses the term “regulatory authority” to refer to the Kingdom’s legislative authority, which is empowered to enact statutory laws and regulations and approve international treaties, agreements, regulations and concessions. Under the Islamic Shari’ah, God is the sole lawmaker; hence, the word “legislation”, which implies secular law, is not used in the Kingdom. The legislative authority is shared between the King, the Council of Ministers and the Consultative Council ( Majlis al-Shura ). [79]

 

The Basic Law states that the Islamic Shari’ah, divine in origin, is the basis of legislation. In addition to the rules of the Islamic Shari’ah, there is a vast range of statutory laws enacted in criminal, administrative, and commercial areas to keep pace with the Kingdom’s development. The King plays an essential legislative role in support of Shari’ah rule. [80] As the enforcer of divine law, the head of an Islamic State is granted broad discretion over matters of public interest—known as the field of Islamic public policy ( al‑siyasah al-shar’iyyah ). [81] Public interest ( al-maslahah al-mursalah ) is one of the main areas in which Islamic governments such as that of Saudi Arabia deal with the comprehensive development of the country. State regulations are lawful and enforceable as long as they do not contravene divine law. The Saudi Basic Law clearly relies on al-maslahah al-mursalah as a basis for regulation, but only where there is no clear text in Islamic law which could regulate a given issue. [82] The Basic Law stipulates that: “The regulatory authority shall lay down regulations and proposals to further the interests of the State, or remove what might be prejudicial thereto, in conformity with the Islamic Shari’ah. The said authority shall exercise its functions in accordance with this Law and the Council of Ministers and the Consultative Council Laws.” [83]

 

In Saudi Arabia, the King has a major and independent rule-making function. The Basic Law designates the King as the ultimate authority over and above all the State authorities, including the legislative authority. [84] He is empowered, as Head of State and Chairman of the Council of Ministers, to enact, repeal or amend any laws and regulations by Royal Order. [85] In addition, the legislative process, which includes the drafting and enactment of international treaties, agreements, regulations and concessions, is approved or amended by Royal Decrees after first being reviewed by the Kingdom’s legislative bodies (the Council of Ministers and the Shura Council). [86] The King is free to accept or reject proposals from either of those two legislative bodies.

 

2.1. The Council of Ministers

The Council of Ministers simultaneously undertakes both executive and legislative functions. [87] It shares the legislative function with the King [88] and the Shura Council. [89] Each minister has the right to propose a bill of law or regulation relating to the affairs of his ministry. Any member may propose what he deems worthy of discussion at meetings of the Council of Ministers, subject to approval by the Prime Minister. [90] No meeting of the Council of Ministers is considered valid unless it attains a quorum of at least two thirds of its members. Resolutions are not considered valid without majority approval. In the event of a tied vote, the Prime Minister has a casting vote. In exceptional cases, meetings of the Council of Ministers may be considered valid if only half of the members are present. In such cases, however, resolutions are not considered binding without the approval of at least two thirds of the members present. [91] More significantly, decisions of the Council of Ministers, including those relating to the approval of legislative proposals and amendments, are not considered final until approved by the King. [92]

 

The Bureau of Experts is the legislative arm of the Council of Ministers. It consists of a Director, Deputy Director and Assistant Director, a General Panel of Counselors and a number of special committees formed as required. The Bureau is entrusted with the following tasks and powers:

 

 

The Bureau has a General Panel of Counselors consisting of the Director, Deputy Director and Assistant Director as well as counselors. It convenes to study memoranda and minutes pertaining to bills of law, draft regulations and general rules prepared by members of the Panel and whatever the Chairman decides to bring before the Panel to be put into final format. The chairman and members of the Panel participate in several internal and external committees to review certain issues, take part in quasi-judicial committee meetings and attend conventions and seminars. [93]

 

2.2. The Shura (Consultative) Council

Legislative authority is also shared by the Shura Council , established pursuant to the Basic Law of 1992. In its current form, the Shura Council is an institution intended to exercise oversight functions and allow citizens to participate directly in the administration and planning of national policies and monitor the performance of government agencies, thereby opening up the Saudi decision-making process to greater public scrutiny and accountability. [94] In accordance with the Shura Council Law, every four years the King issues a Royal Decree inaugurating a new term of the Council. [95] The Council is composed of a chairman and 150 (previously 120) members. The King chooses the Shura Council members from among scholars and men of learning. [96] Fifty per cent of the Council’s membership must be replaced by newly selected members every four years. [97] Members of the Shura Council may not hold any other governmental or private managerial position unless so permitted by the King. [98]

 

The Shura Council submits opinions regarding public policy if so requested by the King, acting in his capacity as Chairman of the Council of Ministers. The Council has a broad mandate to comment on State affairs, including: the general economic and social development plan; international laws, charters, treaties, agreements and concessions; the interpretation of State laws; and annual reports submitted by ministries and other governmental bodies. [99] It has specialized committees, staffed by its members, which exercise the powers lying within its jurisdiction. [100] Most importantly, the Shura Council is empowered to propose new bills of law or amendments to existing laws and debate them within the Council. The Speaker of the Council submits its resolutions regarding new or amended laws to the King. [101] Unlike decisions of the Council of Ministers, two thirds of the Shura Council’s members must approve a legislative proposal or amendment for it to be adopted. Resolutions are not considered valid unless approved by a majority of the Council’s members. [102]

 

The opinions of the Shura Council are subject to review by the King, who decides which resolutions will be referred to the Council of Ministers. If the Council of Ministers endorses the views expressed by the Shura Council, the resolutions are issued once the King has granted his approval. Every legislative proposal or amendment which becomes law must be approved by the two Councils and the King. If the views of the two Councils vary, the matter is referred back to the Shura Council which adopts whatever resolution it deems appropriate. The new resolution is then presented to the King, who takes the final decision. [103]

 

In the final stages of the enactment of any statutory law, the Council of Ministers considers the resolution adopted by the Shura Council and reviews the minutes that have been prepared by the Bureau of Experts of the Council of Ministers, taking into account any recommendations that might have been made by the General Committee of the Council of Ministers. If the Council of Ministers accepts the Shura Council’s proposal, it endorses the legislation and its secretariat draws up a Royal Decree approving its promulgation. The Royal Decree approving the legislation calls upon the Chairman of the Council of Ministers together with the ministries, within their respective fields of jurisdiction, to implement the Decree in question. The Office of the Chairman of the Council of Ministers circulates copies of the Decree to the ministries and departments concerned, including the Shura Council.

 

If necessary, the secretariat of the Council of Ministers (Office of the Chairman of the Council of Ministers) may issue a letter to the minister concerned laying down rules for the implementation of the regulations contained in the new statutory law. These rules require final approval by the Council of Ministers. The statutory law can then be published in the Official Gazette ( Umm al-Qura ) and enters into force on the expiration of a period of time (usually specified in the final article of the legislation) following its publication. The original authenticated copy of the enacted legislation is forwarded to the Information and Studies Center attached to the Office of the Chairman of the Council of Ministers. The National Center for Documents and Archives, likewise attached to the Council of Ministers, then publishes the new legislation in the Official Gazette (See Chart 2) .

 

Chart 2: Legislative Authorities in Saudi Arabia

Legislative Authorities in Saudi Arabia
Press to enlarge


It is important to note that, when drafting any legislation, the legislative authority must take care to ensure that the legislation does not conflict with the clear text of the Qur’an or valid Sunnah since they are the Kingdom’s Constitution and take precedence over all other enactments, including the Basic Law. [104] In addition, proposed legislation must comply with the provisions of the fundamental laws (e.g. the Basic Law). Finally, the legislative authority must lay down regulations and proposals to further the interests of the State, and remove what might be prejudicial thereto, in conformity with the Islamic Shari’ah. [105]

 

2.3. Advisory Authorities (The Council of Senior Ulama)

The Council of Senior Ulama (Religious Scholars) heads the religious establishment in Saudi Arabia. It is an official body, comprising the Kingdom’s most senior scholars, created in 1971 to issue fatwas on questions submitted to it by the Government or otherwise requiring the establishment of general rules. [106] The Basic Law recognizes the need for such a council. It states that: “The source of fatwa (religious legal opinion) in the Kingdom of Saudi Arabia shall be the Book of God and the Sunnah of His Messenger. The Law shall define the hierarchy and jurisdiction of the Council of Senior Ulama and the Department of Religious Research and fatwa .” [107] Although it is not part of the legislative authority, the Council of Senior Ulama has been a participant in the legislative process of enacting statutory laws. In many cases, its participation has been crucial in gaining public support for such laws. [108] In the February 2009 governmental reshuffle, King Abdullah expanded the Council to 21 members and, for the first time in Saudi history, extended membership to representatives from all four schools of Sunni jurisprudence, not just the Hanbali madhab (school of law). [109] Similar bodies, albeit with a more academic composition and function, exist at the regional level. These include the Islamic Fiqh Academy of the Muslim World League, sponsored by Saudi Arabia and located in Makkah, and the International Islamic Fiqh Academy of the Organization of Islamic Cooperation which has its headquarters in Jeddah.

 

In August 2010, King Abdullah issued a Royal Decree stipulating that only officially approved religious scholars associated with the Council of Senior Ulama” would be competent to issue fatwas . In the text of the Decree delivered to the Grand Mufti, King Abdullah wrote: “As part of our religious and national duty, we call upon you to ensure that fatwas are issued only by members of the Council of Senior Ulama and other duly authorized persons. Although individual fatwas on matters such as worship and personal relations are exempt from this ruling, they should concern only the questioner. There should be a total ban on any topics involving strange or obsolete views.”  The Decree emphasized that it was a violation of Islamic law for unqualified individuals to issue fatwas , since that would undermine the official State institutions and encroach on the State’s jurisdiction.  The Decree also instructed the Grand Mufti to designate the scholars qualified to issue fatwas . [110] The Council has established a new Fatwa Committee, affiliated to the Standing Committee, to supervise the issuance of fatwas and prevent unauthorized scholars from interfering therein.  The new committee has opened offices throughout the Kingdom and is responsible for appointing approved scholars to evaluate the legitimacy of fatwas . [111] Such restriction was necessary because many individuals had begun to usurp the authority of official religious bodies and were issuing fatwas that gave rise to disputes and dissent among Muslims. [112]

 

3. The Judicial Branch

 

3.1. Introduction

The previous Saudi judicial system consisted of a Supreme Judicial Council, courts of appeal and courts of first instance (general courts and summary courts). Saudi Arabia also had an administrative judicial body known as the Board of Grievances (an independent administrative judicial system) which functioned in parallel with the court system and reported directly to the King. The Board’s judicial function was exercised through its first-instance and appellate courts. Each of these judicial bodies had jurisdiction over cases brought before it in accordance with the law. In addition, the Saudi legal system used to have several administrative committees that adjudicated in civil, commercial, administrative and criminal cases. The judicial jurisdiction of each committee was determined by the Decree under which it was constituted.

 

On October 1, 2007, King Abdullah issued Royal Decrees approving an overhaul of Saudi Arabia’s judicial system. The Law of the Judiciary established a High Court, which took over the functions of the Supreme Judicial Council as the highest judicial authority in the Kingdom. Another important change was the establishment of appellate courts in each province. The law made provision for specialized labor, commercial, criminal, personal status and civil courts, which are currently being established in areas, regions and centers as needed. Some of these courts are now hearing disputes that had previously been brought before special administrative committees.

 

The Law of the Board of Grievances ranks the Board’s hierarchy in the following order: seniority is held by the High Administrative Court, followed by the Administrative Courts of Appeal and, lastly, the Administrative Courts. The High Administrative Court was established to hear objections to rulings of the administrative courts of appeal. The administrative courts have jurisdiction in cases involving administrative decisions, compensation, contracts and disciplinary measures. King Abdullah also approved a functional approach with a view to ensuring a successful transition between the old and new systems.

 

Since the overhaul of Saudi Arabia’s judicial system has not yet been fully completed, this section presents a brief overview of the previous and current Saudi judicial systems and examines the qualifications, job performance and training of judges together with the safeguards provided to ensure their independence and impartiality.

 

3.2. The Previous Saudi Arabian Court System

In 1927, a Royal Decree inaugurated a relatively modern and sophisticated system of courts ‑ incorporating, for example, multiple-judge courts and regular appeals — which operated in the cities of Makkah, Madinah and Jeddah.  Several Royal Orders were subsequently issued to regulate various aspects of the Shari’ah courts. A Royal Order issued in 1931 included provisions regulating court procedure. [113] In 1938, the Shari’ah Judicial Responsibility Law was promulgated. This Law comprised 282 articles regulating in detail the Shari’ah courts, their types, their jurisdiction and their judgeships. [114] Later, between 1956 and 1960, the jurisdiction of the court system was extended to the entire country, thereby standardizing the national judicial system. More specifically, in 1957, King Sa’ud implemented a judicial reorganization throughout the realm to parallel that found in Makkah, Madinah, and Jeddah. In 1960, he unified the two systems under the Presidency of the Judiciary in Riyadh, which extended the regulations developed for a few cities to the entire country. [115] This was part of the nationwide administrative unification that King Abdulaziz had set in motion when he ordered the creation of the Council of Ministers just before his death on November 11, 1953. In 1970, a Ministry of Justice was created by King Faisal to administer the country’s courts. [116] From 1970 to 1975, a modern administrative system for the courts was created in accordance with the Law of the Judiciary adopted in 1975, which contained several sections covering various aspects of the current judicial system; this will be examined later in the present study. The revitalization of Saudi Arabia’s judicial system reflects the nation’s adaptability to modern developments without compromising its religious and cultural values. [117]

 

The Basic Law of Governance requires courts to “…apply the rules of the Islamic Shari’ah in the cases that are brought before them, in accordance with what is prescribed in the Qur’an, the Sunnah and statutes decreed by the Ruler which do not contradict the Book or the Sunnah.” [118] The application of Islamic law in the Saudi Arabian courts is based primarily on the rules of the Islamic Shari’ah as interpreted by the Hanbali School, the fourth orthodox school of law within Sunni Islam. [119] Although Saudi judges generally adhere to the Hanbali School of law, they theoretically enjoy a certain degree of discretion in adjudicating cases and are constrained solely by their own conscience in determining the will of God. [120] A Saudi judge is “guided ... not only by the rules of fiqh (Islamic jurisprudential) doctrine but ... by his own understanding of the texts of the Qur’an and Sunnah that support those rules; he believes that his judgment comes directly from those texts, not from the Hanbali books.” [121] Saudi judges also see themselves as morally guided and “…often appear as concerned with the present moral state of the parties as with their past acts or with legal outcomes.” [122] The judicial decisions of Saudi judges are legally valid and cannot be overruled unless they contradict an evident precept of the Qur’an or Sunnah or disregard interpretations or principles applied by higher courts. Saudi judges apply “ ijtihad [123] to reach decisions in cases not covered by the provisions of the Shari’ah. In such cases, they apply Islamic jurisprudential tools (e.g. analogy) to the sacred sources. In addition to the rules of the Islamic Shari’ah, a vast range of statutory laws have been enacted in criminal, administrative and commercial fields as required by the Kingdom’s development.

 

The competence of the previous Saudi judicial system was defined by the Law of the Judiciary, adopted in 1975. It was then reconfirmed in 1992 by the Basic Law of Governance. According to the Law of the Judiciary and the Basic Law of Governance, the courts have jurisdiction in all disputes and offences except those exempted from their jurisdiction by law. [124] However, different laws and regulations have granted jurisdiction in certain claims and offences to either the Board of Grievances or Administrative Committees. [125]

 

3.2.1. The Structure of the Previous Shari’ah (Ordinary) Court System

The 1975 Law of the Judiciary organized the court system in the following hierarchical order:

 

·        Supreme Judicial Council;

·        Courts of Appeal; and,

·        Courts of First Instance (General Courts and Summary Courts).

 

Each of these courts had jurisdiction in cases brought before it in accordance with the law (see Chart 3). [126]

 

Chart 3: Simple Structure of the Previous Shari’ah (Ordinary) Court System
Simple Structure of the Previous Shari’ah (Ordinary) Court System

3.2.1.1. Supreme Judicial Council

Article 5 of the Law of the Judiciary of 1975 designated the Supreme Judicial Council as the highest authority in the current judicial system. [127] The Supreme Judicial Council was composed of 11 members. Five full-time members held the rank of Appellate Chief Justice and constituted the Standing Panel of the Council. [128] Five part-time members included an Appellate Chief Justice or his deputy, the Deputy Minister of Justice and three members with the longest record of service as chief judges of the general courts in Makkah, Madinah, Riyadh, Jeddah, Dammam and Jazan. All the members constituted the Plenary Panel of the Council, which was presided over by its Chairman. [129] The Supreme Judicial Council was convened “as a Standing Panel composed of its full-time members, presided over by its Chairman or by a person designated from amongst the most senior members of the judiciary.” [130]

 

Under the 1975 Law of the Judiciary, the Supreme Judicial Council exercised several administrative, legislative, consultative and judicial functions. In its administrative function—as defined by article 7 of the Law—the Council played a supervisory role in the court system within the limits laid down by the Law. [131] It was responsible primarily for “supervising the courts, administering the employment-related affairs of all members of the judiciary, such as appointment, promotion, transfer, assignment and secondment, within the limits laid down by the Law, monitoring the proper discharge of their duties and assigning members of the Inspectorate to inspect, discipline and terminate the services of judges.” [132]

 

In its judicial function, the Council reviewed judgments in certain types of cases involving qisas (retaliatory punishment) , hudud ( Qur’anic prescribed punishment ) and ta’zir (discretionary punishment) penalties . In its legislative function, the Council’s role was crucial in establishing general principles and judicial precedents that lower courts were required to follow; the Council also looked into Shari’ah questions, referred to it by the Minister of Justice, that required a statement of general Shari’ah principles. In its consultative function, the Council reviewed and provided opinions on matters referred to it by the King or by the Minister of Justice. [133] Meetings of the Council’s Standing Panel were governed by certain procedural regulations concerning attendance and voting. [134]

 

3.2.1.2. Courts of Appeal (Courts of Cassation)

The Saudi Courts of Appeal were the second tier in the previous Saudi Arabian “ordinary judicial system.” A Court of Appeal was composed of a chief justice and a sufficient number of senior judges from the legal community. The Court consisted of several panels with jurisdiction in criminal, personal status and other cases not falling within the other two categories. The Court of Appeal was empowered to establish as many panels as it needed and these panels were presided over by the chief justice or one of his deputies. [135] Previously, there were two Courts of Appeal in Saudi Arabia. One was in Makkah, which heard appeals from the lower courts in the Western Provinces, while the other was in Riyadh, which heard appeals from the lower courts in the Central and Eastern Provinces. However, in the public interest and on the basis of a decision of the Court’s General Council, some of the panels used to hold all or part of their hearings in another city or establish branches in other cities. [136]

 

The Court of Appeal’s ruling was always delivered by a three-judge panel. However, in certain types of cases involving qisas, hudud and ta’zir penalties, a five-judge panel delivered the ruling. [137] Panels of the Court of Appeal used to issue contradictory rulings because the Court’s primary concern was to review the general and summary courts’ application of the Shari’ah. The General Council of the Court of Appeal was assigned to settle those conflicts and harmonize the principles applied by the summary courts, the general courts or panels of the Court of Appeal. [138] The General Council of the Court of Appeal consisted only of active judges. [139] It was convened to consider “…organizing and forming the necessary panels and specifying their respective jurisdictions.” [140] It also discussed “…matters which, under the provisions of the Law of the Judiciary of 1975 or other laws, are to be examined by a plenary session of the Court.” [141] More importantly, it decided on whether interpretations or principles should be abandoned. Article 14 of the 1975 Law of the Judiciary stipulated that:

 

If one of the court’s panels, while reviewing a case, deems it necessary to depart from an interpretation adopted by the same or another panel in previous judgments, the case shall be referred to a plenary ( en banc ) session of the Court. Permission for such departure shall be given by a decision of the plenary session adopted by a majority vote of not less than two thirds of its members. If the plenary session does not so render its decision, it shall refer the case to the Supreme Judicial Council for a decision. [142]

 

Meetings of the General Council of the Court of Appeal were governed by certain regulations concerning member attendance and voting. [143]

 

In general, the Courts of Appeal monitored the manner in which legal rules and the provisions of regulations were interpreted and applied by the general and summary courts. However, the primary function of the Court of Appeal was to review or hear objections to judgments issued by lower courts, which could be lodged either by the convicted person or the public prosecutor. Objections by convicted persons were permitted within 30 days from the date of the appellant’s receipt of a copy of the judgment, not counting official holidays. [144]

 

There were several circumstances in which a judgment warranted an automatic appeal to the Court of Appeal without a party filing an appeal, such as cases involving abduction, burglary or offences punishable by the death penalty. In particular, these circumstances included:

 

Cases in which the convicted person was the administrator of a waqf (religious endowment), a testamentary or legal guardian, a public treasury official or the equivalent thereof or if he was tried in absentia; cases involving abduction, burglary or offences punishable by death or amputation; cases in which the discretionary penalty exceeded forty lashes or ten days’ imprisonment; and cases in which the discretionary penalty involved both flogging and imprisonment. [145]

 

However, the Directives for the Review of Legal Judgments stipulated that judgments were final and not subject to review when the penalty imposed did not exceed—for example—500 riyals (US$ 133) in cash or when the penalty imposed was a ta’zir [146] (discretionary punishment) not exceeding forty lashes or ten days imprisonment. [147] The Court of Appeal usually reviewed cases without holding hearings, unless they were necessary. [148] Appellants did not appear before the Court unless it decided otherwise. [149] The Court of Appeal had discretionary power to “permit appellants to submit new evidence to support the grounds of their appeal.” [150]

 

Finally, it is noteworthy that the Court of Appeal did not reverse lower court judgments; it either upheld and finalized such judgments unanimously or by majority vote or referred them back to the lower court trial judge(s) for modification with whatever comments it wished to make. If the judge(s) of the lower court maintained his/their opinion, the Court of Appeal could overrule the original judgment and have another judge or panel of the lower court review the case. [151]

 

3.2.1.3. First-Instance Courts

There were two types of first-instance courts under the previous Saudi Arabian court system:

 

·        Summary Courts; and,

·        General Courts.

 

3.2.1.3.1. Summary Courts

Summary courts were composed of one or more judges. The composition, jurisdiction, and designation of the summary courts were determined by decision of the Minister of Justice on the recommendation of the Supreme Judicial Council. [152] The judgments of these courts were handed down by a single judge. [153] Summary courts used to have jurisdiction in certain hudud [154] (fixed punishment) cases, ta’zir cases (except those excluded by law) and decisions involving monetary damages or compensation that did not exceed one third of the diy’ah (blood money), [155] corresponding to 20,000 Saudi riyals or US$ 6,000). [156] They had jurisdiction in civil claims for sums amounting to less than 8,000 Saudi riyals (US$ 2,133). [157] There were more than 14 summary courts in Saudi Arabia. [158] A judge from each Shari’ah summary court was designated to hear juvenile cases at a social surveillance center or welfare institution in accordance with the procedures for the trial of juveniles. [159]

 

3.2.1.3.2 General Courts

The second type of first-instance court was the general court. These were composed of one or more judges. The composition, jurisdiction and designation of the Saudi Shari’ah general courts were determined by decision of the Minister of Justice on the recommendation of the Supreme Judicial Council. [160] In particular, the general courts had jurisdiction to hear offences for which the penalty prescribed was either the death penalty or qisas (retaliatory punishment). [161] They also had jurisdiction in civil claims for sums totaling more than 20,000 Saudi riyals (US$ 6,000). A single judge rendered judgment in a general court, except in cases involved penalties such as death or retaliatory punishment which required a three-judge panel. [162] In such cases, the judges hearing the case decided on the appropriate discretionary punishment or otherwise, as required by the Shari’ah. [163]

 

General courts were not empowered to impose a death sentence by way of ta’zir , except by unanimous decision of the panel of judges. According to article 129 of the Law of Criminal Procedure of 2001: “Failing such unanimity, the Minister of Justice shall assign two additional judges who, together with the three already sitting, shall be empowered to impose, either unanimously or by majority vote, a death sentence by way of ta’zir .” [164] There were more than 22 general courts in Saudi Arabia. [165]

 

The Law of the Judiciary of 1975 vested the Minister of Justice with power to define the jurisdiction of summary and general Courts on the basis of a recommendation by the Supreme Judicial Council. [166] A similar provision gave the Minister of the Interior the authority to specify, on the basis of a recommendation by the Director of the Bureau of Investigation and Public Prosecution, acts that constituted major offences warranting detention. [167] In 1976, the Minister of Justice issued an order defining the jurisdiction of the summary courts, as previously mentioned. In 2002, the Minister of the Interior likewise issued an order defining acts that could be deemed to constitute major offences. [168] Finally, it is noteworthy that litigation before the Shari’ah courts is governed by the Law of Procedure before Shari’ah Courts adopted in 2000 and the Law of Criminal Procedure adopted in 2001. [169]

 

3.2.1.3.3 Special Courts

The Law of the Judiciary permitted the establishment of specialized courts “by Royal Order on the recommendation of the Supreme Judicial Council.” [170] Two types of specialized court where established within the court system: the Courts of Guarantee and Marriage (in Riyadh and Makkah) [171] which exercised jurisdiction in civil suits concerning marriage, divorce and child custody [172] and the Juvenile Court (in Riyadh) which heard cases of juvenile delinquency. [173] In other provinces, juvenile cases were heard by a judge from the court exercising local jurisdiction. In districts or provinces that had juvenile care centers, the summary court used to assign one of its judges to adjudicate such cases in those centers.

 

3.2.2. The Previous Structure of the Board of Grievances System

The Board of Grievances ( Diwan al-Mazalim ) is the administrative judicial system of Saudi Arabia. Prior to the creation of the Board of Grievances in 1954, King Abdulaziz, following traditions set by Islamic rulers, personally adjudicated grievances and disputes, including those against government officials. King Abdulaziz made himself accessible daily to any citizen who appeared at his court with a grievance or a concern. Most effectively, he had installed next to the gate of his palace a box of which he alone possessed the key. A notice next to the box encouraged citizens to place therein any complaints that they had against an official, adding that “anyone who refrains from complaining of any injustice that he suffers at the hands of any official, whether senior or low ranking, has no one to blame but himself.” [174] However, the notice required any complaint to be made in writing and duly signed. Any false complaints would be investigated and punished, while any anonymous or pseudonymous complaints would be ignored. [175] As the Kingdom expanded territorially, King Abdulaziz required all his government officials to be as committed to this concept as he was. [176]

 

An increasing number of disputes between government agencies and private contractors led to the creation of the Board of Grievances, which closely resembled the Conseil d'Etat (Council of State) in France, being the Supreme Court for administrative justice. [177] It was first formed as a department of the Council of Ministers pursuant to the latter’s Law. [178] However, in 1955, a Royal Decree declared it an independent board. The Board of Grievances had the authority to receive and investigate complaints, after which it would submit its report on the facts and circumstances surrounding each complaint, together with its recommendations, to the government minister concerned. Within two weeks of his receipt of the report, the minister was required to respond to the Board. If he did not accept the Board’s recommendations, the Board would refer the matter to the King, who had the final decision on the matter. [179] At a later date, the Board was assigned jurisdiction in disputes of a criminal nature such as bribery and commercial fraud, which transformed the Board’s function from administrative and investigative to judicial and adjudicative. [180] In 1967, the King issued a Royal Order according the Board judicial independence from the Shari’ah court system. The Order stipulated that no lawsuit against a government agency should be heard by any Shari’ah court without the King’s consent. [181]

 

In 1982, an enactment made significant changes to the nature of the Board of Grievances. The enactment established an independent administrative judicial body called the Board of Grievances that functioned in parallel to the Shari’ah courts, reporting directly to the King and operating outside the jurisdiction of the Ministry of Justice. [182] The Board of Grievances was composed of a President, one or more Vice-Presidents and a number of Assistant Vice-Presidents and members specialized in Shari’ah and law. [183]

 

Although article 1 stated that the Board was an independent administrative judicial body, it was authorized to hear cases and disputes to which the Administration was not a party. It was empowered to temporarily adjudicate criminal and commercial disputes and had exclusive authority to enforce foreign judgments and foreign arbitration awards. It covered four main categories of disputes:

 

·        Disputes to which the Government was a party;

·        Disputes involving unethical business practices subject to statutory provisions;

·        Disciplinary actions against civil servants; and,

·        Execution of foreign judgments.

 

According to article 8 of the Law of the Board of Grievance adopted in 1982, the Board was competent to adjudicate the following administrative disputes:

 

(a)   Cases relating to the rights provided for in the Civil Service and Pension Laws;

(b)  Objections filed against administrative decisions on grounds of lack of jurisdiction, defect of form, violation or erroneous application or interpretation of laws and regulations or abuse of authority;

(c)   Compensation claims filed against the Government and independent public corporate entities in respect of their actions;

(d)  Cases involving contractual disputes to which the Government or an independent public corporate entity is a party;

(e)   Disciplinary cases filed by the Bureau of Control and Investigation;

(f)    Criminal proceedings brought against persons suspected of committing legally punishable offences of forgery, offences covered by the Repression of Bribery Law, offences covered by Royal Decree No. 43 of 29/11/1377 AH [June 16, 1958], offences covered by the Misappropriation of Public Funds Law promulgated by Royal Decree No. 77 of 23/10/1395 AH [October 29, 1975] and criminal proceedings brought against persons accused of committing legally punishable offences in which an order to hear such cases had been issued to the Board by the Chairman of the Council of Ministers;

(g)   Requests for implementation of foreign judgments;

(h)  Cases falling within the jurisdiction of the Board in accordance with special legal provisions; [184] and,

(i)    Requests by foreign courts to carry out precautionary seizure of property or funds inside the Kingdom. [185]

 

In addition, the Council of Ministers was authorized, under article 8, paragraph 2, of the 1982 Law of the Board of Grievances, to expand the Board’s jurisdiction. [186] However, the Board of Grievances did not hear requests pertaining to sovereign acts or objections filed by individuals against judgments or decisions delivered by courts or legal panels falling within their jurisdiction. [187]

 

The 1982 Law of the Board of Grievances offered limited guidance concerning the Board’s judicial structure, hierarchy and branches. It merely stated that the Board’s headquarters would be in the capital city [188] and that it “…would exercise its powers through Circuits the number, formation, subject-matter and venue of which would be determined by decision of the President of the Board.” [189] In addition to its headquarters in Riyadh, the Board had three branches, in Jeddah, Dammam and Abha. [190] The Board’s judicial hierarchy consisted of a number of specialized Circuits with specific jurisdiction defined by several decisions of the Board’s President. [191] The 1982 Law and the 1989 Rules of Procedure of the Board of Grievances defined the hierarchical structure of the Board of Grievances as follows:

 

·        Board of Appeal;

·        Appellate Circuits; and,

·        First-Instance Circuits (see Chart 4). [192]

 

Chart 4: Simple Structure of the Previous Board of Grievances System

صورة111

3.2.2.1. Board of Appeal Circuits

The Board of Appeal Circuits was the highest authority in the Board of Grievances’ system. The Board consisted of all the members of the appellate Circuits and three members of the first-instance Circuits who were selected by the Board’s President. [193] However, unlike the Supreme Judicial Council, which had broad jurisdiction comprising several administrative, legislative, consultative and judicial functions, the Board of Appeal decided only on the abandonment of interpretations or principles. If an appellate panel, when deciding a case, deemed it necessary to depart from an interpretation adopted or upheld by the same or another appellate panel, the matter was referred to the President of the Board, who submitted it to the Board of Appeal. A majority, tallying at least two thirds of the members of the Board of Appeal, was needed to adopt a new principle or precedent. [194]

 

3.2.2.2. Appellate Circuits

The Board’s appellate hierarchy comprised a number of administrative, criminal and commercial “scrutinizing Circuits” (hereinafter “appellate Circuits”) that functioned as appellate courts and had the final decision in grievances. Previously, there were three appellate Circuits established to carry out the functions of the Board of Grievances, thereby acting as administrative courts. The jurisdiction of these Circuits was defined by several decisions of the President of the Board. [195] Appellate Circuits were composed of three members appointed by the President of the Board, who designated one of them as the senior member of the panel. The President of the Board had discretionary authority to form an appellate panel consisting of one member to hear appeals in “minor cases” specified by a regulation. [196]

 

The 1989 Rules of Procedure of the Board of Grievances defined the judicial relationship between the appellate and first-instance Circuits. Under those rules, an appellate panel either reversed or upheld a judgment. In the event of reversal, it referred the case back to the issuing panel for adjudication. The appellate panel adjudicated cases in which, having been referred back to the panel which originally heard them, the latter panel insisted on its judgment and the appellate panel was not persuaded by the latter’s arguments. If the appellate panel adjudicated the case, its decision was taken only after hearing the statements of the litigants. In such case, the judgment delivered by the appellate panel was final. [197] Judgments upheld by the appellate panel were also final. However, in criminal and disciplinary cases, final judgment was reviewed if new evidence emerged that might lead to acquittal. In such circumstances, the final judgment was reviewed within thirty days of the panel having received knowledge of the new evidence. [198]

 

3.2.2.3. First-Instance Circuits

At the lower level of this hierarchical system, there were a number of first-instance administrative, criminal, disciplinary, commercial and subsidiary Circuits that reflected the diverse jurisdiction of the Board. [199] Due to the Board’s administrative and non-administrative jurisdiction, large numbers of judicial Circuits were created to undertake the Board’s caseload. [200] The Board’s first-instance Circuits were modified regularly. Over 80 Circuits were created, one third of which were devoted to the adjudication of commercial disputes and criminal cases. [201] First-instance Circuits were also composed of three members appointed by the President of the Board, who designated one of them as the senior member. The President of the Board had discretionary authority to form first-instance Circuits consisting of one member to hear “minor cases” specified by a regulation. [202]

 

Administrative proceedings were instituted when a plaintiff filed a complaint with the President of the Board of Grievances or a person designated by him. The President then referred the case to the competent circuit. [203] When a particular circuit received an administrative case, it set a hearing date and informed the plaintiff, the defendant and other administrative bodies in accordance with articles 2 and 3 of the Rules of Procedure of 1989. [204] The hearings were conducted in public unless the circuit decided to hold them in camera in order to safeguard morals or preserve public order. [205] The competent circuit rendered its judgment after examining the case documents and hearing the statements of both parties to the dispute, or their representatives, and confidentially deliberating in session. In Circuits consisting of more than one member, judgments were rendered by majority vote . [206] The circuit’s judgment recorded only a substantiated verdict. Any dissenting opinion was noted in the session minutes, which also indicated the majority response to such dissent. [207] A first-instance circuit judgment became final unless the parties decided to exercise their right to appeal the judgment within 30 days from the date of receipt of the judgment notice. [208]

 

3.2.3. Administrative Committees

Several Administrative Committees with judicial powers had been periodically created since the unification of Saudi Arabia in 1932. These committees had jurisdiction in civil, commercial, administrative and criminal cases and disputes arising from the implementation of several laws and provisions. The jurisdiction of each committee was determined by the decree that created it. Examples of administrative committees are:

 

·        The Tax Committees; [209]

·        The Committees for the Penalization of Traffic Violations; [210]

·        The Mining Disputes Committee; [211]

·        The Fraud, Misrepresentation and Speculation Committee; [212]

·        The Banking Disputes Settlement Committee; [213] and,

·        The Copyright Committee. [214]

 

The Basic Law of Governance did not recognize these committees as part of the judicial authority. Although they were established to help to ease the heavy caseload of the Saudi courts and cope with the Kingdom’s social and economic development requirements, they were subject to criticism insofar as they introduced adjudicative action by the “Executive Branch.” [215]

 

Chart 5: Structure of the Previous Judicial System in Saudi Arabia

The Previous Judicial System
Press to enlarge


3.3. The Current Judicial System

On April 2, 2005, a Royal Order was issued approving amendments in principle to the structure of the judicial system. According to the 2005 Royal Order, courts specialized in labor, commercial, civil and criminal cases are to have complete jurisdiction in their areas of specialization. The jurisdiction of the new specialized courts and the general courts will be defined so as to avoid conflict over jurisdiction. [216] Article 49 of the Basic Law states that “courts [of different types and degrees] are empowered to arbitrate in all disputes and crimes.” [217] To pave the way for an effective national judicial system and overcome the obstacles facing judges and litigants, the Government annulled the Law of the Judiciary of 1975 and took the initiative to develop a “New Judicial System” comparable to those of other countries around the world in order to achieve sustainable development. On October 1, 2007, King Abdullah issued a Royal Decree approving a new body of laws regulating the judiciary and the Board of Grievances. The new laws replaced regulations that had been in force for more than 30 years in the case of the judiciary, and about 25 years in the case of the Board of Grievances. The Kingdom allocated a budget of 7 billion riyals (US$ 1.8 billion) to revamp the judicial sector with a view to upgrading the judiciary and developing it in a comprehensive and integrated manner. [218] These funds are being used to renovate and build new courts and train judges. The Saudi judiciary is now passing through a transitional period in which the “New Judicial System” is in the process of being fully implemented. [219] The most important features of the new system are as follows:

 

 

In a further step in the development of the judiciary, Royal Decree No. M/1 was issued on November 25, 2013, enacting a new Law of Procedure before Shari’ah Courts, supplemented by Royal Decree No. M/2 of the same date enacting a new Law of Criminal Procedure. The two Laws focus on the objective rather than the personal aspect from the stage of preliminary litigation to appeal, specify the channels of appeal against court rulings, define the pleading procedures before higher courts and higher administrative courts, guarantee the right of defense for the accused, including the right of access to legal counsel even for persons unable to afford it, secure the right of women to expeditious litigation and appeal procedures, curb procrastination as far as litigation procedures before religious courts are concerned, ensure free-of-charge flexible procedures and shorten the duration of litigation. In compliance with the two Laws, the Council of Ministers adopted resolution No. 142 of January 1, 2015 enacting the Implementing Regulations of the Law of Criminal Procedure, followed by the Minister of Justice’s order No. 39933 of March 20, 2014 enacting the Implementation Mechanism of the Law of Procedure before Sharia’h Courts. [221]

 

In conclusion, the intention of the Government is to shape the Saudi judicial system so that it can meet a higher judicial standard set by ongoing reforms beginning with the promulgation of the Law of Criminal Procedure and Law of Procedure before Shari’ah Courts in 2013. The new Law responded to the social and economic needs of Saudi society and constituted a major step toward meeting the requirements of a modern and thriving economy, while also improving the business environment. The Law affirmed the independent and impartial nature of the Saudi judicial system and will also ensure the highest possible fair trial standards.

 

3.3.1. The Role of the Supreme Judicial Council

Under the Law of the Judiciary of 2007, the Supreme Judicial Council no longer serves as the Kingdom’s highest court. However, it continues to oversee administrative aspects of the judiciary. The Council is composed of a chairman and ten members: the President of the High Court, four full-time members with the rank of Appellate Chief Justice appointed by the King, the Deputy Minister of Justice, the Director of the Bureau of Investigation and Public Prosecution, and three members possessing the qualifications required of an Appellate Judge, appointed by the King. All Supreme Judicial Council members serve for a renewable term of four years. [222]

 

The Supreme Judicial Council plays several administrative roles. In its administrative capacity, the Council is responsible for supervising the courts and judges, as stated in article 6 of the Law of the Judiciary of 2007. It administers the employment-related affairs of all members of the judiciary within the limits laid down by the Law. Such affairs include promotions, transfers, assignments, secondments and training. The Council also monitors the proper discharge of their duties in accordance with the established rules and procedures in order to ensure the independence of judges. In particular, the Council has the authority to:

 

 

At the end of each year, the Council prepares a comprehensive report, listing all its achievements, constraints and proposals, for submission to the King. [223] In addition, the Supreme Judicial Council has a Jurisdictional Conflict Committee vested with authority to settle jurisdictional conflicts and conflicts arising between two final judgments rendered by the ordinary and the Board of Grievances’ courts. [224] Meetings of the Council’s Standing Panel are governed by procedures regulating attendance and voting. [225] The Council has established several committees, including a Judicial Disciplinary Committee [226] and a Judicial Inspection Department. [227]

 

3.3.2. The Current Ordinary Courts System

The Law of the Judiciary organizes the court system in the following hierarchical order:

 

o    General Courts;

o    Criminal Courts;

o    Personal Status Courts;

o    Commercial Courts;

o    Labor Courts; [228] and,

o    Enforcement Courts, recently created, (See Chart 6)

 

Chart 6: Simple Structure of the Current Ordinary Court System

صورة1

3.3.2.1. High Court

The High Court assumed the previous Supreme Judicial Council’s main function as the highest authority in the judicial system. The High Court, based in Riyadh, is composed of a President - possessing the qualifications required of an Appellate Chief Justice - appointed by Royal Order, together with a sufficient number of judges holding the rank of Appellate Justice, appointed by Royal Order on the recommendation of the Supreme Judicial Council. [229] The High Court exercises its jurisdiction through specialized circuits (criminal, personal status, commercial and labor, as needed) comprising three-judge panels, except for the criminal division, composed of a five-judge panel, which reviews judgments in certain types of cases involving qisas , hudud and ta’zir penalties . [230] The chief judges of the High Court circuits are appointed by decision of the Supreme Judicial Council on the recommendation of the President of the High Court. [231]

 

The High Court plays several legislative, consultative and judicial roles. In addition to the functions provided for in the Law of Procedure before Shari’ah Courts and the Law of Criminal Procedure of 2013, the Court supervises the implementation of Islamic law (Shari’ah) and regulations enacted by the King, which are matters falling within the general jurisdiction of the judiciary. The High Court also reviews rulings issued or upheld by the Courts of Appeal. Its review is mandatory in cases of major offences involving qisas or hudud . In this regard, the High Court acts as a court of subject-matter/trial court. [232] It can therefore be said that cases involving certain major offences are reviewed at three judicial levels instead of two, which reflects the Kingdom’s desire to ensure justice through a high standard of review in these types of offences.

 

In addition, the High Court reviews judgments and decisions issued or upheld by the Courts of Appeal on matters to which reference has not already been made. These include questions of law and questions of procedure - not questions of fact - if the objection to a judgment is based on:

 

·        A violation of the provisions of the Islamic Shari’ah or regulations issued by the King that do not contradict Shari’ah rules;

·        Entry of judgment by a court not properly constituted in the manner prescribed by the Law of the Judiciary or other regulations;

·        Entry of judgment by an incompetent court or division; and

·        Fault in the summary of the facts or improper description of the case. [233]

 

The High Court also reviews and decides on petitions for the rehearing of a case that has been stricken off twice because of the plaintiff’s failure to attend court hearings without an excuse acceptable to the court. [234]

 

The High Court renders decisions on petitions for review of final judgments in the following circumstances:

 

(a)    If the judgment was based on documentary evidence that was subsequently found to be a forgery or on a testimony that the competent agency subsequently deemed to be perjurious;

(b)   If, subsequent to the judgment, the petitioner obtained conclusive evidence in his favor that he was unable to produce before the judgment;

(c)    If an act of fraud was committed by the adversary which would have influenced the judgment;

(d)   If the judgment awarded what the plaintiffs did not request, or more than they requested;

(e)    If the text of the judgment was inconsistent;

(f)     If the judgment was a default judgment;

(g)    If the judgment was rendered against a person not properly represented in the proceedings. [235]

 

Furthermore, whenever there is a dispute affirming or denying venue, the case is referred to the High Court to settle the dispute. [236] The High Court has a General Council, chaired by the President of the High Court, [237] which plays a crucial role in establishing general principles and precedents that should be followed by lower courts and in considering other issues addressed by the Law of the Judiciary or other enactments. Decisions of the General Council are rendered by a majority vote of its members in attendance. In the event of a tie, the highest ranking judge has a casting vote. All decisions adopted by the High Court’s General Council are final . [238] If one of the High Court circuits, while reviewing a case, deems it necessary to depart from an interpretation adopted by the same or a different division of the Court in previous judgments, the case is referred to the President of the High Court, who submits it to the High Court’s General Council for a decision. [239]

 

3.3.2.2. Courts of Appeal

The Law of the Judiciary of 2007 introduced courts of appeal as a safeguard, empowering them to overturn decisions by lower courts. The Law establishes one or more courts of appeal in each of the Kingdom’s provinces. Each court functions through specialized circuits comprising three-judge panels, except for the criminal division which reviews judgments in cases involving certain major offences, including those carrying qisas, hudud and ta’zir penalties . [240] Courts of appeal consist of labor, commercial, criminal, personal status and civil circuits. [241] Specialized appeal circuits may be established in the districts of each province in which a court of appeal is located. [242] Each division is composed of a chief justice, appointed by the president of the court, and members holding the rank of appellate judge. The courts of appeal hear appealable decisions from lower courts. In addition to the two courts in Riyadh and Makkah, the Ministry of Justice is opening 11 new courts of appeal in other provinces. [243]

 

All judgments rendered by the first-degree courts are appealable except for judgments in petty cases, as defined by the Supreme Judicial Council. [244] A court of appeal renders its judgment after hearing the litigants’ arguments in accordance with the Law of Procedure before Shari’ah Courts and the Law of Criminal Procedure of 2013. [245] It also renders decisions on petitions for review of its own judgments in the following circumstances:

 

(a)    If the judgment was based on documentary evidence that was subsequently found to be a forgery or on a testimony that the competent agency subsequently deemed to be perjurious;

(b)   If, subsequent to the judgment, the petitioner obtained conclusive evidence in his  favour that he was unable to produce before the judgment;

(c)    If an act of fraud was committed by the adversary which would have influenced the judgment;

(d)   If the judgment awarded what the plaintiffs did not request, or more than they requested;

(e)    If the text of the judgment was inconsistent;

(f)     If the judgment was a default judgment;

(g)    If the judgment was rendered against a person not properly represented in the proceedings. [246]

 

No objection may be made to rulings issued before the case is decided and with which the litigation does not end wholly or partially except in conjunction with an objection to the judgment on the merits. However, objection before judgment on the merits may be permitted against a decision to suspend the case, provisional or interlocutory injunctions, enforcement orders or declarations of lack of jurisdiction before rendering judgment on the merits. [247]  

 

An appellate court considers the appeal or review request in the light of the case file and any new pleas or evidence presented by the appellants in support of the grounds for their objection as mentioned in the memorandum. After hearing the appellants’ submissions in the appeal or review request if it believes that such request requires submissions, the court issues a decision upholding or annulling the judgment in whole or in part and ruling on the nullified part. [248] If the appellate court determines that the consequences of the provisions of the judgment in cases reviewed without proceedings are consistent with its Shari'ah premises, it upholds the judgment and draws the attention of the judge to whatever comments it may have made, provided that such comments do not nullify the judgment. If the judgment is nullified in whole or in part, the court issues a ruling on the nullified part after hearing the appellants’ statements. [249]   If the appellate court nullifies a judgment of a first-degree court on grounds of lack of jurisdiction or accepts a summary plea thereon, the proceedings are suspended and it refers the case back to the court which rendered judgment to consider the merits thereof. [250]

 

3.3.2.3. First-Degree Courts

First-degree courts are being established in the Kingdom’s provinces, governorates and districts in accordance with the needs of the system. [251] First-degree courts consist of general, criminal, commercial, labor and personal status courts and comprise specialized circuits including enforcement, approval and traffic circuits. They are composed of single- or three-judge benches as specified by the Supreme Judicial Council. [252] In addition, the Supreme Judicial Council specifies the jurisdiction of the single-judge general courts. [253] However, without prejudice to the Law of the Board of Grievances of 2007, courts usually have jurisdiction to render decisions in respect of all disputes and offences in accordance with the court jurisdictional rules as set forth in the Law of Procedure before Shari’ah Courts and the Law of Criminal Procedure of 2013. [254]

 

3.3.2.3.1 General Courts

General courts have jurisdiction in all claims and cases not under the jurisdiction of other courts, notaries public or the Board of Grievances. According to article 31 of the Law of Procedure before Shari’ah Courts of 2013, general courts have jurisdiction over the following:

 

(a)    Lawsuits involving property, disputed ownership thereof, a right relative thereto or faults on the part of the owners or beneficiaries thereof and lawsuits to restrain interference with possession or for recovery of possession, vacation, payment of rent or contribution thereto, unless otherwise stipulated herein;

(b)   Issuance of title deeds or registration of endowments;

(c)    Lawsuits arising from traffic accidents or violations of the Traffic Law or its implementing regulations. [255]

 

General courts in the governorates without district courts have jurisdiction over all lawsuits, cases and the like which are subject to the jurisdiction of such district courts unless otherwise decided by the Supreme Judicial Council. [256] General courts in governorates and districts consist of one or more specialized circuits, according to the needs of the system, comprising one or more judges as specified by the Supreme Judicial Council. Specialized criminal, personal status, commercial and labor circuits may be established in general courts in governorates and districts where no specialized courts have been established. [257] Moreover, where necessary, the Supreme Judicial Council may assign one or more circuits to hear pilgrims’ cases. [258] In cases other than those requiring a visit to the site of a dispute, courts should not hold their hearings in places other than their respective premises. However, by decision of the Supreme Judicial Council, courts may, when necessary, hold their hearings elsewhere—even if the new location falls outside their areas of jurisdiction. [259] Specialized circuits in governorate and district general courts have the same jurisdiction as the specialized courts and are composed of one or more judges. [260]

 

3.3.2.3.2 Criminal Courts

The criminal courts consist of the following specialized circuits: qisas (retaliatory punishment), hudud (Qur’anic prescribed punishment), ta’zir (discretionary punishment) and juvenile circuits. A criminal court is composed of a three-judge panel. Other offences specified by the Supreme Judicial Council are heard by a single judge. All the previous summary courts have been converted into criminal courts. [261]

 

On September 17, 2014, the Ministry of Justice inaugurated criminal courts in major cities throughout the Kingdom. The Ministry is aiming to establish 18 criminal courts and 25 criminal circuits in general courts around the Kingdom. All the 101 criminal (first-degree and appeal) circuits of the Board of Grievances are in the process of being transferred to the jurisdiction of the criminal courts of the ordinary judicial system. [262]

 

3.3.2.3.3. Personal Status Courts

The personal status, labor and commercial courts comprise specialized circuits as needed and consist of one or more judges as specified by the Supreme Judicial Council. [263]  

 

Disputes relating to divorce and other family and personal matters are settled by the personal status courts. The two existing courts of guarantee and marriage located in Riyadh and Makkah are being transformed into personal status courts. According to article 34 of the Law of Procedure before Shari’ah Courts of 2013, personal status courts have jurisdiction over the following:

 

(a)   All personal status cases including:

1.       Registration of marriage, divorce, khul’ [the right of a woman to seek a divorce from her husband], divorce at the insistence of the wife, dissolution of marriage, raj’ah [return], custody, maintenance and visiting rights.

2.      Registration of endowments, probate, paternity, absence, death and determination of heirs.

3.      Legacies and division of succession, including disputed property, shares in endowments or wills, minors and absentees.

4.      Designation of trustees, guardians and administrators, empowering them to perform actions that require the judge’s permission and dismissing them if required, interdiction of spendthrifts or lifting thereof. The regulations herein shall determine the necessary procedures therefor.

5.      Recording authorizations of mute persons who cannot read or write.

6.      Marrying of women who have no guardians or whose marriage is being prevented by their guardian.

(b)  Lawsuits arising from personal status issues;

(c)   Lawsuits filed for enforcement of the penalties prescribed in the Law of the General Authority for Custody of the Properties of Minors or Persons of Equivalent Status. [264]

 

On August 19, 2014, Saudi Arabia's Ministry of Justice inaugurated personal status courts, the first in a series of specialized courts, in major cities including Riyadh, Makkah, Jeddah, Madinah and Dammam as part of the Kingdom’s efforts to modernize its judicial system. These courts will not, however, review litigation proceedings, which will remain under the purview of the general courts. The Ministry also established 88 single-judge circuits in all of the Kingdom’s provinces.  These courts and circuits are staffed by judges who have received extra training in cases involving divorce, alimony and child custody. [265]

 

3.3.2.3.4. Labor Courts

According to article 34 of the Law of Procedure before Shari’ah Courts of 2013, labor courts have jurisdiction over the following:

 

(a)    Disputes relating to employment contracts, wages, labor rights, occupational injuries and award of compensation in respect thereof;

(b)   Disputes relating to the imposition of disciplinary penalties by the employer on the employee, or exemption therefrom;

(c)    Lawsuits filed for enforcement of the penalties prescribed in the Labor Law;

(d)   Disputes arising from lay-offs;

(e)    Complaints by employers or employees objecting to any resolution issued by any competent body in the General Organization for Social Insurance relating to registration, subscription or compensation;

(f)     Disputes involving employees subject to the provisions of the Labor Law, including civil servants;

(g)    Disputes arising from the application of the Labor Law and the Social Insurance Law, without prejudice to the competence of the other courts and the Board of Grievances. [266]


The Ministry of Justice is preparing to inaugurate labor courts in 2017. The Committee on the Implementation of the Law of the Judiciary is carefully reviewing the rules of procedure of these courts to ensure that they are properly implemented. The labor courts will be established in cooperation with the Ministry of Labor and a specialized committee will train employees and judges and allocate buildings for these courts in accordance with Ministry of Labor studies and directives. [267] Judges will also be supported by administrative staffs. [268] Five labor courts will be opened in major cities, including Riyadh, Makkah, Jeddah, Madinah and Dammam, with 34 labor circuits in general courts in other cities throughout the Kingdom. [269]

 

3.3.2.3.5. Commercial Courts

According to article 35 of the Law of Procedure before Shari’ah Courts of 2013, commercial courts have jurisdiction over the following:

 

(a)    All commercial disputes, whether principal or consequential, arising among traders;

(b)   Lawsuits filed against traders because of the principal or consequential acts thereof;

(c)    Disputes arising among partners in partnerships;

(d)   All lawsuits and violations relating to commercial law, without prejudice to the jurisdiction of the Board of Grievances;

(e)    Bankruptcy lawsuits, interdiction of bankrupts or lifting thereof

(f)     Other commercial disputes. [270]

 

The commercial courts are scheduled to begin operating in 2017. They will be first established in Riyadh, Jeddah and Dammam, with 11 commercial circuits in general courts throughout the Kingdom. All current commercial cases will be referred to these courts. Judges serving in the commercial circuits of the Board of Grievances will be transferred to these courts. Employees currently working for labor committees will be transferred to the labor courts, each of which will have a judge and two labor consultants. These courts will be inaugurated sequentially in the provinces and governorates. [271]

 

The current judicial system has jurisdiction over most of the civil, commercial and criminal disputes previously heard by the administrative committees. The commercial and labor courts will hear disputes that were previously adjudicated by the specialized committees of the Ministry of Commerce and Industry and the Ministry of Labor, which had been criticized because their decisions were not always enforceable and were challenged in the courts; [272] questions had also been raised regarding the impartiality and independence of those committees. The commercial circuits of the first-instance and appellate courts of the Board of Grievances are in the process of being transferred (with all their judges, cases, etc.) to the new judicial system’s first-degree and appellate commercial courts. [273]  In addition, the Council of Ministers’ Bureau of Experts has established a committee to review, and propose due amendment of, all laws and regulations affected by this transition. [274] The Supreme Judicial Council is studying (as required by the implementing regulations of the Laws of the Judiciary and the Board of Grievances) the situation of the administrative committees exempted from this transition (the Banking Disputes Settlement, Financial Market and Customs Committees) in order to complete the regulatory procedures. [275]

 

3.3.2.3.6. Enforcement Courts

Prior to the new Enforcement Law, parties had to bring applications for the enforcement of foreign judgments and arbitral awards before the Board of Grievances. [276] Article 19 of the Law of the Judiciary of 2007 stipulates that the provincial general courts should include specialized enforcement circuits with a single or three-judge panel as determined by the Supreme Judicial Council. [277] The new Enforcement Law, promulgated by Royal Decree No. M/53 in March 2013, abandons the old system of enforcement proceedings before the Board of Grievances, dating from 1982, and assigns enforcement to a relatively new jurisdiction, the “enforcement judge”. [278] The Ministry of Justice took the initiative in opening “enforcement circuits” in general courts throughout the Kingdom in accordance of article 19 of the Law of the Judiciary of 2007 and has already established more than 160 such circuits which are contributing to the administration of justice, giving effect to court judgments and expediting their enforcement. [279]

 

Article 9 of the Law of the Judiciary of 2007 empowers the Supreme Judicial Council to establish specialized courts subject to approval by the King. In addition, article 8 (3) of the Enforcement Law stipulates that the Supreme Judicial Council may, when necessary, establish specialized enforcement courts. Due to the heavy caseload, King Abdullah issued a Royal Order for the establishment of such courts. Pursuant to that Royal Order, the Supreme Judicial Council adopted resolution No. 530 - 4 - 34 of August 27, 2014 establishing specialized enforcement courts in Riyadh, Makkah and Jeddah as a first stage. [280] These courts will ensure the speedy execution of judgments delivered by other courts, thereby helping to protect people's rights and avoid delays. [281]

 

The Enforcement Law contains provisions that affect all aspects of the enforcement of domestic and foreign judgments as well as arbitral awards. It also defines the jurisdiction and powers of the "enforcement judges", who will play a key role in the enforcement of civil judgments and awards in the Kingdom.

 

Each enforcement court consists of a single-judge panel as determined by the Supreme Judicial Council . [282] Article 1 of the Law defines “enforcement judges” as: “the chief justices and judges of enforcement circuits, enforcement court judges, or judges of single-judge courts.” [283] The enforcement judge is responsible for, inter alia, enforcing or overseeing the enforcement of all judgments and awards in the Kingdom, except for judgments and decisions rendered in administrative and criminal cases. The enforcement judge is required to comply with the provisions of the Law of Procedure before Sharia’h Courts of 2013 unless the Enforcement Law stipulates otherwise. [284] He may request the assistance of the police and the competent authorities, impose and lift travel bans, order detention and release, require a declaration of assets and examine insolvency (bankruptcy) proceedings. [285] All decisions of the enforcement judge are final, although his judgments in enforcement disputes and insolvency proceedings are subject to appeal. The appellate judgment is final. [286]

 

Article 9 provides for compulsory enforcement upon presentation of a writ of execution, including a final arbitral award.  It stipulates that: “Mandatory enforcement is permissible only by writ of execution for entitlement to a determined amount, at time of performance; writs of execution consist in:

 

1.       Judgments , decisions and orders issued by the courts and competent judicial  commissions ;

2.      Arbitral awards that are annexed to the enforcement order in accordance with the arbitration law;

3.      Reconciliation statements approved by the courts;

4.      Commercial papers;

5.      Certified documents;

6.      Judgments, judicial orders, arbitral awards and certified docume nts issued in foreign countries;

7.      General papers the content of which is deemed to be totally or partially in due and proper form;

8.      Other contracts and papers which the law endows with the force of writs of execution. [287]

 

Article 10 stipulates that appeals against the enforcement judge’s decision suspend its enforcement. [288] Under article 11, the enforcement judge may enforce a foreign arbitral award only on the basis of the principle of reciprocity and provided that the party seeking enforcement can prove that:

 

1.       Saudi courts do not have jurisdiction in the dispute;

2.      The award was rendered following proceedings in compliance with the requirements of due process;

3.       The award is in final form in accordance with the law of the seat of the arbitration;

4.      The award does not contradict a judgment or order issued on the same subject by a judicial authority with jurisdictional competence in the Kingdom;

5.       The award does not contain anything that contradicts Saudi public policy. [289]

 

Article 7 allows the enforcement judge to take “all precautionary measures” and “seek assistance from the authorities concerned if a party should resist or violate an enforcement order. [290] In addition, the new Enforcement Law lays down the procedures available to an enforcement judge in pursuit of enforcement; they include provisional attachment (arts. 23-33), enforceable attachment (arts. 34-48), sale of attached funds (arts. 49-59), debtor funds under third-party custody (arts. 60-67), direct enforcement (arts. 68-72) and procedures applicable in the event of insolvency of the party against whom the award is to be enforced (arts. 77-92). [291]

 

As already indicated, enforcement of foreign judgments and arbitral awards lay within the jurisdiction of the Board of Grievances, the procedures of which were lengthy and exhausting. [292] The new Enforcement Law constitutes a significant step towards the harmonization of Saudi law with international standards and facilitation of the enforcement of arbitral awards through the creation of a specific jurisdiction and clearly defined procedures applicable to such enforcement. [293] It restored confidence in business transactions that require prompt settlement of trade disputes by enforcement order. Between October 2014 and April 2015, enforcement courts in the Kingdom disposed of as many as 7,946 cases of claims and enabled recovery of over 10 billion (approximately $2,7 billion) Saudi riyals from traders and other parties. The claims involved checks, bills, contracts, bonds and coupons. A total of 225 enforcement departments implemented the operations. The Ministry is coordinating with a number of government bodies, including the Ministry of the Interior, to rapidly enforce travel bans ordered by the courts to prevent defaulters from offering further services to debtors. The Saudi Arabian Monetary Agency was also involved in the operations since it supervises financial institutions in the Kingdom. Such procedures used to take months to be implemented but now, with the electronic link, they take only minutes in the majority of cases. [294]

 

3.3.3. Specialized Courts

The maintenance of internal and external security is often regarded as the primary duty of the State since, without security, protection of the other values and interests of the State is impossible. Governments accept the fact that the internal and external dangers of “national security offences,” such as terrorism, pose an exceptionally serious threat to society. Such threats have proved particularly difficult to deter and obtain convictions in respect thereof without special courts, special offences and extraordinary police powers, which distinguish these special criminal acts from “ordinary” criminal acts.  National security offences are frequently identifiable by the following traits or aspects: large-scale impact on members of society; criminal behavior, including violence; creation of fear; and the aim of achieving religious or political objectives through methods that undermine the structures of government. Many States have introduced special courts, designated as “national security courts,” in their jurisdiction.

 

The traditional understanding of “national security courts” is a system of special courts the jurisdiction of which is limited to offences against State security. The function of this type of court is to ease or remove the usual statutory restraints in normal due process by creating, interpreting and, most importantly, enforcing other extraordinary ones. Many States that have introduced “national security courts” identified similar problems facing their “ordinary criminal courts” in the handling of offences against the State such as terrorism. The case in favor of this type of court rests largely on two premises:  firstly, terrorism presents an exceptionally serious threat to society; secondly, terrorists have proved particularly difficult to apprehend and convict without special offences and additional police powers. In this situation, governments deem ordinary courts inadequate to deal with threats constituting special offences against the State and, consequently, create special jurisdictions to render judgment in offences of this type expeditiously and appropriately. [295] The laws and regulations establishing a specialized court lay down rules specifying the composition of the court and the extent of its powers.

 

3.3.3.1. Specialized Criminal Court

The Government of Saudi Arabia realized that the diversity of the newly defined intellectual and security offences, which threaten the security of society, requires the establishment of specialized courts with the power and ability to understand the different dimensions of these offences so that they can decide on the appropriate penalties which will eventually contribute to deterrence and reform. [296]

 

As previously mentioned, article 9 of the Law of the Judiciary of 2007 permits the Supreme Judicial Council to establish specialized courts subject to approval by the King. The Minister of Justice issued order No. 1422 of January 28, 2009, based on Supreme Judicial Council resolution No. 4/69 of January 6, 2009, establishing a specialized criminal court in the city of Riyadh to try suspects in cases involving terrorism and national security and other related offences. [297] The court’s panels consist of a single judge or three judges as determined by the Supreme Judicial Council. [298] Specialized panels for certain qisas , hudud and ta’zir cases are composed of three judges. [299]

 

In addition, the Minister of Justice issued order No. 5751 of April 5, 2011 establishing a specialized Appellate Criminal Court, which operates through specialized panels. Each panel is composed of three judges, with the exception of the five-judge panel that reviews certain types of cases involving qisas, hudud and ta’zir penalties. The judges of the specialized Appellate Criminal Court must not hold a rank lower than appellate judge and each panel must have a chief justice. [300] All decisions rendered by the specialized Appellate Criminal Court are final except for decisions involving certain types of cases that involve qisas, hudud or ta’zir penalties, which are reviewed by the High Court. In such cases, the High Court exercises its jurisdiction through specialized panels composed of five judges to review these types of sentences. Each panel has a chief justice. [301]

 

Supreme Judicial Council resolution No. 4/69 of January 6, 2009 and article 8 of the Terrorist Offences and Financing of Terrorism Law state that the Specialized Criminal Court has jurisdiction over the terrorist, national security and other offences specified in the Law. [302] According to article 1 (a) of the Terrorist Offences and Financing of Terrorism Law, a terrorist offence is:

 

Any criminal act committed, individually or collectively, directly or indirectly, by a perpetrator with intent to disturb public order, disrupt national State security or stability, endanger national unity, render the Basic Law of Governance or any of its provisions inoperative, undermine the State’s reputation or status, cause damage to State facilities or natural resources or  coerce any of its authorities into pursuing or refraining from a particular course of action; or any threat to carry out, or instigation of, acts conducive to any of the aforementioned objectives . [303]

 

Article 1 (b) defines the criminal offence of financing terrorism as:


Any act involving the collection, provision, receipt, allocation, transport or transfer of funds or proceeds, wholly or partially, for any individual or collective terrorist activity, organized or otherwise, within the Kingdom or abroad, directly or indirectly, from a legitimate or illegitimate source; carrying out any banking, financial or commercial transaction for the benefit of such activity or its component elements; collecting, directly or through an intermediary, funds to be utilized for its benefit; promoting its ideologies; arranging training sites; sheltering its members or providing them with any type of weapons or forged documents; knowingly providing any other means of support and financing; as well as any act that constitutes a crime within the scope of the agreements mentioned in the appendix to the International Convention for the Suppression of the Financing of Terrorism and as defined in the said agreements.
[304]

 

The definition of the criminal offence of terrorism and its financing applies to any person, Saudi or non-Saudi, who commits, aids, attempts, instigates, participates in or conspires to commit – outside the Kingdom – and has not been tried for, an offence provided for in the said Law, if such an offence – as stipulated in article 3 thereof – aims to:

 

1.     Change the Kingdom’s system of government;

2.    Render the Basic Law of Governance or any of its provisions inoperative;

3.    Coerce the State into pursuing or refraining from a particular course of action;

4.    Attack Saudi citizens abroad;

5.    Cause damage to State properties abroad, including embassies or other diplomatic or consular premises;

6.    Carry out a terrorist act on board any means of transport registered in the Kingdom or operating under its flag; or

7.    Undermine the interests of the Kingdom, its economy, its national security or its society. [305]

 

Offences of terrorism and its financing are considered major criminal offences that require the suspect to remain in custody until the conclusion of his/her trial. [306] In addition to these types of offences, the Specialized Criminal Court has jurisdiction over claims for annulment of decisions and claims for compensation in connection with the application of the said Law. [307] Moreover, if multiple interrelated offences were committed, one of which is an offence specified in the Law, the Specialized Criminal Court has jurisdiction to adjudicate in all the offences attributed to the accused unless the cases involving such offences were filed separately prior to their filing with said Court. [308]

 

Investigation proceedings or the filing of criminal cases in respect of offences covered by the Law or relating thereto are not conditional on the submission of a complaint by the victim, his representative or his heirs. A civil claimant can file his case before the Specialized Criminal Court after completion of the investigation relating to public rights. [309] The Specialized Criminal Court may, during a hearing, order a provisional seizure of funds, proceeds or means or the continuation of a seizure pending completion of the trial. The seizure must be executed by the competent monitoring and supervisory authorities without delay. [310] The offences specified in the Law are not subject to any Law of limitations. Incompetent persons accused of offences of terrorism or the financing thereof must be referred to the Specialized Criminal Court so that it can take the necessary action in accordance with the Sharia’h. [311]

 

The Court has been allocated separate premises in which to exercise its jurisdiction to try persons accused of security offences in view of the difficulty of trying them in the same place as persons accused in commercial or labor-related cases. The allocation of these separate premises in the building of the General Court was also necessitated by the special nature of its hearings and the security measures needed to guarantee the safety of the judges, defendants, witnesses and other persons involved, in addition to the positive effect that such measures have in ensuring the smooth conduct of the Court’s proceedings. The Court has been provided with a closed-circuit computer network linked directly to the criminal investigation departments responsible for the prosecution of terrorist cases at the General Court in Riyadh in order to maintain the confidentiality of the defendants’ files. Similar trials are also been conducted in the other main regions of the Kingdom (Jeddah, Makkah, etc.).

 

Criminal procedure and litigation before the Specialized Criminal Court are governed by the Law of Procedure before Shari’ah Courts and the Law of Criminal Procedure of 2013 [312] and other related enactments which, in letter and spirit, are intended to safeguard the rights of defendants and ensure that they obtain a fair trial. It is important to bear in mind that “national security courts” do not operate in isolation from the earlier phases of the criminal process although their exceptional pretrial procedures, which constitute a departure from specific requirements of the State’s criminal justice system, involve both the suspension of few ordinary criminal procedures in cases under the jurisdiction of the “national security courts” and the creation of extraordinary ones.  The Terrorist Offences and Financing of Terrorism Law lays down certain rules which depart from those followed by the ordinary courts. For example, article 114 of the Law of Criminal Procedure of 2013 makes provision for the following detention periods in cases involving ordinary offences:

             

The period of detention shall not exceed five days, unless the investigator sees fit to extend its duration. In such a case, the investigator shall, before the expiration of the period, present the file to the director of the local branch of the Bureau of Investigation and Public Prosecution or his representatives or heads of departments falling within his jurisdiction so that they can issue an order for the release of the accused or an extension of his detention for one or more successive periods, provided that such periods do not exceed, in total, 40 days from the date of arrest. In cases requiring detention for a longer period, the matter shall be referred to the Director of the Bureau of Investigation and Public Prosecution or his authorized representative for the issuance of an order extending the detention for one or more successive periods, none of which shall exceed 30 days and the total of which shall not exceed six months from the date of arrest of the accused. Thereafter, the accused shall be either referred directly to the competent court or released. In exceptional cases requiring detention for a longer period, the court may accept a request for extension of the detention for one or more successive periods, as it deems appropriate, and issue a judicial order specifying the reasons therefor. [313]  

 

However, in terrorist cases, the investigating authority has discretionary power to exceed this maximum period by a further six months before bringing the accused before the court. Article 5 of the Terrorist Offences and Financing of Terrorism Law stipulates that:

 

The investigating authority may detain any person accused of an offence specified herein for a period or successive periods not exceeding six months and may extend such period(s) for a further six months if the investigation so requires. In cases in which the investigation requires longer periods of detention, the matter shall be referred to the Specialized Criminal Court to decide on the extension. [314]

 

In addition, the Law of Criminal Procedure of 2013 recognizes the defendant’s right to attend the court proceedings of his criminal trial. Under article 140 of the Law:

If the accused, having been duly summoned, fails to appear on the day specified in the summons and has not sent a representative where such representation is permissible, the judge shall proceed to hear the plaintiff’s pleadings and evidence and shall enter them in the record of the proceedings. The judge shall not render a judgment except in the presence of the accused. If the accused fails to appear without a valid excuse, the judge may issue an order for his detention.

Under article 141 of the same Law:

 

If an action is initiated against several persons in respect of a single incident, and if any of them fail to appear in spite of being summoned, the judge shall proceed to hear the plaintiff’s pleadings and evidence against all of them and shall enter the same in the record of the proceedings. He shall not render a judgment against the absentees until they appear before the court . [315]

In terrorist cases, however, the Specialized Criminal Court may conduct trials in absentia and may issue a “default” judgment [judgment in absentia ] against a person accused of committing an offence specified in the aforementioned Law if he was duly notified through service of process or through official media. Nevertheless, a bsentia is a recognized and accepted defense strategy. According to article 9 of the Terrorist Offences and Financing of Terrorism Law “the convicted person shall have the right to challenge the judgment.” [316]

 

Moreover, exercise of the suspect’s right to inform a member of his/her family or a person of his/her choosing regarding the detention may be delayed for 90 days in terrorism-related cases and extended for a longer period by the Specialized Criminal Court. Under article 6 of the Law:

 

Without prejudice to the suspect’s right to inform his family of his arrest, the investigating authority may issue an order barring contact with the suspect for a period of up to 90 days if the investigation so warrants. If the investigation requires a longer period, the matter shall be referred to the Specialized Criminal Court for a decision thereon. [317]

 

Furthermore, the Court may seek the assistance of experts and may summon officials from the arresting and investigating authorities to testify. Where necessary, the testimony of experts and witnesses may be heard in the absence of the defendant and his lawyer and in coordination with the public prosecutor. The accused and his lawyer have the right to be informed of the content of the expert report without the expert’s identity being disclosed. Such a measure departs from the normal procedure before ordinary courts under which either party has the right to cross-examine witnesses. [318]

 

The statistics indicate that, from its establishment up to May 3, 2013, the number of cases brought before the Specialized Criminal Court totaled 1,414, of which 1,082 had been adjudicated and 332 were in the process of being heard, and the number of suspects referred to the Court during this period amounted to 4,945, of whom 2,145 had been convicted and 2,800 were awaiting judgment. The Supreme Judicial Council has increased the number of judges in the Court from 10 to 17 in order to speed up the hearing and adjudication of cases.


The Statistics of the Specialized Appellate Criminal Court between 2014–2015 also indicate that the number of affirmed judgments by the Specialized Appellate Criminal Court totaled 1579. The Court also reversed 22 judgments and remanded 754 judgments, and the total number of accused persons is 2496.



Finally, it is worth mentioning that, in establishing the Specialized Criminal Court, the legislature did not depart greatly from the ordinary criminal justice system. The Specialized Criminal Court has a structure and composition similar to those of ordinary criminal courts and relies heavily on both the Law of Procedure before Shari’ah Courts and the Law of Criminal Procedure of 2013. I t implements standards of due process and fair trial required by the aforementioned laws. In addition, with a view to ensuring greater transparency and civil control over the conduct of trials under the jurisdiction of the Specialized Criminal Court, local human rights organizations are permitted to attend the Court’s proceedings. For example, the Kingdom’s Human Rights Commission and National Society for Human Rights have assigned members of their boards to attend these trials in order to verify that the statutory procedures are observed and that the defendants enjoy their rights. [319]

 

3.4. The Current Board of Grievances System

The Royal Decree of 2007 also approved an overhaul of Saudi Arabia’s Board of Grievances system. The pyramidal structure of the new Board’s administrative courts stands parallel to the structure of the ordinary courts. The Law of the Board of Grievances of 2007 states that the Board of Grievances—based in the city of Riyadh—is an independent administrative judicial commission responsible directly to the King. [320] Article 1 of the Law of Procedures before the Board of Grievances of 2013 stipulates that “the Board of Grievances’ courts shall, in the cases filed therewith, apply the rules of the Islamic Shari’ah in accordance with the Qur’an, the Sunnah and laws not conflicting with the present Law, and their proceedings shall comply with the provisions thereof.” [321]

 

The Board of Grievances consists of a President holding ministerial rank, at least one Vice-President, a number of Assistant Vice-Presidents and several judges. [322] Vice-Presidents are appointed by Royal Order from among persons possessing the qualifications required to become chief justice of an appellate court. [323] Alongside the Supreme Judicial Council, the Law of the Board of Grievances of 2007 established an Administrative Judicial Council composed of the President of the Board, the Chief Justice of the High Administrative Court, the senior Vice-President of the Board, and four judges holding the rank of appellate chief justice, all appointed by Royal Order. [324] The Administrative Judicial Council performs several administrative functions similar to those of the Supreme Judicial Council. [325] The Council meets every two months; its meetings are valid if attended by at least five of its members, and decisions of the Council are adopted by majority vote. [326] It has established several committees, including the Jurisdictional Conflict Committee [327] and the Judicial Disciplinary Committee, and a Judicial Inspection Department. [328]

 

In a further measure to develop the Kingdom’s administrative judiciary in conformity with the new Law of the Board of Grievances of 2007, Royal Decree No. M/3, issued on November 25, 2013, promulgated the new Law of Procedures before the Board of Grievances under which the Kingdom’s administrative judiciary has an independent system of litigation procedures. This constituted an unprecedented step at the international level insofar as even countries with a long-established administrative judiciary have not yet promulgated such special administrative litigation procedures. However, the Law of Procedure before Shari’ah Courts still applies to cases filed with Board of Grievances courts unless it conflicts with a particular rule laid down in the Law of Procedures before the Board of Grievances  of 2013 or with the nature of administrative disputes. [329]

 

Under the Law of the Board of Grievances of 2007, the Board has the following hierarchical structure:

 

 

Chart 7: Simple Structure of Current Board of Grievances System

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3.4.1. High Administrative Court

The Law of the Board of Grievances of 2007 established a High Administrative Court consisting of a Chief Justice holding ministerial rank—appointed by Royal Order - and a sufficient number of judges holding the rank of appellate chief justice—appointed by Royal Order on the recommendation of the Administrative Judicial Council. [331] The High Administrative Court exercises its jurisdiction through specialized circuits (as needed) composed of three-judge panels. [332] It has a General Council presided over by the Chief Justice of the High Administrative Court and of which all its judges are members. Its meetings are valid if attended by at least two thirds of its members . The Council’s decisions are adopted by majority vote. [333] If, while reviewing a complaint, any of the High Administrative Court circuits deems it necessary to depart from an interpretation adopted by the same or a different division of the Court, the case is referred to the Chief Justice of the High Administrative Court, who refers it to the Court’s General Council for a decision. [334]

 

The Board of Grievances’ High Administrative Court has jurisdiction to review judgments delivered or upheld by the Administrative Courts of Appeal if the objection to the judgment is based on:

 

(a)    Violation of the provisions of the Shari’ah or of laws not inconsistent therewith or an error in application or interpretation thereof, including violation of a precedent established in a judgment delivered by the High Administrative Court;

(b)   Delivery by an incompetent court;

(c)    Delivery by a court not constituted in accordance with the law;

(d)   An error in the characterization or description of the facts;

(e)    Settlement of a dispute in a manner that contradicts another judgment previously delivered in connection with the litigants;

(f)     Conflict of jurisdiction among the Board’s courts. [335]

 

Article 45 of the Law of Procedures before the Board of Grievances of 2013 states that objections should be filed with the High Administrative Court by means of a memorandum deposited by the objector or his/her representative with the administrative appellate court that rendered judgment pursuant to the procedures for the filing of cases. [336] An objection before the High Administrative Court does not entail suspension of execution of judgment. However, the Court may order a suspension of execution of judgment if so requested in the objection memorandum or if the Court believes that execution would entail effects that would be difficult to remedy. If the Court orders suspension of execution of judgment, it takes this into account when scheduling a hearing for consideration of the objection. [337]  In addition, if the High Administrative Court annuls the objected judgment on grounds of lack of competence, it renders a judgment on the issue of competence and, if necessary, refers the case to the competent court. However, if the Court annuls the judgment on other grounds, it refers the case back to the court that rendered the objected judgment with a request for it to render another judgment without reconsidering the case. In such an event, the court to which the case is referred should follow the judgment rendered by the High Administrative Court. However, if the Court decides to annul the objected judgment again and the subject matter is valid for judgment, it should render its judgment thereon. [338]   Finally, objection should not be made to judgments of the High Administrative Court except by means of a review request against which the judgment would be evidence and would not constitute intervention in the case. [339]

 

3.4.2. Administrative Courts of Appeals

The Law of the Board of Grievances of 2007 makes provision for at least one Administrative Court of Appeal. Each such court functions through specialized circuits consisting of three-judge panels. The Administrative Courts of Appeal hear appealable decisions from the lower Administrative Courts. [340] The Board of Grievances currently has four Administrative Courts of Appeal in Riyadh, Makkah, the Eastern Province and Asir with jurisdiction covering all the Kingdom’s provinces.

 

Appeals are lodged by means of a memorandum filed, by the appellant or his/her representative, with the administrative court that rendered the judgment, in accordance with the procedures for the filing of appeals. [341] It is noteworthy that appellate judgments are rendered solely on the points forming the subject of the appeal. The Administrative Courts of Appeal consider the appeal on the basis of the pleas and evidence presented and whatever was submitted to the administrative court. [342]   Appealing a judgment ending litigation inevitably entails appealing all judgments rendered in the case, while appealing a provisional injunction entails appealing only the judgment rendered thereon. [343] If it annuls a provisional injunction, the Administrative Court of Appeal must refer the case back to the administrative court to take a decision thereon. [344]

 

Review of final judgments rendered by the administrative courts and the administrative appellate courts may be requested in the circumstances specified in the Law of Procedure before Shari’ah Courts. [345]

 

3.4.3. Administrative Courts

The Law of the Board of Grievances of 2007 makes provision for one or more administrative courts. Each court functions through specialized administrative, employment, disciplinary and subsidiary circuits composed of either a single or three-judge panel. [346] The administrative courts have jurisdiction to adjudicate the following:

 

(a)    Cases relating to rights provided for in civil service, military service and retirement legislation applicable to employees of the Government and entities with independent corporate personality or their heirs and other beneficiaries;

(b)   Cases for revocation of final administrative decisions issued by the officials concerned when the appeal is based on grounds of lack of jurisdiction, defect in form or substance, violation of laws or regulations, error in application or interpretation thereof or abuse of power, including disciplinary decisions and decisions issued by quasi-judicial committees and disciplinary boards as well as decisions issued by public benefit associations and the like relating to their activities. An administrative authority’s refusal or failure to take an action required of it in accordance with the laws and regulations is deemed to constitute an administrative decision;

(c)    Tort cases initiated by the persons concerned against an administrative authority’s decisions or actions;

(d)   Cases relating to contracts to which an administrative authority is party;

(e)    Disciplinary cases filed by a competent authority;

(f)     Other administrative disputes;

(g)    Requests for enforcement of foreign judgments and arbitral awards. [347]

 

It is therefore evident that the Board of Grievances is continuing to handle administrative disputes involving government departments. [348] It is important to note that the previous Law of the Board of Grievances, adopted in 1982, empowered the Board to hear and punish offences involving bribery, forgery, exploitation of official influence or abuse of authority in criminal prosecution proceedings, or violations of human rights. However, under the Law of the Board of Grievances of 2007, the Board’s jurisdiction over criminal offences that had been granted by the Law of 1982 was relinquished to the current Ordinary Court System. Furthermore, the Board of Grievances is not empowered to hear requests relating to sovereign acts, objections filed by individuals against judgments or decisions issued by ordinary courts or legal panels within their respective jurisdictions, or any decision taken by the Supreme Judicial Council or the Administrative Judicial Council. [349]

 

However, the Board of Grievances does have jurisdiction over most of the administrative committees’ administrative disputes. It is noteworthy that all the existing commercial and criminal circuits of the Board of Grievances’ first-instance and appellate circuits are being transferred to the current Ordinary Courts System’s first-degree and appellate criminal courts [350] and, until that process has been completed, the Board of Grievances’ first-instance and appellate circuits will continue to hear the following:

 

(a)    All commercial suits in accordance with Council of Ministers order No. 241 of June 26, 1987 and all resolutions relating thereto;

(b)   All criminal suits filed by the competent authority in the Kingdom against defendants accused of committing the offences specified in Royal Order No. M/43 of June 16, 1958, and against defendants accused of committing the offences provided for in specific criminal legislation such as the enactments promulgated to combat forgery, bribery and commercial fraud. [351]

 

The Council of Ministers’ Bureau of Experts has established a committee to review and propose amendments to all laws and regulations affected by the transition. [352]

 

The Board of Grievances currently has 14 administrative courts in the cities of Riyadh, Jeddah, Dammam, Abha, Madinah, Sakaka, Buraidah, Ha’il, Arar, Makkah, Jizan, Najran, Tabuk and Al-Bahah.

 

 

Chart 8: Structure of the Current Judicial System in Saudi Arabia

The Current Judicial System
Press to enlarge


3.5. Bureau of Investigation and Public Prosecution

In 1989, the Saudi Government created the Bureau of Investigation and Public Prosecution . However, the Bureau was not fully established until 1995. Its headquarters is in the city of Riyadh and it has branches throughout the Kingdom. It is composed of a Director, one or more Deputy Directors and a sufficient number of members. [353] Although, under its Law, the Bureau enjoys full independence and is subject only to the provisions of the Islamic Sharia’h and statutory laws, the Minister of the Interior has administrative oversight over the Bureau. [354] It has a Management Committee composed of the Director, the Deputy Directors and five members of the Bureau holding ranks of Head of the Investigation and Prosecution Department "B" and above.  In addition to its powers as stipulated in the Bureau’s Law and the implementing regulations thereof, the Management Committee is authorized to form 3-member panels to review indictments relating to cases involving the death penalty or certain other types of hudud punishments. [355] Article 3 of the Law of the Bureau of Investigation and Public Prosecution, as amended by the Council of Ministers resolution adopted on February 2, 2015, vests the Bureau with the following powers:

 

(a)    Criminal investigation; 

(b)   Taking action with respect to an investigation by filing or dismissing a case; 

(c)    Prosecution before judicial bodies; 

(d)   Appeal of judgments; 

(e)    Supervision of the enforcement of criminal sentences; 

(f)     Monitoring and inspection of prisons, detention centers and any places where criminal sentences are enforced, as well as hearing complaints of prisoners and detainees, ensuring the legality of their imprisonment or detention and the legality of their remaining in prison or in detention centers after the expiration of the prescribed period, taking the requisite action to release those imprisoned or detained without legitimate cause, and applying the provisions of the law against the persons responsible therefor. The Minister of the Interior must be informed of any relevant observations and a report on the conditions of prisoners and detainees must be submitted to him every six months. 

(g)    Any other powers vested in it by law, regulations issued pursuant to the Bureau’s Law, resolutions of the Council of Ministers or Royal Orders. [356]

 

It is worth mentioning that, on December 28, 2014, the Council of Ministers formally approved changes to the responsibilities of the Bureau of Investigation and Public Prosecution, the Control and Investigation Board and the General Auditing Bureau.  The investigation and prosecution powers of the Control and Investigation Board in criminal cases have now been transferred to the Bureau of Investigation and Public Prosecution. Similarly, the financial control powers of the Control and Investigation Board have now been transferred to the General Auditing Bureau. However, the Control and Investigation Board will continue to exercise administrative powers in the investigation and prosecution of financial offences. [357]

 

3.6. Judges’ Qualifications, Job Performance and Training

As the Islamic Shari’ah is the main authority for Saudi courts, a judge is required to have a high level of education, knowledge and understanding of socio-cultural issues and must be equipped with the tools of ijtihad , as well as specific professional skills that will lead to reasonable, fair and impartial judgments. The Law of the Judiciary requires each judicial candidate to hold a degree from one of the Shari’ah colleges in the Kingdom of Saudi Arabia. According to the Saudi ulama , the purpose of such education in Saudi universities is to produce ulama capable of varying degrees of ijtihad . [358] A candidate may hold an equivalent certificate, although he is required to pass a special examination set by the Supreme Judicial Council. [359] To enable judges to attain the highest levels of education, the Kingdom has established a Judicial Academy and an Institute of Public Administration to train judges, enhance their expertise, develop their skills and provide them with the information that they need in order to function effectively. In addition, to ensure a smooth transition from the current to the new judicial system, the Law of the Judiciary requires all criminal, labor and commercial first-degree and appellate court judges in all the Kingdom’s provinces, governorates and districts to undergo at least two months’ training in commercial, labor and criminal procedural laws and other relevant regulations. [360]

 

There are various requirements and qualifications that a person must meet in order to serve as a member of the judiciary. To be appointed as a judge, a candidate:

 

 

Assistant judges are initially appointed on probation for a period of two years [362] and newly appointed judges are assigned to serve on probation with court judges for at least one year in order to become familiar with the court’s procedures. [363] During the period of probation, newly appointed assistant judges benefit from the experience of senior judges and work on simple cases and settlements. Their work is always reviewed by higher-ranking judges and their judgments are examined to ensure that they conform to the rules and procedures of the courts before they are handed down. [364] In addition, during the period of probation, an assistant judge may be dismissed for lack of competence by a decision of the Supreme Judicial Council. [365] Other newly appointed judges may be dismissed during their period of probation for lack of competence by Royal Order on the recommendation of the Supreme Judicial Council. [366]

 

A judge who begins his career at the bottom of the judicial hierarchy usually needs to satisfy additional requirements in order to be promoted to a higher tier of the judiciary. These requirements include:

 

 

These and other requirements are strictly enforced to ensure the presence of qualified judges in each tier of the judiciary. The new ranks of the judiciary are organized according to the following hierarchical structure:

 

 

The current ranking system for members of the judiciary placed the position of President of the High Court at the top of the judicial hierarchy, replacing the Chairman of the Supreme Judicial Council (see Chart 9). [368] These posts are filled in accordance with the provisions of the Law of the Judiciary of 2007. [369]

 

Chart 9: The Current Ranks of the Judiciary in the Saudi Arabian Ordinary Court System

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Judges are normally appointed and promoted by Royal Order based on a decision of the Supreme Judicial Council. The Supreme Judicial Council’s decision must specify the statutory conditions that have been fulfilled in each case. In the case of promotion, the Council usually follows the order of absolute seniority in service. Where two or more judges have served for equal periods of time, the selected candidate is given priority based on his performance reports. Where the performance reports are equivalent, or if there are no performance reports to examine, priority is based on age and seniority. [370]

 

Similarly, the holding of any rank in the Board of Grievances requires the qualifications specified in the Law of the Judiciary for the rank concerned, with slight modification. [371] Ranks in the current Board of Grievances are similar to the judiciary’s ranks and are filled in accordance with the provisions of the Law of the Board of Grievances of 2007. [372] The current ranking system for members of the Board places the Chief Justice of the High Administrative Court at the top of the hierarchy — similar to the position of President of the High Court established by the current Law of the Judiciary (see Chart 10). The Law of the Board of Grievances of 2007 made provision for an Administrative Judicial Council which performs several administrative roles similar to those of the new Supreme Judicial Council. [373]

 

Chart 10: The Current Ranks of the Board of Grievances System

صورة3

In accordance with the 1982 Law of the Judiciary, a Judicial Inspection Department was established at the Ministry of Justice, consisting of a director and a number of members selected from among the judges of the appellate or general courts by decision of the Supreme Judicial Council and appointed for a renewable term of one year. Under the 2007 Law of the Judiciary, the Supreme Judicial Council has a Judicial Disciplinary Committee [374] which inspects the work of judges of appellate and first-degree courts in order to ascertain their level of proficiency and their ability to perform their official duties. All such inspections are conducted by members holding higher rank than the judges whose work is being inspected. [375] Members of the judiciary are inspected at least once and not more than twice a year [376] and their performance is rated as:

 

 

If a judge is rated as below average in three consecutive performance reports, he is relieved of his duties by a Royal Order based of a decision by the Supreme Judicial Council. [378] Judges are allowed to contest the findings of these reports through specific mechanisms and regulations. [379] No member of the judiciary may be promoted unless his work has been subjected to inspection at least twice while he was at the rank from which he is to be promoted, and on the condition that the last two reports preceding the promotion must have rated his performance as, at least, average. [380] The previous Board of Grievances had a Supervisory Committee which exercised oversight of the Board’s members and functioned in a manner similar to a judicial inspectorate. [381] However, under the 2007 Law of the Board of Grievances, the current Administrative Judicial Council comprises a Judicial Inspection Department. [382]

 

Pursuant to the 2007 Law of the Judiciary, judges undergo professional training in “special courts” jurisdiction before they assume their functions and the Ministry of Justice has drawn up detailed plans, in coordination with the Supreme Judicial Council, the Ministry of Finance and the Ministry of Civil Service, for the restructuring of the legal system and the creation of the requisite number of new judicial posts in the courts, as well as the post of Assistant Undersecretary for Court Affairs at the Ministry. More than 3,700 new legal staff have been appointed and a number of training programs have been launched for them. A total of more than 115 new court buildings and notarial offices have also been opened in various parts of the country. [383]

 

There has been a notable increase in the number of judges in the judicial system. In October 2015, the number of judges totaled 1,800, of whom 600 ranked as assistant judge, 100 as appellate chief justice and 400 as appellate judge. These figures are expected to rise even further as many scholars have affirmed that the Kingdom’s judicial system needs at least 3,000 judges. [384]

 

In short, the application of Islamic law in the Saudi Arabian courts requires judges with specialized qualifications in complex jurisprudence. A judge’s knowledge, qualifications and professional experience, confirmed by inspection, ensure respect for his judicial standing and greater confidence in his judicial rulings.

 

3.7. Judicial Independence

The Kingdom realized that an independent judiciary is a fundamental requirement for the protection of rights and freedoms. Such protection cannot be provided without ensuring a fair trial under an independent and impartial court system. The independence of the judiciary is enshrined in article 46 of the Basic Law of Governance which states that “the judiciary shall be an independent authority and, in their administration of justice, judges shall be subject to no authority other than that of the Islamic Shari’ah.” [385] The same principle is embodied in the Law of the Judiciary, which makes provision for several safeguards. For example, article 1 of the Law stipulates that “judges are independent and, in their administration of justice, shall be subject to no authority other than the provisions of the Shari’ah and the laws in force”. [386] Under the same article, “no one may interfere with the judiciary”. [387] Article 5 of the Ordinance concerning the Prosecution of Ministers prohibits any personal interference in judicial matters, which it designates as an offence punishable by a term of three to five years’ imprisonment. [388]

 

The Law of the Board of Grievances likewise recognizes the Board as an independent administrative judiciary [389] and the Board and its judges enjoy the same safeguards as those provided in the Law of the Judiciary. [390] Since an important aspect of judicial independence is the protection of judges from removal from office or transfer, such protection is guaranteed by the Law of the Judiciary in order to protect judges from any act that might compromise their independence. Article 2 stipulates that “judges are not subject to removal from office except in the circumstances specified herein.” [391] Article 3 further stipulates that “judges may be transferred to other positions only with their consent or by reason of promotion in accordance with the provisions hereof”. [392] Accordingly, under the provisions of the Law of the Judiciary, judges are not subject to removal from office except in circumstances specified therein, such as retirement. [393]

 

The accountability of judges is ensured by special procedures which provide the safeguards needed to ensure the protection and independence of judges. Article 4 of the Law of the Judiciary stipulates that “a judge may not be sued except in accordance with the conditions and rules pertaining to the disciplining of judges”. [394] Section V of the Law of the Judiciary is devoted to disciplinary sanctions against judges. [395] To ensure that the executive authority will not interfere in the judicial system, the Law of the Judiciary emphasizes that the Supreme Judicial Council is the only authority empowered to discipline a judge. [396] While the previous Board of Grievances had a Disciplinary Committee which sanctioned misconduct on the part of the Board’s members, [397] the Administrative Judicial Council provided for in the 2007 Law of the Board of Grievances includes a Judicial Inspection Department. [398]

 

It is important to note that the 2007 Law of the Judiciary clearly acknowledges the doctrine of separation of powers. It stresses the authority of judges to reach decisions in a manner independent of outside influence, especially the influence of the Executive Branch. The most significant feature of the Law is its practical application of the principle of judicial independence, as evidenced by its limitation of the Ministry of Justice’s administrative control over the judiciary. In accordance with the Law, the right to oversee all courts and judges was transferred from the Ministry of Justice to the Supreme Judicial Council, [399] which now makes all decisions regarding the promotion, transfer, assignment, replacement and training of judges and monitors the proper discharge of their duties and other issues that were formerly under the supervision of the Ministry of Justice. [400]

 

In addition, under the previous Law, the Minister of Justice was vested with authority to approve decisions of the courts’ higher councils, such as the General Council of the Courts of Appeal. [401] However, the 2007 Law of the Judiciary excluded the Minister of Justice from the decision-making process of similar bodies such as the High Court’s General Council which, under the new Law, renders its decisions by majority vote. All its decisions are final and made without any interference from any member of the Executive Branch. [402] Moreover, the new Law removed a provision in the 1975 Law under which the Minister of Justice was empowered to designate a person to fill an absent member’s seat at meetings of the Supreme Judicial Council. [403]

 

Furthermore, the Supreme Judicial Council is now the sole authority competent to determine the c omposition of the first-degree courts and designate their seats and jurisdictions, [404] which were previously effected by decision of the Minister of Justice on the recommendation of the Supreme Judicial Council. [405] The Council also became the sole authority competent to designate the appellate chief justices and their deputies, as well as the first-degree chief judges and their deputies, [406]   and to decide when the first-degree courts could hold hearings outside their areas of jurisdiction. [407] Special examinations for judgeship candidates holding “Shari’ah degrees” from one of Saudi Arabia’s Shari’ah colleges are now being set by the Supreme Judicial Council instead of the Ministry of Justice. [408] The Supreme Judicial Council now has the authority to specify what is meant by “judicial duties”, mentioned as a requirement in the appointment and promotion process for judges. Such determinations were previously made by the Council of Ministers on the recommendation of the Minister of Justice. [409]

 

The principle of judicial independence from the Executive Branch was further consolidated when the 2007 Law of the Judiciary transferred the judicial inspection function from a committee under the Ministry of Justice to the Supreme Judicial Council. [410] The Law also reassigned the authority to issue judicial inspection regulations and procedures, to institute disciplinary action and to reprimand judges from the Minister of Justice to the Supreme Judicial Council. [411] Finally, it should be noted that, under the 2007 Law of the Judiciary, interaction between the Ministry and the courts is limited to matters involving:

 

 

However, it has been argued that decisions pertaining to the appointment of judges are made, to a large extent, by administrative authorities. For instance, the members of the Supreme Judicial Council and the President of the High Court are appointed by the King. [413] To understand why high-ranking judges are appointed by the King, it is important to realize that, under the Islamic Shari’ah, a Muslim ruler is mainly responsible for the administration of justice and maintenance of the independence and integrity of the judiciary. It is his duty to seek persons highly qualified and well-versed in Islamic law for nomination to the highest courts and councils in the Kingdom. [414] This process is part of the King’s constitutional role, specified in article 55 of the Basic Law of Governance as being “to conduct the policy of the nation in a legitimate manner in accordance with the precepts of Islam; the King oversees the implementation of the Islamic Shari’ah, the system of government, the State’s general policies and the protection and defense of the country.” [415]

 

Hence, it is the type of responsibility and authority assigned by Islamic jurists to the head of an Islamic State which has been exercised by Muslim rulers throughout history. [416] It is also worth mentioning that, although the King appoints judges so that they can put Islamic law into effect, the applied law (Shari’ah) remains independent of the King and outside the State’s domain. In other words, although a Muslim ruler appoints judges, he is not entitled to interfere in the judicial process by altering decisions or redirecting cases. Thus, the principle of separation of powers is maintained between the King and the judiciary. [417]

 

The right to be heard by an independent and impartial court is a basic and absolute right “…that may suffer no exception”. [418] Due to the fundamental nature of the right to a fair trial, it “…requires compliance in appearance as well as fact”. [419] The requirement of independence has been interpreted to mean that “the courts must be independent of both the executive and the parties”. [420] This independence must be institutional and functional. For instance, the European Court of Human Rights stipulated that, for impartiality to exist, two conditions must be satisfied: “(i) The tribunal must be subjectively free of personal prejudice or bias; and (ii) the tribunal must be impartial from an objective point of view” (i.e it must offer sufficient guarantees to exclude any legitimate doubt of partiality). [421]

 

The overall influence of the administrative power should be weighed against other aspects of judicial Laws that provide guarantees of independence and impartiality. “The international instruments and guidelines require that the courts operate in a manner strictly consistent with fair trial requirements.” [422] Limited administrative involvement in the judiciary may be tolerated only as long as sufficient safeguards are in place to guarantee the courts’ and judges’ independence and impartiality. The law in Saudi Arabia recognizes the principle of the independence of the judiciary and judges. Administrative involvement in the judicial nomination process is restricted and based on criteria such as seniority in the ranking of the judiciary.

 

The judicial system is designed to ensure the independence of judges and their adherence to Islamic rules while providing them with adequate safeguards to protect them from arbitrary transfer, dismissal or legal action. Therefore, there is no legitimate reason to fear that a particular judge might lack independence or impartiality due to the limited level of administrative involvement in the Saudi Arabian judicial system.

 

3.8. Sources of Law

All official legal materials in Saudi Arabia are written in Arabic, the country’s official language. Legal materials take many forms but can be classified under three main sources: Islamic Law, Statutory Law, and Royal Orders.

 

The legal system in Saudi Arabia relies on the two main sources of the Islamic Shari’ah: Qur’an and Sunnah. The first source is the Islamic law which is accessed from Islam’s Holy Book, the Qur’an, and the second is the teachings and precedents of the Prophet Muhammad, the Sunnah. In addition, there is a consensus of opinion and Islamic rulings established by the medieval Islamic institutions of learning specialized in interpreting the divine law ( fiqh ). These rulings, based on the interpretation of the Qur’an and Sunnah, are considered to be one of the sources of Islamic law which take on different forms known as ‘the striving of a legitimate scholar to reach a religious verdict’ ( ijtihad ), Islamic rulings addressing issues not present at the time of the Prophet ( fatwa ), consensus of the earliest generations of Muslims ( ijma’ ), rulings based on analogy ( qiyas ), other sources of fiqh such as unrestricted public interest ( al‑maslahah al-mursalah ), and custom ( urf ), which are called usul al-fiqh rules. [423] Broadly speaking, the body of Islamic Law is divided into three main categories:

 

 

To learn the law of Saudi Arabia, one turns first to the “f iqh ”, Islamic Law. In other words, one turns not to State legislation or court precedents but to the opinions, the “ ijtihad ,” of religious-legal scholars from both the past and the present who, by their piety and learning, have become qualified to interpret the scriptural sources and to derive laws therefrom. Most of the Islamic law applied today, according to the recognized Islamic schools of law, can be found in books of “ fiqh ” that were written by Muslim scholars ( ulama ) over a period of nearly fourteen centuries. [425] Judges in Saudi Arabia consult these books (especially those considered to be the primary sources in each Islamic school of law) in order to formulate their rulings. [426] Professor Frank Vogel, who studied the Saudi legal system, states as follows:

 

Except for the Qur’an, all of the … sources of Saudi law, even the collection of the Prophet’s practices, were compiled or written by scholars, the Ulama . The authority of Ulama to produce these texts rests on their status as scholars, and not on any official or formal positions they may hold such as judge or instructor in a scholarly institution…From these sources, then, other Ulama , such as the Mufti and judges of Saudi Arabia, produce fiqh to guide others or to decide disputes. Ordinarily, it does take a scholar to evaluate these sources and create a ruling. A non-scholar is under conscientious obligation to seek the advice of a person more skilled than he or she in interpretation, either obtaining his fatwa or consulting a book in which he has recorded his opinions. [427]

 

The application of Islamic law in Saudi Arabian courts is based mainly on the rules of the Islamic Shari’ah as interpreted by the Hanbali School, the fourth orthodox school of law within Sunni Islam. The existence of one school of Islamic law in the Kingdom, however, did not remove differences in rulings and procedures, leading to further difficulties in obtaining an authoritative legal opinion. The diversity of interpretations continued due to variations in opinions and philosophies amongst the scholars of the Hanabli School of Islamic law.

 

With a view to rectify the inconsistencies, the Judicial Board of Saudi Arabia adopted a resolution in June 1928, confirmed by the King, proclaiming that rulings were to be in accordance with the established decisions found in the school of Islamic law of Imam Ahmed ibn Hanbal because of the simplicity and clarity of its references and books, the consensus of the scholars following this school and the presentation of evidence addressing whichever problems happen to be under consideration. [428]

 

The Judicial Board designated particular publications within the Hanbali School as the official and main sources for the Shari’ah courts within its jurisdiction. Paragraph (c) of the resolution stipulated that judges were to rely on the two late Hanbali authoritative works authored by the famous Hanbali jurist Mansur ibn Yunus al-Bahuti al-Hanbali (1052 AH/1642):

                                                                                                                    

(1) Sharh Muntaha al-Iradat (Explanation of Muntaha al-Iradat Manual); and,

(2) Sharh al-lqna’ (Explanation of Al-lqna’ Manual).

 

In seeking a resolution to a given problem, judges should follow the answer upon which both books agree or which was provided by one of them and not the other. However, in the event of a discrepancy, Sharh al-Muntaha prevails; when neither of the two books are available, or if they do not provide an answer to a given problem, judges revert to an abridgment or summary thereof:

 

(1) Zad al-Mustaqni’ fi Ikhtisar al-Muqni’ (A Summary of Al-Iqna ’) by Sharaf al-Din Abu al-Naja al‑Hajjawi (968 AH/1560); and,

(2) Dalil al-Talib li Nayl al-Matalib , (A Summary of Muntaha al-Iradat ) by Mar’i ibn Yusuf al-Karmi (961 AH/1554).

 

If an answer still cannot be found, other Hanbali law books may be consulted and decisions issued in accordance with the prevailing opinion that they contain. [429]

 

In conformity with this resolution, a Royal Decree issued in 1349 AH (1930) stated that “it shall be sufficient to rule by what is found in the authentic law books of the school of Imam Ahmed ibn Hanbal, which may be applied without a meeting of court members, while a judgment not based on those texts shall require an obligatory meeting”. [430]

 

In addition, there are cases where the teaching of other Sunni schools ought to or may be—depending on the circumstances—followed by the judge hearing such cases. The above-mentioned resolution included an important exception in paragraph (b) under which the courts could follow the opinion of other schools of Islamic law if they determined that it would better to apply such opinion in order to reach a more appropriate ruling which would best serve the public interest. [431]

 

To date, no formal code, legislation, or enactment has been promulgated by the Council of Ministers, the Shura Council or the King to codify criminal law, family law, legacy or inheritance and many aspects of the Islamic law of contracts. It is worth mentioning that there is a controversy over “codification of Islamic law”, which has been strongly opposed by traditionalists who support the application of Islamic Law, as laid down in the Qur’an and the Sunnah and understood by the Prophet’s noble companions, with the help of explanations provided in traditional jurisprudential sources. [432] Although that is beyond the scope of this research paper, from a scholastic standpoint, limitation of the number of jurisprudential sources of the divine law ( fiqh ), which led to confusion and varying opinions when they were applied in court rulings, was an initial step towards codification as well as an important means to standardize the judicial system in Saudi Arabia. [433]

 

In addition to Islamic law, the development of the Saudi Council of Ministers in 1958 into a formal decision-making body with legislative, executive and administrative functions led to a large-scale introduction of modern laws and regulations into the Saudi legal system covering various areas in the fields of both public and private law. Many of these legal codes were influenced by other legal systems, especially the Egyptian and French systems. [434] A clear example of French influence in the area of private law is the Saudi Corporation Law enacted in 1385 AH/1965, which was introduced into the Saudi legal system through “the Egyptian code which was directly patterned on French company law before the amendments of 24 July 1966.” [435] The Saudi Law of Criminal Procedure also contains several provisions that have been borrowed from Egyptian and French law. [436] In the area of public law, several codes have been enacted governing public finance, customs, ports, mines, etc. [437]

 

In general, the adoption of modern statutory provisions is lawful and enforceable as long as they do not contravene divine law. As previously mentioned, modern statutory laws and regulations can be introduced and adopted only through the doctrine of public interest (a l-maslahah al-mursalah ) as a basis for rule making. This right is exercised only where there is no clear text present in Islamic law to regulate a given issue. [438] Article 67 of the Basic Law states that “the regulatory authority shall lay down regulations and proposals to further the interests of the State, or remove what might be prejudicial thereto, in conformity with the Islamic Shari’ah …” [439] Since, under the Islamic Shari’ah, God is sovereign and has the ultimate law-making authority, Saudi Arabia uses the Arabic term “n izam ”, which means “regulation”, in reference to statutory laws that are autonomous, but not fully independent, of Islamic Shari’ah rules. “The Arabic term ‘ qanun’ , which means ‘law’, is not used in Saudi Arabia…because it represents secular or temporal law and is therefore prohibited by the Shari’ah.” [440]

 

Saudi legal materials are composed of Royal Decrees, regulations, executive regulations, schedules, codes, rules, procedures, international treaties and agreements, ministerial resolutions, ministerial decisions, circular memoranda, explanatory memoranda, documents, ministerial decisions and resolutions which have been designated by the Government as the official sources of Saudi Arabian law. As previously mentioned, no statutory laws or regulations, treaties, international agreements or concessions may be enacted, concluded or amended unless they are approved by Royal Decrees after having been studied, usually by both the Council of Ministers and the Shura Council. [441]

 

The King can also enact rules or regulations independently by issuing Royal Orders. The King plays this essential regulatory role in support of Shari’ah rule. [442] Notwithstanding the divine origin of the Islamic Shari’ah, the head of an Islamic State, according to the Islamic jurists, has the authority to enact laws, either directly or by way of interpretation, in order to meet growing social needs, address developmental concerns and protect the public interest. [443] The King used his legislative authority to promulgate the following constitutional instruments between 1992 and 1994:

 

 

Moreover, to provide judges with the most up-to-date working knowledge and to avoid any discrepancy in their judgments, the Law of the Judiciary made provision for a research department, attached to the Ministry of Justice and consisting of a number of specialists holding at least a bachelor’s degree, to abstract, classify and index the principles established by the higher courts, to compile collections of selected judgments, general rules and precedents for publication, and to execute research projects and answer enquiries from judges. [444] The implementing regulations of the 2007 Law of the Judiciary also provided for a Research and Studies Department in the High Court consisting of researchers who prepare studies requested by the specialized circuits of the High Court. [445] So far, the Ministry of Justice has published a third edition of its Code of Judicial Rulings , records of court cases in 2008, which appear to be considered binding precedents for similar cases in the future. It serves a useful purpose in cutting down on the number of sometimes apparently random judgments coming from some of the courts.

 

The 2007 Law of the Board of Grievances led to the establishment of similar departments, consisting of a director, several judges, professionals and researchers. These departments provide opinions, conduct research projects , classify Board judgments, general rules and precedents and prepare them for publication. [446] The implementing regulations of the Law of the Board of Grievances also established a Research and Studies Department in the High Administrative Court consisting of researchers whose role is to prepare studies requested by the High Administrative Court’s specialized circuits. [447] The Board of Grievances has issued a fourth edition of its Code of Rulings and Principles , records of court decisions rendered in 2008 under its mandate.

 

In addition, on December 10, 2014, King Abdullah issued a Royal Order establishing a committee to design a project for the compilation of a Code of Judicial Rulings on legal cases and issues, classified by Islamic jurisprudential category, to meet the needs of the judiciary. [448] The committee, located in the Ministry of Justice, is empowered to request the assistance of experts, researchers on Islamic jurisprudence and members of the judiciary to provide it with research works and studies on Islamic jurisprudence and judicial precedents. The committee is required to adhere to the rules of the Islamic Sharia’h and follow a scientific approach in weighting the opinions of the Islamic schools of law. All the codified material must be supported by evidence from Shari’ah texts and the “ ijtihad ,” of religious-legal scholars. The Royal Order confirmed the committee’s independence and gave it 180 days to accomplish its task. [449] The committee split the work among three subcommittees, consisting of distinguished judges specialized in criminal, personal status and private law, and requested the Royal Court to extend the deadline for completion of its task due to the complex nature of the work. Many scholars view the Royal Decree as a major step towards a definitive codification of laws and penalties in the Islamic Shari’ah and the project is regarded as part of the major overhaul of the country's legal system initiated three years ago by King Abdullah.

 

All Saudi statutory laws and regulations are published in the Official Gazette ( Umm al-Qura ). Private bodies have also published all the primary sources of the Sunni schools of jurisprudence and most of the Saudi statutory laws and regulations in multi-volume sets. [450] A researcher’s first choice should be the printed resources. However, it is noteworthy that the traditional books on Islamic law and jurisprudence are now available in digital format which makes accessible, through digital technology, a significant body of primary sources of Islamic law and its related sciences, including all the primary sources of the Hanbali School of jurisprudence. Many independent online services provide lawyers, judges, scholars, and researchers with the full texts of all the primary sources of the Sunni schools of jurisprudence (see research links below). By virtue of modern search-engine technology, the electronic versions of these primary sources provide an easy tool with which to search for one subject among hundreds of books, thereby enabling interested parties to examine a variety of opinions in one or more Islamic schools of law.

 

In addition, the Saudi National Center for Documents and Archives collects, organizes, preserves and provides access to all the statutory laws and regulations of the Kingdom of Saudi Arabia. The Center’s website provides extensive coverage of the full text of the Arabic versions of Saudi statutory laws and regulations as well as multilateral, regional and international conventions and treaties.

 

Moreover, the Bureau of Experts has updated its Compendium of Saudi Laws, excluding repealed laws and including amendments. It has translated several major Saudi statutory laws and its English online database is an officially authorized government site offering a reliable English translation of Saudi Arabian statutory laws and regulations. All translated Saudi statutory laws are classified under the following categories; links for the full text versions of laws and regulations are provided under each category:

 

1)    Basic Laws

 

§   Basic Law of Governance

§   Law of The Council of Minister

§   Law of the  Shura  Council

§   Succession Commission Law

§   Law of Provinces

 

2)   Media, Culture and Publication Laws

 

§   Basic Law of Broadcasting

§   Law of King Abdul-Aziz Foundation

§   Law of Documents and Archives

§   Law of National Center of Documents and Archives

§   Law of King Fahd National Library

§   Legal Deposit Law

§   Regulatory Rules of Advertisement and Publicity Boards

§   Law of King Abdul-Aziz Public Library

§   Law of Printed Materials and Publication

§   Law of Press Establishments

§   Copyright Law

§   Penal Law on Dissemination and Disclosure of Classified Information and Documents

 

3)   National Security, Civil Status and Criminal Laws

 

§   Law of Saudi Arabian Nationality

§   Penal Law of Money Counterfeit

§   Law of Substituting a Fine for Imprisonment

§   Law of Diplomatic and Special Passports

§   Border Security Law

§   Law of Imprisonment and Detention

§   Civil Defense Law

§   Civil Status Law

§   Penal Law of Impersonating Public Officers

§   Anti-Bribery Law

§   Travel Document Law

§   Law of Private Security Services

§   Law of Combating Narcotics and psychotropic Substances

§   Law of Weapons and Ammunition

§   Law of Explosives and Fireworks

§   Law of Transport of Money, Precious Metals and Negotiable Instruments

§   Traffic Law

§   Statute of the National Committee for Narcotics Control

§   Charter of the GCC Criminal Information Center to Combat Drugs

§   Anti-Money Laundering Law

§   Anti-Forgery Law

 

4)   Commerce, Economy and Investment Laws

 

§   Law of Commercial Agencies

§   Law of Commercial Papers

§   Companies Law

§   Law of Public Investment Fund

§   Law of Saudi Development Fund

§   Law of Chambers of Commerce and Industry

§   Law of Commercial Books

§   Law of Professional Companies

§   Law of Certified Accountants

§   Law of Commercial Register

§   Law of Settlement Against Bankruptcy

§   Statute of the Supreme Economic Council

§   Law of Trade Names

§   Foreign Investment Law

§   Statute of the General Investment Authority

§   Basic Law of the GCC Accounting and Auditing Organization

§   Law of Stores for the Sale of Vehicles with revoked Registration

§   GCC Patent Law

§   Law of Commercial Data

§   Law of Trade Marks

§   Law of the Saudi Council of Engineers

§   Capital Market Law

§   Cooperative Insurance Companies Control Law

§   Law of Commercial Lien

§   Anti-Concealment Law

§   Competition Law

§   Law of Patents, Layout Designs of Integrated Circuits, Plant Varieties, and Industrial Designs

§   Installment Sale Law

§   Bylaws of the GCC Standardization Organization

§   Contractor Classification Law

§   GCC Uniform Law on Anti-Dumping and Countervailing Measures and Safeguards

§   Law of Chemicals Import and Management

§   Statute of Saudi Export Development Commission

§   Anti-Commercial Fraud Law

§   Law of Time-Share Properties 

§   Statute of Saudi Standards, Metrology and Quality Organization

§   Law of Calibration and Measurements

 

5)    Diplomatic Corps , Protocol and Ceremonies Laws

 

§   Law of Military and Civilian Medals

§   Law of the Flag of the Kingdom of Saudi Arabia

§   Law of Saudi Decorations

 

6)   Education and Science Laws

 

§   Law of Literacy and Adult Education in the Kingdom of Saudi Arabia

§   Law of the Institute of Diplomatic Studies

§   Law of King Abdul-Aziz City for Science and Technology

§   Law of the Council of Higher Education and Universities

§   Law of Production and Marketing of Educational Aids

§   Law of the Institute of Public Administration

§   Statute of Technical and Vocational Training Corporation

 

7)    Hajj and Islamic Affairs Laws

 

§   Law of the Supreme Council of Endowments

§   Law of Imams, Muezzins and Mosque Servants

§   Statute for the Treatment of Persons Arriving in the Kingdom on Hajj, Umrah or Other Visas

§   Statute for the Services for Umrah Performers and Visitors of the Prophet's Mosque from Abroad

§   Law of Transporting Pilgrims to the Kingdom and Returning them to their Countries

§   Law of Domestic Pilgrim Services 

§   Law of the Commission for Promotion of Virtue and Prevention of Vice

 

8)   Municipal Services and Urban Planning

 

§   Law of Roads and Buildings

§   Law of National Statistics

§   Census Law

§   Law of the Disposition of Municipal Real Estates

§   Law of Municipalities and Rural Areas

§   Law of the Protection of Public Facilities

§   Law of Real Estate Ownership and Investment by Non-Saudis

§   Law of Ownership of Real Property Units and Plotting thereof

§   Law of Real Property Registration

§   Nuisance Law

§   Law of Eminent Domain and Temporary Taking of Property

§   Law of State Leasing and Vacating of Property

§   Statute of the General Housing Authority

§   Statute of Real Estate Ownership by GCC Citizens within Member States

 

9)   Military Service Laws

 

§   Law of Commissioned Officer Service

§   Military Pension Law

§   Law of Noncommissioned Officer Service

§   Law of Military Academies

§   Law of the Military Service Council

§   Law of Military Insignias

§   Law of Individual Military Uniforms and Equipment

 

10) Civil Service Laws

 

§   Law of Employee Discipline

§   Law of Ministers, Vice Ministers and Grade "Excellent" Employees

§   Civil Pension Law

§   Civil Service Law

§   Civil Service Council Law

§   Law of Benefit Exchange between the Civil and Military Pension Laws and the Social Insurance Law

§   Statute of the Public Pension Agency

§   Uniform Law for Extension of Insurance Coverage to GCC Citizens Working in a Member State Other Than Their Own

 

11) Laws of Agriculture, Water and Biota  

 

§   Law of Allotment of Uncultivated Land

§   Law of the Grain Silos and Flour Mills Organization

§   Law of Saline Water Conversion Corporation

§   Law of Preservation of Water Resources

§   Law of the National Commission for Wildlife Conservation and Development

§   Law of Fishing, Investment and Preservation of Live Aquatic Resources within Territorial Waters of the Kingdom of Saudi Arabia

§   Law of Marine Science Research in Maritime Zones of the Kingdom of Saudi Arabia

§   Law of Wildlife Reserves

§   Game Law

§   Law of Treated Sewage Water and Reuse Thereof

§   Law of Trading in Endangered Species of Wild Fauna and Flora and Products thereof (1754)

§   Environmental Law

§   Livestock Law

§   GCC Veterinary Quarantine Law

§   Forest and Pasture Law

§   GCC Agricultural Quarantine Law

§   GCC Fertilizers and Soil Conditioners Law

§   GCC Pesticides Law

§   Agricultural Development Fund Law

§   Beekeeping Law

§   Statute of the Saudi Organic Farming Association

 

12) Judiciary and Human Rights Laws

 

§   Law of Sharia Judiciary Jurisdiction

§   Law of Trial of Ministers

§   Law of the Bureau of Investigation and Public Prosecution

§   Code of Law Practice

§   Statute of Human Rights Commission

§   Law of the General Commission for Guardianship over Property of Minors and Persons of Similar Status

§   The Law of the Judiciary

§   Law of the Board of Grievances

§   Anti-Trafficking in Persons Law

§   Arbitration Law

§   Enforcement Law

§   Law of Procedure before Sharia Courts

§   Law of Criminal Procedure

 

13) Tourism and Antiquities Laws

 

§   Law of Protection of Heritage Manuscript in the Kingdom of Saudi Arabia

§   Statute of the General Commission for Tourism and Antiquities

 

14) Youth and Sports Laws

 

§   Saudi Arabian Scout Association Law

§   Basic Law of Sports Federations and the Saudi Arabian Olympic Committee

§   Statute of the High Commission for Equestrian Clubs

§   Law of Automobile and Motorcycle Clubs

 

15)   Health Laws

 

§   Law of the Saudi Commission for Health Specialties

§   The Law of Private Laboratories

§   Health Law

§   Law of Private Health Institutions

§   Law of Fertilization, Utero-Fetal and Infertility Treatment Units

§   Law of Pharmaceutical Preparations and Installations

§   Law of Trading in Breastfeeding Substitutes

§   GCC Uniform Law for Medical Waste Management

§   Law of Practicing Healthcare Professions

§   Law of the General Food and Drug Authority

§   Statute of the National Center for Complementary and Alternative Medicine

§   Statute of King Fahd Medical City Fund

§   Basic Law of the Saudi Red Crescent Authority

 

16) Energy, Industry and Mining Laws

 

§   Law of Protection and Promotion of National Industries

§   Law of the Saudi Industrial Development Fund

§   Statute of the Royal Commission for Jubail and Yanbu

§   Law of Precious Metals and Gemstones

§   Statute of the Saudi Geological Survey Commission

§   Statute of the Supreme Council for Petroleum and Minerals Affairs

§   Statute of the Saudi Organization for Industrial Estates and Technology Zones

§   Law of Gas Supply and Pricing

§   Mining Investment Law

§   Electricity Law

§   Uniform GCC Law of Industrial Regulation

§   Statute of the General Survey Commission

§   Statute of Electricity and Co-Generation Regulatory Authority

§   Statute of the Petroleum Studies and Research Center

§   Law of King Abdullah City for Atomic and Renewable Energy

 

17)   Labor and Civil Care Laws

 

§   Regulation of Charitable Societies and Foundations

§   Cooperative Health Insurance Law

§   Statute of Human Resources Development Fund

§   Social Insurance Law

§   Disability Law

§   Rules for Nominating, Selecting and Honoring Voluntary Work Leaders

§   Labor Law

§   Social Security Law

§   Regulations of Social Development Centers

§   Law of Cooperative Associations

§   Statute of the Social Charity Fund

 

18) Finance and Audit Laws

 

§   Law of Zakat Collection

§   Law of Saudi Arabian Monetary Agency

§   Saudi Arabian Monetary Law

§   Banking Control Law

§   Law of the General Audit Bureau

§   Law of Managing Public Funds

§   Law of Port Service Fees and Charges

§   Law of Registration Fee for Ships and Floating Units

§   Uniform GCC Customs Law

§   Income Tax Law

§   Law of Civil Aviation Tariff 

§   Law of Public Warehousing

§   Law of the Saudi Credit and Savings Bank 

§   Government Tenders and Procurement Law

§   Credit Information Law

§   State Revenue Law

§   Statute of the National Anti-Corruption Commission

 

19) Transportation and Communication Laws

 

§   Railway Security Law

§   Law of Saudi Arabian Airlines Public Corporation

§   Law of Seaports, Harbors and Lighthouses

§   Law of Saudi Ports Authority

§   Law of Public Transport on Roads of the Kingdom of Saudi Arabia

§   Postal Law

§   Communications Law

§   Statute of the Saudi Communications Commission

§   Statute of Saudi Post Corporation

§   Statute of the General Authority of Civil Aviation

§   Civil Aviation Law

§   Anti-Cyber Crime Law

§   Electronic Transactions Law

§   Statute of the Railway Authority

§   Law of Railways Public Corporation of the Government of the Kingdom of Saudi Arabia

§   Automobile Union Law

 

All official Saudi Arabian ministerial and agency websites also provide extensive coverage of the full texts of most of the statutory laws and regulations relating to their respective fields of specialization (see Ministries and Agencies links below).

 

Other available law sources include unofficial websites the objective of which is to publish accurate and reliable information on Saudi and Islamic laws in Arabic and English. One of the principal online resources and legal research tools for Saudi laws is the Arab Lawyers Network . This Internet legal service provides lawyers, judges, experts and researchers with an up-to-date encyclopedia of Saudi laws, regulations, related resolutions, directives and decisions in both Arabic and English , in addition to journalistic folders containing daily follow-ups to legal news and issues raised in the Kingdom. Other online services provide extensive coverage of Saudi Arabian publications and legal information, as well as useful resources to access research materials in both Arabic and English (see research links below). However, it is worth noting that, in Saudi courts, the official language is Arabic. Languages other than Arabic may be used, but the Arabic text will always prevail in court.

 

V.   Conclusion

The process of change and development in Saudi Arabia has affected the country both socially and politically. The political reforms of the 1990s indicated that progressive changes were being officially promoted in the Kingdom of Saudi Arabia, which has opened the door to more participatory values in areas such as shared decision-making and checks and balances. The recent leadership transition occurred smoothly, which is viewed as a sign of stability in the Kingdom. The constitutional evolution indicates that the Kingdom will continue to flourish, as it has since the founding of the modern State. It is evident from the characteristics of this progressive evolution that the recent reforms in the Saudi constitutional system will not be the last but, on the contrary, will be followed by other developments as and when the need arises.

 

Particular attention has been drawn to the Saudi legal system, which recognizes the supremacy of divine sovereignty. The Saudi judiciary relies on the principles of Shari’ah jurisprudence and applies statutory laws to cases before it only when they do not conflict with the Islamic Shari’ah. The Board of Grievances represents an example of an Islamic judicial body which has adapted to modern society. The Kingdom made an independent judiciary the basic safeguard for the protection of its citizens’ rights and freedoms. The Law of the Judiciary ensures the full protection of judges against any interference from the executive authority. Appointments are based mainly on the fulfillment of statutory conditions and a decision by the Supreme Judicial Council stating that those conditions have been met. Only candidates who satisfy all the necessary requirements and hold all the specified qualifications can become members of the judiciary. These qualifications and conditions are based on academic knowledge and previous professional experience. The performance of serving judges is inspected and evaluated to ensure the ongoing validity of their qualifications, their fitness for continued judicial service and their willingness to commit the time and energy needed to ensure respect and esteem for their profession.

 

The Saudi legislature has taken a major step forward in modernizing the Saudi judicial system. For the first time in the Kingdom’s history, a High Court has been established in its capital, Riyadh, as the highest judicial authority in the land assuming responsibilities that were previously assigned to the Supreme Judicial Council. It exercises its authority through criminal and other specialized circuits. The Supreme Judicial Council oversees the administrative aspects of the judiciary, including the selection of judges, oversight of judges’ personnel affairs and the establishment of specialized courts, etc. The 2007 Law of the Judiciary established courts of appeal in all 13 provinces, thereby increasing the speed with which disputes are resolved and making the delivery of appellate rulings more efficient by distributing their caseload among specialized labor, commercial, criminal, personal status and civil circuits. Labor, commercial, general, personal status and criminal courts are also being established throughout the Kingdom with full jurisdiction within their areas of specialization.

 

Moreover, the establishment of independent courts of enforcement, or enforcement circuits in general courts, in other cities will be instrumental in expediting the execution of judgments rendered by other courts which, in turn, will help to protect people's rights and avoid delays.

 

The 2007 Law of the Board of Grievances significantly modified the judicial authority exercised by the Board, which became a simple independent administrative judiciary. Its authority to adjudicate commercial disputes and criminal cases has been transferred to the specialized labor, commercial and criminal courts. In addition, the judiciary now has jurisdiction over labor, commercial and criminal cases that had previously been heard by special ministerial committees.

 

Finally, the promulgation of the Law of Procedure before Shari’ah Courts, the Law of Criminal Procedure and the Law of Procedures before the Board of Grievances in 2013 constituted a continuation of the policy that the Kingdom has consistently pursued since its establishment, namely, consolidation of the pillars of right and justice in such a way as to enable every claimant to uphold his rights and obtain legal redress before a completely independent court of law. The current facilitation of litigation procedures is yet another step in the development of the judiciary. However, the restructuring of the Saudi judicial system is moving at a slow pace because of the complexity of the reforms.

 

The Kingdom’s objective is to enable the Saudi judicial system to achieve a higher standard through ongoing reforms begun by the promulgation of the Law of Criminal Procedures and Procedures before Shari’ah Courts Law adopted, respectively, in 2001 to 2002. These changes are viewed as an effective response to the social and economic needs of Saudi society and a major step towards meeting the requirements of a modern and thriving economy and improving the business environment. The legislature will safeguard the independence and impartiality of the Saudi judicial system and ensure the highest possible fair trial standards.

                                                                                                                    

VI.   Research Links

 

1. Law Sources

 

1.1. Official Gazette

 

 

1.2. Law Sources (Official Websites)

 

 

1.3. Law Journals (Official Websites)

 

 

1.4. Islamic Organizations

 

 

1.5. Judicial Authority

 

 

1.6. Legislative Authority

 

 

1.7. Other Sources (Unofficial Websites)

 

 

2. Government Links (Links to the Governmental Bodies’ Websites)

 

2.1. Ministries

 

 

 

2.2. Agencies

 

 

·        King Abdul Aziz City of Science and Technology (Arabic – English)

 

2.3. Human Rights

 

 

2.4. E-Government

 

 

3. Sources of General Information

 

3.1. Newspapers

 

 

3.2. Online Media

 

·        Sabq (Arabic)

·        Ajel (Arabic)

 

3.3. Education (General – Legal)

 

 

3.4. Libraries

 

 

3.5. Saudi Arabian Commercial Banks

 

 

VII. Endnotes



[1] See Kingdom of Saudi Arabia: General Commission for Survey Home Page, http://www.gcs.gov.sa/Home.aspx (last visited May 30, 2015); Kingdom of Saudi Arabia: Central Department of Statistics and information Home Page, http://www.cdsi.gov.sa/english/ (last visited May 30, 2015).

[2] See Ahmed H. Dahlan, Dirasa Fi al-Siyyasah al-Dakhiliyyah Li-Al-Mamlakah al-Arabiyyah al-Sa’udiyyah [A Study in the Internal Politics of the Kingdom of Saudi Arabia] 31 – 33 (1984); Faisal ibn Misha’l al-Su’ud, Islamic Political Development in the Kingdom of Saudi Arabia; Majlis Ash Shura: Concept, Theory and Practice 51 (2002) .

[3] See Faisal Faisal ibn Misha’l al-Su’ud, supra note 2, at 41 & 65; The Shura Council Home Page, Shura in the Kingdom of Saudi Arabia: A Historical Background, Majlis Ash-Shura , http://www.shura.gov.sa/wps/wcm/connect/shuraen/internet/Historical+BG/ (last visited June 3, 2008).

[4] See Soliman A. Solaim, Constitutional and Judicial Organization in Saudi Arabia 3 – 26 (1970) (unpublished Ph.D. dissertation, Johns Hopkins University) (in file with author); Ahmed H. Dahlan , supra note 2, at 121 – 126.

[5] See Soliman A. Solaim, supra note 4, at 29 – 30; Ahmed H. Dahlan, The Saudi Arabian Council of Ministers: its Environment, its Role and its Future, in Politics, Administration and Development in Saudi Arabia 66 - 67 ( Ahmed H. Dahlan ed., 1990).

[6] See Soliman A. Solaim , supra note 4, at 35 – 39.

[7] See id . at 40 – 42; Richard F. Nyrop, Saudi Arabia: A Country Study, United States Government Printing Office 59 (1984).

[8] See Abdul-hakim al-Tahawi, al-Malik Faisal Wa al-Alaqat al-Kharigiyyah al-Sa’udiyyah [King Faisal and the Saudi Foreign Relation] 34 – 54 (2002).

[9] Faisal ibn Misha’l al-Su’ud, supra note 2, at 78.

[10] See Kingdom of Saudi Arabia Ministry of Municipal and Rural Affairs Home Page, http://www.momra.gov.sa/About/About.aspx , (last visited May 30, 2015).

[11] See Ahmed H. Dahlan , supra note 4, at 74; Ahmad al-Dajani, Khalid bin Abdul Aziz 115 – 119 (2002); Ahmad H. Dahlan, supra note 2, at 127 (1984).

[12] See   Ahmad al-Dajani, supra note 11, at 115; HRH Prince Fisal bin Mishal bin Sau’d, Reading in the Basic Law of Governance in Saudi Arabia , (June 20, 2010), Ajel Electronic News Paper , available at, http://www.ajel.sa/local/1124256 .

[13] See The Basic Law of Governance, Royal Order No. A/90, (27/8/1412H, Mar. 1, 1992), O.G. Umm al-Qura No. 3397 (2/9/1412H, Mar. 5, 1992); The Statute of the Regions, Royal Order No. A/91 (27/8/1412H, Mar. 1, 1992), O.G. Umm al-Qura No. 3397 (2/9/1412H, Mar. 5, 1992); The Shura Council Law, Royal Order No. A/91, (27/8/1412H, Mar. 1, 1992), O.G. Umm al-Qura No. 3397 (2/9/1412H, Mar. 5, 1992).

[14] For example, the “Council of Ministers Law” was amended on Aug. 20, 1993 to complete the constitutional development. In addition to its legislative function, the Council formulates the internal, foreign, financial, economic, educational, defense, and public affairs policies.  It also oversees the implementation of these policies. In addition, it has the executive power. It monitors the implementation of statutes, rules, decrees and the national development plan. See The Council of Ministers Law, Royal Order No. A/13, art. 19 (2/3/1414H, Aug. 21, 1993).

[15] See Abdullah F. Ansary, Succession Process in Saudi Arabia: A Brief Overview of the Historical, Religious, Legal and Royal Family Traditions , 7 W.L.B., L. Libr. of Cong . 31 – 37, (July 2005).

[16] See Saudi National Portal Home Page, Elections in the Kingdom of Saudi Arabia, http://www.saudi.gov.sa , (last visited May 30, 2015).

[17] See The Municipal and Rural Law, Royal Order No. A/44, arts. 9 - 10 (Jan. 11, 2-13).

[18] See Ministry of Municipal and Rural Affairs: Election of the Members of the Municipal Councils Home Page, http://www.intekhab.gov.sa , (last visited May 30, 2015).

[19] See Law of Municipal Councils, Royal Decree No. M/61, arts. 17, 66 (July 31, 2014).

[20] See The Shura Council Law , supra note 13, art. 3.

[21] See Royal Order No. A/45, (Jan. 11, 2013).

[22] See The Basic law of Governance , supra note 13, art. 5(a-b).

[23] See Sandra Mackey, The Saudis: Inside the Desert Kingdom 198 (Houghton Mifflin, 1987).

[24] For more discussion see Joseph A. Kechichian, Succession In Saudi Arabia 25 – 26, 72, 203 – 207 (2001); Mahmood al-Khaldi, al-Baiah Fi al-Fikr al-Islami [Allegiance In Islamic Political Thought] 87 (1985).

[25] See The Basic law of Governance , supra note 13, art. 5(b), See also Joseph A. Kechichian , supra note 24, at 72.  

[26] See id. art. 5(b).

[27] See id. art. 5(c).  

[28] See id. art. 5(d).  

[29] See id. art. 5(e).  

[30] See id. art. 6.  

[31] The Law of Pledge of Allegiance Commission, Royal Decree No. A/135 (10/28/1427H, Oct. 19, 2006).

[32] See id.  

[33] For more details, see Turki al-Faisal, Saudi Constitutional Reform, from Abdul Aziz to Abdallah, Address at King Abdul Aziz ibn Saud Annual Lecture, Middle East Center, University of Oxford, (2007).

[34] See Royal Order No. A/135, (Oct. 19, 2006).

[35] The Law of Pledge of Allegiance Commission, supra note 31, art. 7.

[36] See id. art. 11.  

[37] See id. arts. 10 and 12.   

[38] The position of the “Deputy Crown Prince”, however, must not be confused with the position of the “Second Deputy Prime Minister”, which was created by King Abdulaziz in the 1960s when he appointed Prince Sau’d bin Abdul Aziz as the “Crown Prince” and Prince Faisal bin Abdul Aziz al-Saud as the “Second Deputy Prime Minister”. From a constitutional standpoint, only the King has the right to choose the “Deputy Crown Prince” by a Royal Order as the Head of State, and not as a president of the Council of Ministers. The “Second Deputy Prime Minister” is an important and essential position in the system of government in Saudi Arabia as it - from a constitutional standpoint - prevent a constitutional vacuum in the country. It also worth to mention that neither the Basic Law or the Law of Pledge of Allegiance Commission contains any reference to the post of “Second Deputy Prime Minister”, despite the fact that Article 57 of the Basic Law indicated that the King appoints the Vice-Presidents of the Council of Ministers, which means the possibility of having more than one “Deputy Prime Minister”. See The Basic law of Governance , supra note 13, art. 57; Mansour Al-Marzoqi, Analysis: Saudi Arabia's Smooth Transition , Al Jazeera English Home Page, http://www.aljazeera.com/news/middleeast/2015/01/analysis-saudi-arabia-smooth-transition-20151473133872937.html , (last visited May 30, 2015); Dr. Ibrahim Bin Muhammad Al-Hadithi, The Exceptional Decision , Riyadh Newspaper , Issue No. 4889, (Mar. 30, 2009), available at http://www.alriyadh.com/419141 .

[39] See Royal Order No. A/86, (Mar. 27, 2014), See also , Mansour Al-Marzoqi, Analysis: Saudi Arabia's Smooth Transition , supra note 38.

[40] King Salman Bin Abdulaziz First Public Address, in the Saudi capital Riyadh (Jan. 23, 2015).

[41] See King Salman Bin Abdulaziz; See also King Salman makes first major policy speech, The Economist Home Page, Available at http://country.eiu.com/article.aspx?articleid=1332960517&Country=Saudi%20Arabia&topic=Politics_1 , (Mar. 12, 2015); Saudi King Salman unveils policy agenda, Al Arabiya Network, Available at http://english.alarabiya.net/en/News/middle-east/2015/03/10/ , (Mar. 10, 2015).

[42] See id .

[43] See id .

[44] See The Basic Law of Governance, supra note 13, art. 1.

[45] See id . art. 7.

[46] See id . art. 23.

[47] See Fahd ibn Abdulaziz, Speech on the Issuance of the Basic Law of Governance (Mar. 11, 1992); Saud al-Faisal, Saudi Minister of Foreign Affairs, Address at the World Conference on Human Rights Vienna, Austria (June 15, 1993); Aba-Namay, R. (1993). The recent constitutional reforms in Saudi Arabia. The International and Comparative Law Quarterly, 42 (2), 295-331.

[48] See The Basic Law of Governance, supra note 13, art. 5.

[49] See id . art. 8.

[50] See id . art. 9.

[51] See id . art. 26.

[52] See id . art. 16.

[53] See id . arts. 37 & 40.

[54] See id . art. 18.

[55] See id . arts. 36 & 38.

[56] Id . arts. 27 & 31.

[57] See id . art. 28.

[58] See id . art. 44.

[59] See F. Gregory Gause, Oil Monarchies: Domestic and Security Challenges in the Arab Gulf States 106 (1994).

[60] See The Basic Law of Governance, supra note 13, art. 45.

[61] See id . art. 60.

[62] See id . art. 55; The Council of Ministers Law, Royal Order No. A/13, art. 29 (2/3/1414H, Aug. 21, 1993), O.G. Umm al-Qura No. 3468 (10/3/1414H, Aug. 27, 1993).

[63] See The Basic Law of Governance, supra note 13, art. 62.

[64] See id . art. 56.

[65] See id . art. 57.

[66] See The Council of Ministers Law, supra note 62, art. 29.

[67] See id . art. 19.

[68] See id . art. 24.

[69] See id . art. 24(i).

[70] Ayoub M. al-Jarbou, Judicial Review of Administrative Actions: A Comparative Study between the United States and Saudi Arabia 129 - 130 (2002) (unpublished S.J.D. dissertation, University of Virginia) (in file with author).

[71] See The Statute of the Regions, supra note 13, art. 5.

[72] See id . art. 1.

[73] See Ayoub M. al-Jarbou, supra note 70, at 129 -134.

[74] See Royal Decree No. A/69, (Jan. 29, 2015).

[75] See Cabinet of Minister Session on Feb. 9, 2015 , Saudi Press Agency (SPA) , available at http://www.spa.gov.sa/minister_of_concil.php?pg=1&cid=29&dmon=1423494000&lite=

[76] See Royal Decree No. A/69, (Jan. 29, 2015).

[77] See Cabinet of Minister Session on Feb. 9, 2015 , supra note 75.

[78] See id .

[79] See The Basic Law of Governance, supra note 13, arts. 44, & 67 – 70; The Shura Council Law, supra note 13, art. 18; The Council of Ministers Law, supra note 62, art. 22.

[80] See The Basic Law of Governance, supra note 13, arts. 1 & 55.

[81] See. e.g ., ibn Qayyim al-Jawziyah , al- Turuq al-Hukmiyah Fi al-Siyasat al-Shariyah [ Administration within the Limits Assigned to it by the Divine Law ] 13 (1986); Frank E. Vogel. Islamic Law and Legal System: Studies of Saudi Arabia 142 – 143 & 370 – 373 (2000); Sobhi Mahmansani, Falsafat al-Tashri fi al-Islam [The Philosophy of Jurisprudence in Islam] 127 – 130 (Farhat J. Ziadeh trans., by, Beirut; 1952); Muhammad F. al-Nabhan & Kathryne Lydiatt, The Islamic View of the Legislative Role of the State , 557-561 Arab L. Q., 1, No. 5 (Nov., 1986).

[82] See Royal Decree No. 19746 (22/9/1379H, Mar. 20, 1960).

[83] The Basic Law of Governance, supra note 13, art. 67.

[84] See id . art. 44.

[85] See Ayoub M. al-Jarbou, supra note 70, at 137 – 138.

[86] See The Basic Law of Governance, supra note 13, art. 70; The Council of Ministers Law, supra note 62, arts. 7 & 20.

[87] See The Council of Ministers Law, supra note 62, arts. 19 & 20.

[88] See The Basic Law of Governance, supra note 13, art. 70.

[89] See The Shura Council Law, supra note 13, art. 18.

[90] See The Council of Ministers Law, supra note 62, art. 22.

[91] See id . art. 14.

[92] See id . art. 7.

[93] See The Bureau of Experts Official Home Page, https://www.boe.gov.sa/MainDefault.aspx?lang=en , (last visited Jun. 12, 2015).

[94] See The Basic Law of Governance, supra note 13, art. 68; Ayoub M. al-Jarbou, supra note 70, at 120-121.

[95] See The Shura Council Law, supra note 13, art. 13.

[96] See id . art. 3 , amended by Royal Order No. A/26 (2/3/1426/Apr. 11, 2005).

[97] See id . art. 13.

[98] See id . art. 9.

[99] See id . art. 15.

[100] See id . art. 19.

[101] See id . art. 23, amended by the Royal Order No. A/198 (2/10/1424/Nov. 27, 2003).

[102] See id . art. 16.

[103] See id . art. 17, amended by the Royal Order No. A/198 (2/10/1424/Nov. 27, 2003).

[104] See id . art. 1.

[105] See id . art. 67.

[106] See Royal Oder No. 1/137 (8/7/1391H, Aug. 30, 1971); Saudi Arabia: A Country Study (Washington, DC, Library of Congress, Helen C. Metz, ed. 1992); Mordechai Abir, Saudi Arabia: Government, Society, and the Gulf Crisis 9 – 10 (1993).

[107] See The Basic Law of Governance, supra note 13, art. 45.

[108] See Ayoub M. al-Jarbou, supra note 70, at 127 – 128.

[109] See Royal Order No. A/4, (Feb. 14, 2009); Christopher Boucek, Saudi Fatwa Restrictions and the State-Clerical Relationship , Sada Carnegie Endowment for International Peace, Available at http://carnegieendowment.org/2010/10/27/saudi-fatwa-restrictions-and-state-clerical-relationship/ffuv , (Oct. 27, 2010); Sultan Al-Obthani, The Major Features of the New Board of Senior Ulama Formation, Al-Sarq Al-Awsat Newspaper, Issue No. 11037 (Feb. 15, 2009), Available at http://archive.aawsat.com/details.asp?section=4&article=507131&issueno=11037#.VWmgCa25gkQ .

[110] See id ; Royal Order No. 13876, (Aug. 12, 2010).

[111] See id .

[112] See Saudi King Limits Clerics Allowed to Issue Fatwas , Al Arabiya Network, Available at http://www.alarabiya.net/articles/2010/08/12/116450.html , (Aug. 12, 2010)

[113] See Royal Order No. 2/1 (11/2/1355H, May 2, 1936).

[114] See Royal Order No. 3/1/32 (4/1/1357H, Mar. 6, 1938).

[115] See Royal Decree No. 19746 (22/9/1379H, Mar. 20, 1960).

[116] See Royal Decree No A/126 (13/8/1390H, Oct. 14, 1970).

[117] See, e.g ., Abdullah M. al-Zahrani, 1 Ta’rikh al-Qada’ Wa-Al-Qudah Fi al-Ahd al-Sa’udi, 1344H – 1416H [History of Judges and Judicial System in Saudi Arabia] 44 – 72 (1418H, 1997/1998); Frank E. Vogel. supra note 81, at 87 – 93; Ahmed A. al-Ghadyan, The Judiciary in Saudi Arabia , Vol. 13, No. 3 Arab L. Q. 236 (1998).

[118] The Basic Law of Governance, supra note 13, art. 48.

[119] After King Abdulaziz unified the country, he realized that the diversity of schools in Islamic law meant diversity in their rulings and legal procedures, which could contradict each other and hinder unification. As a result, he issued a decree in 1345H (1926) establishing the school under Muslim scholar Imam Ahmed ibn Hanbal as the official school of Islamic law for the courts of the Kingdom. See Abd al-Fattah M. S ayfi, al-Ahkam al-ammah Lil-Nizam al-Jinai fi al-Sharia’h al-Islamiyah Wa-Al-Qanun [The General Rules of the Shari’ah Criminal Justice System] 9 (1997); Fuaad Hamza, Al -Bilad al-Arabia al-Saudiah [Kingdom of Saudi Arabia] 175 (1988).

[120] Charles P. Trumbull, Islamic Arbitration: A New Path for Interpreting Islamic Legal Contracts , 629 – 630 Vand. L. Rev., 59 Issue 2 (Mar. 2006).

[121] Frank E. Vogel , supra note 81, at 141.

[123] Ijtihad is a term of the Islamic law that describes the process of making a legal opinion by independent interpretation of the sources of the Islamic Law, the Qur’an and the Sunnah. Ijtihad has been instituted as intellectual effort to reach answers for new situations. The most direct authority institutionalizing the legitimacy of ijtihad is the most reputed Hadith, narrating the famous conversation between the Prophet and his emissary to Yemen, Mu’adh ibn Jabal. See Ahmad ibn Hanbal, 8 Baqi Musnad al Ansar: Hadith Mu’adh ibn. Jabal 245 (1992); Suliman ibn al-Ashaath ibn Ishaq al-Sahstani, 3 Sunan Abi Daud, Kitab al Aqdiah 303. (1994).

[124] See The Law of the Judiciary, Royal Decree No. M/64, arts. 5 & 26 (14/7/1395H,/Jul. 23, 1975), O.G. Umm al-Qura No. 2592 (29/8/1395H, Sep. 5, 1975); The Basic Law of Governance, supra note 13, arts. 49 & 53.

[125] Many of these Committees were created as a result of the ulama and Shari’ah Courts refusal to enforce “Nizams”. Previously, ulama refused most of the content of these laws and most of the adjudication enforcing due to the fact that they strongly oppose the idea of codifying the Rules of Shari’ah. Instead they apply Shari’ah Rules found in books of “Fiqh” written by medieval ulama. See Frank E. Vogel , supra note 81, at 9 & 177; Ayoub M. al-Jarbou, supra note 70, at 188 ; Ahmed A. al-Ghadyan, supra note 117, at 246 – 247.

[126] See The Law of the Judiciary (1975), supra note 124, art.30.

[127] See id .

[128] See id . art. 6(a), amended by Royal Decree No. M/4 (1/3/1401H, Jan. 7, 1981).

[129] See id . art. 6(b), amended by Royal Decree No. M/76 (14/10/1395H, Sep. 20, 1975).

[130] Id . art. 9(1).

[131] See id . art. 7.

[132] Saudi Ministry of Foreign Affairs, Protection of Human Rights in Criminal Procedure and in the Organization of the Judicial System (1421/2000).

[133] The Law of the Judiciary (1975), supra note 124, art. 8( 2, 3 & 4).

[134] See id. art. 9, amended by Royal Decree No. M/4 (1/3/1401H, Jan. 7, 1981).

[135] See id. art. 10.

[136] See id. art. 12.

[137] See id. art. 13.

[138] See Abdul-Rahman Abdulaziz al-Qasim. al-Nizam A-Qadaii fi al-Islam Wa Tatbeequho fi al-Mamlakah al-Arabiyah al-Saudiyah [ The Judiciary System in Islam and its Practice in the Kingdom of Saudi Arabia ] 645 – 646 (1973).

[139] See The Law of the Judiciary (1975), supra note 124, art. 15.

[140] Id. art. 16.

[142] Id. art. 14.

[143] See id. arts. 17 – 20.

[144] See The Directives Concerning Review of Legal Judgments, Royal Decree No. 24836, arts. 2, 5 & 6 (29/10/1386H, Feb. 10, 1967); The Law of Criminal Procedure, Royal Decree No. M/39, arts. 2 & 194 (Oct. 16, 2001), O.G. Umm al-Qura No. 3867 (Nov. 3, 2001).

[145] Saudi Ministry of Foreign Affairs, supra note 132; Ministry of the Interior, Murshid Li al-Ijraat al-Jinaiyya [The Directory of the Law of Criminal Procedure] , (n.d.), at 232.

[146] Ta’zir is an “equitable punishment not specified in the Qur’an and the Sunnah but left to the judicious discretion of the legitimate authorities.” Muhammad Ata Alsid Sidahmad, The Hudud 432 (1995).

[147] Id .

[148] See Law of Criminal Procedure, Royal Decree No. M/39, art. 197, (28/7/1422 H, Oct. 16, 2001), O.G. Umm al-Qura, No, 3867, (17/9/1422H, Nov. 17, 2001).

[149] See id. art. 199.

[150] Id. art. 200.

[151] See The Law of Procedure Before Shari’ah Courts, Royal Decree No. M/21, arts. 187 – 191 (20/5/1421H, Aug. 19, 2000), O.G. Umm al-Qura No. 3811 (17/6/1421H, Sept. 15, 2000).

[152] See The Law of the Judiciary (1975), supra note 124, art. 24.

[153] See id . art. 25.

[154] Hudud are prohibitions that have a fixed punishment, which clearly have been established by God. See Ibn A’bideen, 3 Rad al-Muhtar Ala al-Dur al-Mukhtar [Primary Source of the Hanafi School of Law] 3 (1252H, 1979).

[155] Diyah is the blood-money for death. See Wahbah al-Zuhaili, 6 al-Fiqh al-Islami Wa Adillatahu [Islamic Law and Its Evidence] 298 (1984). .

[156] The jurisdiction of these courts is defined in Ordinance No. 2514 enacted by the Minister of Justice (30/5/1417H, Oct. 12, 1996), on the basis of Decision No. 216/43 taken by the Higher Council of the Judiciary (20/4/1417H, Sept. 3, 1996). See also The Law of Criminal Procedure (2001), supra note 148, art. 128.

[157] However, if the case is related to real estate, this amount does not apply. See The Law of Procedure before Shari’ah Courts (2000), supra note 151, at art. 31.

[158] See Abdullah M. al-Zahrani , supra note 117, at V1, 1/69 – 1/70.

[159] See id. at V1, 1/74 – 75.

[160] See The Law of the Judiciary (1975), supra note 124, art. 22.

[161] The Law of Criminal Procedure (2001), supra note 148, art. 129.

[162] See id . art. 23, amended by Royal Decree No. M/3 (1/4/1404H, Jan. 5, 1981).

[163] See id .

[164] See id . art. 129.

[165] See Abdullah M. al-Zahrani, supra note 117, at V1, 1/65 – 1/66.

[166] See The Law of the Judiciary (1975), supra note 124, arts. 22 & 24.

[167] See The Law of Criminal Procedure (2001), supra note 148, art. 112.

[168] See The Minister of Interior Order No. 1245 (23/7/1423H, Sep. 30, 2002).

[169] See The Law of Procedure before Shari’ah Courts (2000), supra note 151; The Law of Criminal Procedure (2001), supra note 148.

[170] The Law of the Judiciary, Royal Decree No. M/64, art. 26 (14/7/1395H,/Jul. 23, 1975), O.G. Umm al-Qura No. 2592 (29/8/1395H, Sep. 5, 1975).

[171] Established by Royal Decree No. 19 (18/3/1382H, Feb. 10, 1967).

[172] There are two Courts of Guarantee and Marriages in Saudi Arabia. The First Court of Guarantee and Marriages in the city of Riyadh (The Capital of Saudi Arabia), and the Second Court of Guarantee and Marriages located in the city of Jeddah. See Abdullah M. al-Zahrani, supra note 117, at 1/ 37.

[173] Established in 1974. See id. at 1/76.

[174] O.G. Umm al-Qura (24/10/1344H, June 7, 1926).

[175] See id .

[176] See, e.g ., George N. Sfeir, An Islamic Conseil d’Etat: Saudi Arabia’s Board of Grievance , Vol. 4, No. 2 Arab L. Q. 129 (1989); Ayoub M. al-Jarbou, supra note 70, at 191; George N. Sfeir, The Saudi Approach to Law Reform , Vol. 36, No. 4 Am. J. Comp. L. 744 - 745 (1988).

[177] See, e.g ., Roger Perrot, Institutions Judiciaires 223 234 (1983); Kiren Aziz Chaudhry, The Price of Wealth: Economies and Institutions in the Middle East 86 (1997); Maren Hanson, The Influence of French Law on the Legal Development of Saudi Arabia , Vol. 2, No. 3 Arab L. Q. 286 – 288, 272-291 (1987); George N. Sfeir (1989), supra note 176, at 130.

[178] See The Council of Ministers Law, Royal Order, art. 17 – 24 (12/7/1373H , Mar. 17, 1954). See O.G. Umm al-Qura No. 1508 (21/7/1373H, Mar. 23, 1954).

[179] Royal Decree No. 2/13/8759, arts. 1 & 2 (17/9/1374 H, May 9, 1955 ).

[180] See Anti-Bribery Regulation, Decree 15 &2 16 (1382/1962); The Combat of Commercial Fraud Regulation, Decree 54 (1381/1961); George N. Sfeir, supra note 176, at 129 - 130.

[181] See Royal Order No. 20941 (28/10/1387H, Jan. 28, 1968).

[182] See The Law of the Board of Grievances, Royal Decree No. M/51, art. 1, (17/7/1402H, May 11, 1982). See also Ayoub M. al-Jarbou, supra note 70, at 189 – 205.

[183] See id. art 2.

[184] See, e.g ., Council of Ministers Resolution No. 241 (26/10/1407H, June 23, 1987) Concerning Commercial Disputes Settlement.

[185] Section (I) was added to this Article By a Royal Decree No. M/5 (11/02/1421H, May 15, 2000). See The Law of the Board of Grievances (1982), supra note 145, art. 8 ; Ayoub M. al-Jarbou, supra note 70, at 189 – 205.

[186] See The Law of the Board of Grievances (1982), supra note 182, art. 8(2).

[187] See id. art. 9 .

[188] See id. art. 1.

[189] Id. art. 6.

[190] See Ayoub M. al-Jarbou, supra note 70, at 201.

[191] Circuits jurisdictions are defined through several Decisions adopted by the Board president such as Decision No. 2 (1/7/1403H, Apr. 14, 1983) establishing an administrative circuit and defining its jurisdiction; Decision No. 4 (1/7/1403H, Apr. 14, 1983) establishing a criminal circuits and defining its jurisdiction; Decision No. 11 (23/6/1406H, Mar. 3, 1986) reorganizing all circuits and defining their jurisdiction; Decision No. 17 (19/05/1417H, Oct. 1, 1996) establishing three Appeal Circuits; Decision No. 10 (13/04/1419H, Aug. 5, 1998) that established three Appeal Circuits; and Decision No. 1 (5/01/1420H, Apr. 21, 1999) which established a sixth Appeal Circuits.

[192] See The Law of the Board of Grievances (1982), supra note 182, art. 6; The Procedural Rules before the Board of Grievances, Council of Ministers Resolution No. 190, arts. 18, 35, 40, (16/11/1409H, June, 20, 1989).

[193] See The Procedural Rules before the Board of Grievances (1989), supra note 192, art. 40.

[194] See id.

[195] See ft. 140.

[196] See The Procedural Rules before the Board of Grievances (1989), supra note 192, arts. 14 & 39.

[197] See id. art. 36.

[198] See id. art. 42.

[199] See The Law of the Board of Grievances (1982), supra note 182, arts. 6, 10; The Procedural Rules before the Board of Grievances (1989), supra note 192, arts. 18, 16.

[200] See Ayoub M. al-Jarbou, supra note 70, at 208.

[201] See id.

[202] See The Procedural Rules before the Board of Grievances (1989), supra note 192, arts. 14 & 39.

[203] See id. art. 1.

[204] See id. arts. 2, 3, & 5.

[205] See id. art. 15.

[206] See id. arts. 6 & 30.

[207] See id. art. 30.

[208] See id. arts. 31 & 36.

[209] Established to deal with cases and disputes arising under The Income Tax Law, Royal Decree No. 17/2/28/322 (21/1/1370H, Nov. 1, 1950).

[210] Established to deal with cases and disputes arising under The Traffic Law, Royal Decree No. M/49 (6/11/1391H, Dec. 23, 1971).

[211] Established to deal with cases and disputes arising under The Mining Law, Royal Decree No. M/21 (20/5/1392H, Jul. 1, 1972).

[212] Established by The Council of Minister Decree No. 11 (6/12/1400H, Oct 14, 1980).

[213] Established by The Prime Minister Decision No. 8/729 (10/7/1407H, Mar. 9, 1987).

[214] Established to deal with cases and disputes arising under The Copyright Law, Royal Decree No. 1 (19/5/1410H, Dec. 18, 1989).

[215] See Ayoub M. al-Jarbou, supra note 70, at 156 – 166; Ahmed A. al-Ghadyan, supra note 117, at 246 – 251.

[216] See Saudis to Overhaul Legal System , BBC News (Oct. 5, 2007), http://news.bbc.co.uk/2/hi/middle_east/7029308.stm .

[217] The Basic Law of Governance, supra note 13, art. 49.

[218] King Abdullah Approved the Judiciary and the Board of Grievances Laws , al- Riyadh Newspaper , Issue No. 14344 (Oct. 2, 2007), available at http://www.alriyadh.com/2007/10/02/article284080.html ; Royal Decree Fortifies Independence of Judiciary , Saudi Gazette (Oct. 3, 2007).

[219] See The Implementation Mechanism of the Judiciary Law and the Board of Grievances Law, Royal Decree No. M/78, (19/9/1428H, Oct. 1, 2007), O.G. Umm al-Qura No. 4170 (30/9/1428H, Oct. 12, 2007).

[220] See The New Composition of the Courts of General Jurisdiction, Ministry of Justice Home Page, Available at http://www.moj.gov.sa/ar-sa/Courts/Pages/StructureCourts.aspx , (last visited May 30, 2015).

[221] See , Royal Decrees Issued on Litigation, Saudi Gazette, (Nov. 23, 2013), available at http://www.saudigazette.com.sa/index.cfm?method=home.regcon&contentid=20131123187521

[222] See The Law of the Judiciary, Royal Decree No. M/78, art. 5, (19/9/1428H, Oct. 1, 2007), O.G. Umm al-Qura No. 4170 (30/9/1428H, Oct. 12, 2007).

[223] See id . art. 6.

[224] See id . arts. 27 & 28.

[225] See id . art. 7.

[226] See id . art. 58.

[227] See id . art. 55.

[228] See The Law of the Judiciary (2007), supra note 222, art. 49. art. 19.

[229] See id . art. 10 (1 – 3).

[230] See id . art. 10 (4).

[231] See id . art. 10 (5).

[232] See id . art. 11(1).

[233] See id . art. 11(2).

[234] See Law of Procedure before Sharia’h Courts, Royal Decree No. M/1, art. 55, (22/1/1435 H, Nov. 25, 2013), O.G. Umm al-Qura, (3/2/1435H, Dec. 6, 2013).

[235] See id . art. 200.

[236] See id . art. 40.

[237] See The Law of the Judiciary (2007), supra note 222, art. 49. art. 12

[238] See id . art. 13.

[239] See id . art. 14.

[240] See id . art. 15(1)

[241] See id . art. 16.

[242] See id . art. 15(2).

[243] See , Fast-track Courts Open, Arab News, (Aug. 23, 2014), available at http://www.arabnews.com/news/saudi-arabia/619551 .

[244] See Law of Procedure before Sharia’h Courts, supra note 234, art. 185.

[245] See The Law of the Judiciary (2007), supra note 222, art. 49. art. 17.

[246] See id . art. 200.

[247] Objection to summary and temporary rulings and the rulings to be executed by force shall not entail halting execution thereof, See id . art. 178.

[248] See id . art. 190.

[249] See id . art. 191.

[250] See id . art. 192.

[251] See The Law of the Judiciary (2007), supra note 222, art. 49. art.  18.

[252] See id . art. 19.

[253] See id .

[254] See id . art. 25.

[255] See Law of Procedure before Sharia’h Courts, supra note 234, art. 31.