A Brief Overview of the Saudi Arabian Legal System

 

By Dr. Abdullah F. Ansary*

 

Dr. Abdullah Ansary received his B.A. in Islamic legal studies in 1990 from King Abdul-Aziz 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. He taught Islamic Studies for several years at King Abdul-Aziz University. 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. Dr. Ansary provides 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 charged with reviewing key issues related to homeland security.

 

Dr. Ansary gave several presentations and speeches on various issues within his practice area, and authored or co-authored several congressional reports, 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 legislations, human rights law, international law, and Islamic law and legal systems. He currently serves as a Senior Fellow at the Homeland Security Policy Institute (HSPI) of George Washington University, and a Senior Research Fellow at the Arabian Peninsula & Gulf Studies Program (APAG) of the University of Virginia.

 

Published July 2008

 

 

Table of Contents

 

I. Saudi Arabia: A General History

 

In 1924, Abdul-Aziz 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. Abdul-Aziz had his eyes on implementing a nation building process which would fit the needs and aspirations of the people while growing alongside their assessment of what would best serve the nation and its citizens.[1] He realized that Islam provided the only way to realize this long-sought future, reflecting its deep significance to the culture and history of the Arabian Peninsula, and the feelings of its inhabitants. National unity was realized because Abdul-Aziz applied the doctrine of Islam to public policy, justice, and all other fields of life. He succeeded not only in unifying the country, but also in proving the credibility of the Islamic solution and demonstrating its validity for his time and all times.

 

Abdul-Aziz focused gradually on transforming 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, Abdul-Aziz took the first steps toward inaugurating a system of governance and implementing the Islamic-based principle of consultation, as presented by the Qur'an (Islam's Holy Book) and authentic Sunnah (Prophet Traditions).[2] In 1924, the "National Council" (al-Majlis al-Ahli), a consultative council introduced by Abdul-Aziz, began to take on powers, except for foreign and military affairs, which were handled by the King. By August, 1925, the "Makkah Consultative Council," having greater powers, was formed. This new council was responsible for overseeing communication, trade, education, the court system, internal security, and municipal affairs. It was also the center of the General Consultative Council, which played a significant role in the creation of the Council of Ministers.

 

In August 1926, Abdul-Aziz approved a comprehensive constitution that was called the Basic Regulation (al-Talimat al-Assasiah) 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, which dealt with core constitutional issues such as the System of Government, the Administration's Responsibility, the Affairs of the Hijazi Kingdom, the Department of Accounts, the Inspectorate General, the Kingdom's Employees, the General Municipal Councils, and the Municipal Administration Committees. Most importantly, the fourth article of this document established several governmental bodies, which included the Consultative Council, Administrative Councils, District Councils, and Village and Tribal Councils.[3]

 

In 1927, the "Commission on Inspection and Reform," a committee which was tasked with reviewing the administrative system, was formed by order of Abdul-Aziz. Recommending courses of action for administrative reform, the commission sent a proposal for a new statute of the Consultative Council that was approved by Abdul-Aziz in July, 1927. This new Consultative Council was in charge of informing the government about any errors in the application of laws and statutes. Furthermore, it was responsible for conducting work in various areas, which included budgets, construction project concessions and licenses, expropriation of public property, employment of foreign nationals, and law and statute legislation.[4]

 

Due to the complexities of modernity, Abdul-Aziz 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 twenty three years. It served like a small council of ministers for the Hijaz, until the creation of the council of Ministers in 1953, which brought all the provinces of the Kingdom under its own jurisdiction.[5] In September 1932, the Kingdom 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, all while allowing for the completion of new structures for the Kingdom.

 

The discovery of oil in the Eastern Province in the 1930s coupled with the increasing complexity of government affairs rendered the old type of administration inadequate.[6] For the advancement of a new 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 Communication (1953). This new state successfully established diplomatic relations based on political representation; it also appointed ambassadors.[7] In addition, a number of centralized departments were founded which eventually paved the way for the establishment of the Council of Ministers.[8]

 

In October 1953, King Abdul-Aziz announced the establishment of the Council of Ministers. Furthering his father's efforts, King Sa'ud ibn Abdul-Aziz (1953-1964) held the first session of the Council of Ministers in March, 1954. At the time of its foundation, the Council of Ministers served as an advisory body to the King. By 1958, Faisal ibn Abdul-Aziz, Crown Prince and Prime Minister, transformed the Council of Ministers into a legislative, executive, and administrative body with decision-making abilities. Most of the constitutional basics in the Kingdom were embedded in the Law of the Council of Ministers. Between 1959 and 1960, Faisal made a serious attempt to introduce modern constitutionalism into the Kingdom; however, this attempt did not go beyond the proposal phase. However, many of the country's government ministries, agencies and welfare administrations were developed during King Fisal's reign (1964-1975); the Ministry of Justice is a case in point, having been established by King Faisal in 1970.[9]

 

During the 1980s, the Council of Ministers regulated policies for the Kingdom while also formulating state policy regarding both domestic and foreign affairs. It also led in the execution of policies related to the national economy, education, social welfare, and most public affairs. Focusing on the needs of the Saudi citizens, Saudi governmental agencies experienced a great deal of expansion during the 1980s. During the reign of King Khalid ibn Abdul-Aziz (1975 - 1982), a committee was formed in order to prepare a new constitution.[10]

 

Through consultation and a constant awareness of the people's needs and aspirations, King Fahad ibn Abdul-Aziz (1982 - 2005) initiated the evolution of Saudi Arabia's constitution. On March 1, 1992, King Fahad announced three fundamental laws, established by Royal Orders, which changed the domestic political environment:

 

• The Basic System of Governance (hereinafter the Basic System);
• The Consultative Council Law; and,
• The Regional Law.[11]

 

The political reforms of the 1990s expanded the domain of Saudi Arabian democratic values to the areas of decision making and checks and balances. Several Royal Orders have been issued amending these constitutional documents, including the Council of Ministers Law, in order to coincide with Saudi Arabia's constitutional evolution-a change examined with greater detail in the following sections. These fundamental laws and their amendments improved participation in government on the part of the citizenry, while recognizing the role played by civil and political rights-and public participation-in government.[12]

 

The legitimacy of the Al-Sa'ud monarchy did not only emerge from its adherence to the constitutional, Islamic-based principle of consultation; it also derived from the relatively smooth transitions in kingship which stemmed from King Abdul-Aziz's truly significant decision to implement the concept of allegiance (Bay'ah) established by the Shari'ah and sanctioned by tradition. The Basic System of 1992 introduced provisions regulating the succession process.[13] On August 1, 2005, then-Crown Prince Abdullah ibn Abdul-Aziz was proclaimed King of the Kingdom of Saudi Arabia, thereby succeeding King Fahd. The recent positive transition of power to King Abdullah from the late King Fahd was an indication that the Kingdom will continue to flourish, as it has since the founding of the modern state.

 

Issuing a Royal Order that formed the "Allegiance Council" in October 2006, King Abdullah further stabilized the country and institutionalized the method by which the Royal Family's succession is determined.[14] This landmark law was a major development in terms of constitutional and legal reform, indicating the scope of the Kingdom's democratization and modernization. The law thus helped to develop Saudi Arabia at the state level while also improving its society.[15] To cope with the needs of the rapidly developing Kingdom, King Abdullah is adopting an extensive reform plan that addresses the key areas of good governance, political reform, women's rights, judicial reform, economic reform and educational reform. This will play an important role in Saudi Arabia's constitutional and administrative evolution.

 

1. The Basic System

 

The Basic System is the most important constitutional document of the three fundamental laws inaugurated in 1992. It specifically states that the Qur'an and the Sunnah of the Prophet Muhammad are the Kingdom's constitution.[16] Article 7 of the Basic System reaffirms Islamic Shari'ah (Islamic Religious Law) as the foundation of the Kingdom, stating that the government draws its authority from the Qur'an and the Sunnah, and that these two sources govern all administrative regulations of the state.[17] It emphasizes that the state's role and objective is to protect the principles of Islam and to enforce its Shari'ah.[18] The document is guided by Islamic law when defining the nature, the objectives, and the responsibilities of the State, as well as in defining the relationship between the ruler and the ruled based on brotherhood, consultation, friendship and cooperation.[19]

          

The Basic System's significance emerges when considering its similarity to the constitutions of other countries in terms of content. It confirms the monarchial system of the land,[20] and reaffirms the following principles of government: justice, consultation, and the equality of citizens under Islamic Shari'ah.[21] It emphasizes the basic features of the Saudi family and the importance of Islamic values, justice, and the unity of the family.[22] In addition, the Basic System's articles on economic principles, rights and duties stress that the State must protect human rights according to the Islamic Shari'ah,[23] guard the Kingdom's sacrosanct public funds,[24] affirm the sanctity of private homes and private communications,[25] and guarantee the protection of private property[26] and individual freedom from arbitrary arrest and punishment, except in cases of legal due process.[27] It obliges the state to provide health care to every citizen, support those "in situations of emergency, sickness and old age,"[28] and enact laws to protect the worker and the employer.[29]

 

II. Authorities of the State

 

The Basic System provides detailed definitions of each state authority, including: the judicial authority, the executive authority and the legislative authority. It also addresses their interrelationships.[30] However, there is no separation between authorities, especially between the legislative and the executive.[31]

 

1. The Executive Branch

 

The executive branch of the Kingdom consists of the King, the Council of Ministers, local governments, ministry subsidiaries, and other public, independent and quasi-independent agencies.

 

The King has ultimate authority over the executive branch, the reference point for all authority;[32] he is also the supreme commander of all military forces.[33] According to Article 55 of the Basic System, the King carries out the policy of the nation in accordance with the provisions of Islam. He oversees the implementation of Islamic Shari'ah, Saudi Arabian statutory laws, regulations and resolutions, along with the nation's system of government and the state's general policies.[34] In times of emergency, the King is granted extraordinary powers which allow him to take urgent measures and implement those regulations deemed necessary to deal with a state crisis.[35] In addition, the King functions similarly to a prime minister,[36] with the power to appoint and relieve ministers.[37] He supervises the Council of Ministers, the ministries and the governmental agencies. He also directs general state policy, provides guidance to various governmental agencies, and assures for the harmony, continuity, and unity of the Council of Ministers.[38]

 

Headed by the Prime Minister (the King), the Council of Ministers is the direct executive authority in the Kingdom. The Council of Ministers has the power to set down the nation's internal, external, financial, economic, educational, and defense policies. It serves the same role regarding the general affairs of the State, all while supervising their implementation. It has final authority over the executive and administrative affairs of all ministries and other government agencies.[39] It also has the authority to monitor the implementation of laws, regulations and resolutions, at once establishing and organizing public institutions while simultaneously following up on the implementation of general development plans.[40]

 

In addition, the Council of Ministers has the power to set up committees which review the conduct of the ministries, other governmental agencies or any specific case which might be brought to its attention.[41] Several Higher Councils and Committees have been established, "to deal with particular issues that fall within the Council of Ministers functions in laying down the policy of the state. The competence of each Council, its members and the nature of its decisions are always defined by its respective and establishing decree."[42] Examples of these Councils and Committees include: the Supreme Council of Higher Education, the Supreme Council of Islamic Affairs, the National Security Council, and the Higher Committee for Administrative reform. The composition and authority of these councils and committees are defined by their establishing decrees.

 

Local governments, branches of ministries and other public agencies in the Kingdom's different 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.[43] The Regional Law declares that the goal in dividing the country into several regions is to improve the level of administrative work and development, maintain security and order, and guarantee the rights and liberties of citizens in the framework of the Islamic Shari'ah.[44] This indicates that the regions enjoy considerable financial and administrative independence. Taken together, this demonstrates a major effort aimed at decentralizing authority in the Kingdom.

 

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

 

• Economic agencies (e.g., the Petroleum and Minerals Administration, Saudi Arabian Airlines, and the Royal Commission for Jubail and Yanbu);
• Educational training and consulting agencies (e.g., the Institute of Public Administration, the Technical Education and Vocational Training, and the Saudi Public Universities);
• Social welfare agencies (e.g., the Pension Services Agency, the Saudi Red Crescent, and the Social Security Administration); and,
• Investment and financial agencies (e.g., the Saudi Arabian Monetary Fund, the Saudi Arabian Agricultural Bank, the Real Estate Development Bank, and the Saudi Fund for Industrial Development).

 

Most of these agencies are under direct supervision of particular ministries or government agencies.[45]

 

2. The Legislative (Regulatory) Branch

 

Islamic Shari'ah, derived from the Qur'an and the Sunnah, forms the basis of Saudi Arabia's legal system. The Basic System used the term "regulatory authority" to refer to the Kingdom's legislative authority, which is entitled to lay down statutory laws and regulations. It also has authority to approve international treaties, agreements, regulations and concessions. In Islamic Shari'ah, only God can legislate; thus, the word "legislation"-which represents secular law-is not used in the Kingdom. The legislative authority is shared by the King, the Council of Ministers, and the Consultative Council (Majlis al-Shura).[46]

 

The Basic System declares that Islamic Shari'ah, divine in origin, is the basis of legislation. In addition to the rules of the Islamic Shari'ah, there are a vast range of statutory laws enacted in criminal, administrative, and commercial areas which correspond to the Kingdom's development. The King occupies an essential legislative role in support of Shari'ah rule.[47] As the enforcer of divine law, the head of the Islamic state is granted broad discretion over matters of public interest-known as the field of Islamic public policy (al-Siyasah al-Shar'iyyah).[48] Public interest (al-Maslahah al-Mursalah) is one of the main areas in which Islamic governments (e.g., 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 System clearly relies on al-Maslahah al-Mursalah as a basis for rulemaking. This right is exercised only where there is no clear text present in Islamic law which could regulate a given issue.[49] The Basic System asserts that, "[t]he regulatory authority lays down regulations and motions to meet the interests of the state or remove what is bad in its affairs, in accordance with the Islamic Shari'ah. This authority exercises its functions in accordance with this law and the laws pertaining to the Council of Ministers and the Consultative Council."[50]

 

The King in Saudi Arabia has a major and independent rulemaking function. The Basic System identifies the King as the ultimate authority over all state authorities, including the legislative authority.[51] He has the authority, as the Head of State and the Head of the Council of Ministers, to repeal, enact, or amend any laws and regulations by Royal Order.[52] In addition, the legislative process, which include the drafting and enactment of international treaties, agreements, regulations and concessions are approved and amended by Royal Decrees after first being reviewed by the Kingdom's legislative bodies (the Council of Ministers and the Shura Council).[53] The King is free to accept and reject proposals from either of the two legislative bodies.

 

The Council of Ministers simultaneously undertakes both executive and legislative functions.[54] It shares the legislative function with the King[55] and the Shura Council.[56] Each minister has the right to propose a draft law or regulation related to the affairs of his ministry.[57] To consider a proposal approved by the Council of Ministers, two-thirds of those members who are in attendance must agree to adopt it. In exceptional cases, meetings of the Council of Ministers may be considered valid if only half of the members are in attendance. In such cases, however, resolutions should not be considered legal without the approval of at least two-thirds of those members who are in attendance.[58] More importantly, the decisions of the Council of Ministers, including those related to the approval of legislative proposals and amendments, are not considered to be final unless the King approves them.[59]

 

Legislative authority is also shared by the Shura Council. In 1992, the Basic System mandated the establishment of a Consultative Council.[60] In its new form, the Shura Council is an institution intended to exercise oversight functions, allow citizens to participate directly in the administration and planning of country policies, monitor the performance of its agencies, and open up the Saudi decision-making process to greater public scrutiny and accountability.[61] According to the Shura Council Law, every four years the King issues a Royal Decree that marks the beginning of a new term for the Shura Council.[62] The Council is composed of a Chairman and one hundred fifty (previously one hundred twenty) members. The King chooses the Shura Council members from among scholars and men of learning.[63] Fifty percent of the Council's membership must be replaced by newly selected members every four years.[64] Members of the Shura Council may not hold any other governmental or private management position unless permitted by the King.[65]

 

The Shura Council provides opinions regarding public policy if asked by the King, acting as the Head of the Council of Ministers. The Council has a wide mandate to comment on state affairs, including: the general plan of economic and social development; international laws, charters, treaties, agreements and concessions; the interpretation of state laws; and annual reports submitted by ministries and other governmental bodies.[66] The Shura Council has specialized committees, staffed by its members, which exercise those powers which are within its jurisdiction.[67] Most importantly, the Shura Council has the jurisdiction to propose a draft of a new law or an amendment of an enacted law and study them within the council. The Council Speaker submits Council resolutions regarding new or amended laws to the King.[68] Unlike the 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 without majority approval from the Council's members.[69]

 

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 views of both the Shura Council and the Cabinet are in agreement, 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 either Council vary, the issue is returned to the Shura Council, which delivers whatever decision it deems appropriate. The new resolution is then sent to the King, who renders the final decision.[70]

 

In the final stages of the enactment of any statutory law, the Council of Ministers considers the resolution issued by the Shura Council and reviews the minutes that have been prepared by the Bureau of Experts at the Council of Ministers, all while taking into account whether any recommendations were issued by the General Committee of the Council of Ministers. If the Council of Ministers accepts the Shura Council proposal, the Council of Ministers will approve the legislation and the Council's General Secretaries will prepare a Royal Decree sanctioning its approval. The Royal Decree will approve the legislation and will call on the president of the Council of Ministries, along with the Ministries under their respective jurisdictions, to implement the decree in question. The Council of Ministers' Presidency Chambers will issue a circular so as to distribute copies of the Decree, after which the legislation will be distributed to the concerned ministries and departments, including the Shura Council.

 

If necessary, the Secretary General of the Council of Ministers (the Council of Ministers' Presidency Chambers) may issue a letter to the concerned Minister so as to set rules for the implementation of whatever regulations were contained within the new statutory law. These rules will be approved for a final time by the Council of Ministers. The statutory law will be published in the Official Gazette (Umm al-Qura) and be implemented on expiration of a specified period (usually by the last article of the legislation) after it has been published. The original and authenticated copy of the enacted legislation will be forwarded to the Information and Studies Center affiliated with the Council of Ministers' Presidency Chamber. The National Center for Documents and Archives, affiliated with the Council of Ministers, will then publish the new legislation in the Official Gazette.

 

It is important to note that in the process of enacting any legislation, the legislative authority must take into consideration the following factors: the legislation must not conflict with the clear text of the Qur'an or valid Sunnah. They are the Kingdom's constitution, and take precedence over all other regulations, including the Basic System.[71] In addition, proposed legislation must comply with the provisions of the Fundamental Laws (e.g. the Basic System). Finally, the legislative authority must lay down regulations and motions which meet the interests of the state and remove whatever might be detrimental to state affairs-all in accordance with Islamic Shari'ah.[72]

 

2.1. Advisory Authorities (The Senior Council of Ulama)

 

The Board of Senior Ulama heads the religious authority in Saudi Arabia. It is an official body comprised of thirty to forty of the Kingdom's most senior scholars, created in 1971 to provide fatwas on issues either submitted to it by the government or otherwise requiring the establishment of general rules.[73] The Basic System recognizes the existence of the Board. It states that, "[t]he source for 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 set forth the hierarchy and jurisdiction of the Board of Senior Ulama and the Department of Religious Research and Fatwa."[74] Although it is not part of the legislative authority, the Board of the Senior Ulama has been a participant in the legislative process responsible for enacting statutory laws. In many cases, its participation has been crucial in gaining public support for said statutory laws.[75] Similar bodies, though with a more academic composition and function, exist on the regional level. These include the Islamic Fiqh Academy at the Muslim World League, sponsored by Saudi Arabia and located in Makkah, and the International Islamic Fiqh Academy Organization of the Islamic Conference, which has its seat in Jeddah.

 

3. The Judicial Branch

 

3.1. Introduction

 

The current Saudi court system is composed of a Supreme Judicial Council, Courts of Appeals, and First-Instance Courts (General Courts and Summary Courts). Saudi Arabia also has an administrative judicial body known as the Board of Grievances which stands alongside the Courts System and is affiliated directly with the King. The board judicial function is carried out through Board of Appeal Circuits, Circuits of Appeals, and First-Instance Circuits. Each of these judicial bodies has jurisdiction over cases brought before it in accordance with the law. In addition, the Saudi legal system has several administrative committees that adjudicate civil, commercial, administrative and criminal cases. The judicial jurisdiction of each committee is always determined by the decree which constituted it.

 

On October 1, 2007, King Abdullah issued Royal Decrees approving an overhaul of Saudi Arabia's judicial system. The new Law of the Judiciary establishes a High Court which will take over the functions of the Supreme Judiciary Council as the highest judicial authority in the Kingdom. The new regulation will abolish the existing Courts of Appeals and will establish new Courts of Appeals in the Kingdom's provinces which will exercise their jurisdiction through Labor, Commercial, Criminal Circuits, Personal Status, and Civil Circuits. Moreover, First-Degree Courts will be established in areas, regions and centers, according to the needs of the system, and will exercise their jurisdiction through specialized Criminal, Commercial, Labor, Personal Status, and General Courts. Some of these courts will oversee disputes that had previously been addressed by special administrative committees.

 

The new Board of Grievances Law organizes the Board in the following order: seniority is held by the High Administrative Court, followed by the Administrative Courts of Appeals and, lastly, the Administrative Courts. The High Administrative Court will be established to look into cases objecting to the rules issued by Administrative Appeal Courts. There will be Administrative Courts to look into cases related to the rights of employees, administrative decisions, compensations, contracts, disciplinary actions and requests for the implementation of foreign rules. King Abdullah also approved a functional approach to both new laws which seeks to ensure a successful transition between the old and new systems.

 

This section conducts a brief overview of the current and new Saudi Judicial System, and explores the qualifications, job performance, and training of judges along with those safeguards which are provided to judges to ensure their independence and impartiality.

 

3.2. Current Saudi Arabian Courts 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, Medina, and Jeddah. Since that order, several Royal Orders have been issued which sought to regulate different aspects of the Shari'ah Courts. A Royal Order issued in 1931 included provisions regulating procedure before courts.[76] In 1938, the Shari'ah Judicial Responsibility Law was enacted. This law included 282 articles detailing the regulation of Shari'ah Courts, their types, their jurisdiction, and Shari'ah judges.[77] Later, between 1956 and 1960, the jurisdiction of the court system extended to the entire country, unifying the national judicial system. More specifically, in 1957, King Sa'ud implemented a judicial organization throughout the realm to parallel that found in Makkah, Medina, and Jeddah. In 1960, he unified the two systems under the Presidency of the Judiciary in Riyadh, which extended those regulations developed for a few cities to the entire country.[78] This unification was part of the nationwide administrative unification that King Abdul-Aziz 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 assume the administration of the country's courts.[79] 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, at the same time, compromising its religious and cultural values.[80]

 

Currently, Saudi Arabia has a dual judicial system comprised of the Shari'ah Courts System (al-Mahakim al-Shariy'ah) and an independent administrative judiciary known as the Board of Grievances (Diwan al-Mazalem). In addition to the previous judicial bodies, there are several Administrative Committees that have jurisdiction to hear certain specified cases. Moreover, the Law of the Judiciary permits the establishment of specialized courts by, "Royal Order on the recommendation of the Supreme Judicial Council."[81] There are two specialized courts within the Shari'ah Courts System: the Courts of Guarantee and Marriages,[82] which exercise jurisdiction over civil suits regarding marriage, divorce, as well as child custody,[83] and the Juvenile Court, which hears Juvenile delinquency cases.[84] The competence of the Saudi Judicial Courts System as such was set up 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, Shari'ah Courts have jurisdiction over all disputes and crimes except those exempted from their jurisdiction by law.[85] Shari'ah Courts hear cases related to personal status, family affairs, civil disputes and most criminal cases. However, different laws and regulations have granted jurisdiction over different claims and crimes to either the Board of Grievances or to Administrative Committees.[86]

 

The Basic Law of Governance obliges courts to, ".apply the rules of the Islamic Shari'ah in the cases that are brought before them, in accordance with what is indicated in the Qur'an and the Sunnah, and statutes decreed by the Ruler which do not contradict the Book or the Sunnah."[87] The application of Islamic law in the Saudi Arabia Courts is mainly based on the rules of Islamic Shari'ah in accordance with the interpretation of the Hanbali School-the fourth orthodox school of law within Sunni Islam.[88] Generally, Saudi judges adhere to the Hanbali School of law; however, 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.[89] A Saudi judge is "guided . . . not only by fiqh doctrine, but . . . by his own understanding of the texts from the Qur'an and Sunna[h] that support these rules; he believes his judgment comes directly from these texts, not from the Hanbali books."[90] 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."[91] The judicial decisions of Saudi judges are valid law and cannot be overruled unless they contravene with a plain meaning of the Qur'an or Sunnah, or if they abandon interpretations or principles applied by higher courts. Saudi judges apply "ijtihad"[92] to reach decisions concerning cases that fall outside of the provisions provided by the Shari'ah. In these cases, they apply Islamic jurisprudential tools (e.g., analogy) to the sacred sources. In addition to the rules of the Islamic Shari'ah, there are a vast range of statutory laws that have been enacted in criminal, administrative, and commercial areas corresponding to the Kingdom's development.

 

The 1975 Law of the Judiciary organizes the Courts System in the following hierarchical structure, provided below in descending order:

 

·         Supreme Judicial Council;

·         Courts of Appeals; and,

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

 

Each of these courts has jurisdiction over cases brought before it in accordance with the law (see Chart 1).[93]

 

3.2.1. Supreme Judicial Council

 

Article 5 of the Law of the Judiciary, adopted in 1975, identifies the Supreme Judicial Council as the highest authority in the current Judicial System.[94] The Supreme Judicial Council is composed of eleven members. Five full-time members hold the rank of Chief of the Appellate Court and constitute the Permanent Panel of the Council.[95] Five part-time members include the Chief of the Appellate Court or his deputy, the Deputy Minister of Justice, and the three members with the longest time in service as Chief Judges of the General Courts in the following cities: Makkah, Medina, Riyadh, Jeddah, Dammam and Jazan. All members constitute the General Panel of the Council, which is overseen by its Chairman.[96] The Supreme Judicial Council, ".convene[s] as a Permanent Panel composed of its full-time members, presided over by its Chief or by a designee from amongst the senior most member in the judiciary."[97]

 

Under the 1975 Law of the Judiciary, the Supreme Judicial Council carries out several administrative, legislative, consultative, and judicial functions. Serving its administrative function-defined by Article 7 of the Law of the Judiciary-the Council enjoys a supervisory role over the Judicial Courts System, all within the limits set forth by the law.[98] It primarily, ".supervises the courts, administers the employment-related affairs of all members of the judiciary within the limits laid down in the [law], such as appointment, promotion, transfer, assignment and secondment, monitors the proper discharge of their duties and assigns members of the Inspection Division to inspect, discipline and terminate the services of judges."[99]

 

In its judicial function, the Council reviews judgments involving death sentences and certain other, major crimes. In its legislative function, the Council's role is crucial in establishing general principles and judicial precedents that lower courts are bound to follow; the Council also looks into Shari'ah questions that require a statement of general Shari'ah principles, referred by the Minister of Justice. In its consultative function, the Council reviews and provides opinions in matters referred to it by the King or by the Minister of Justice.[100] Meetings of the