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
1. The Basic System
II. Authorities of the State
1. The Executive Branch
2. The Legislative (Regulatory) Branch
2.1. Advisory Authorities (The Senior Council of Ulama)
3. The Judicial Branch
3.1. Introduction
3.2. Current Saudi Arabian Courts System
3.2.1. Supreme Judicial Council
3.2.2. Courts of Appeals (Courts of Cassation)
3.2.3. First-Instance Courts
3.2.3.1. Summary Courts
3.2.3.2. General Courts
3.3. The Board of Grievances
3.3.1. Board of Appeal Circuits
3.3.2. Appeal Circuits
3.3.3. First-Instance Circuits
3.4. Administrative Committees
3.5. Judicial System Reforms
3.5.1. The New Role of the Supreme Judicial Council
3.5.2. The New Courts System
3.5.2.1. High Court
3.5.2.2. Courts of Appeals
3.5.2.3. First-Degree Courts
3.6. Board of Grievances Reforms
3.6.1. High Administrative Court
3.6.2. Administrative Courts of Appeals
3.6.3. Administrative Courts
3.7. Judges' Qualifications, Job Performance, and Training
3.8. Judicial Independence
3.9. Sources of Law
III. Conclusion
IV. Research Links
1. Internet Sources
1.1. Official Gazette
1.2. Law Sources (Official Websites)
1.3. Journals
1.4. Islamic Organizations
1.5. Law Sources (Unofficial Websites)
2. Government Links (Links to the governmental bodies' websites)
2.1. Ministries
2.2. Agencies
2.3. E-Government
2.4. Human Rights web sites
2.5. Nonprofit NGOs and Foundations
3. Sources of General Information
3.1. Newspapers
3.2. Education (General - Legal)
3.3. Libraries
4. Other Links (Miscellaneous)
V. Endnotes
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: