In order to ensure justice, security and stability, States need to establish a judiciary which, by virtue of its structure and the safeguards provided for, is capable of discharging its mission of promoting justice, protecting human rights and freedoms and ensuring the rule of law in the optimum manner. The structure of the judiciary is the foundation on which justice is based in society.
Accordingly, the Kingdom of Saudi Arabia has shown great concern for the judicial authority. It has established various types and levels of courts and has promulgated regulations which specify the functions, jurisdiction, composition and working procedures of these courts. This concern is embodied in the Basic System of Government, which stipulates as follows: "The State authorities shall consist of the judicial authority, the executive authority and the legislative authority" (art. 44); "The judiciary shall be an independent authority and, in their administration of justice, 'udges shall be subject to no authority other than that of the Islamic Shariah" (art. 46); "The right to seek legal remedy shall be guaranteed, on an equal footing, to all citizens and residents of the Kingdom" (art. 47).
It also stipulates that the courts are competent to adjudicate in all disputes and offences except those that are excluded, by law, from their jurisdiction (art. 49).
It should be noted, at the outset, that the courts in the Kingdom of Saudi Arabia have general jurisdiction to adjudicate in all disputes and offences, this jurisdiction not being shared by any special, exceptional or military courts. The structure of the Kingdom's judiciary is regulated by the basic provisions of the following legislative instruments:
a) The Statutes of the Judiciary, promulgated in Decree No. W164 of 14/7/1395 H, corresponding to AD July 23, 1975.
b) The Statutes of the Board of Grievances, promulgated in Decree No. M/51 of 17/7/1402 H, corresponding to AD May 10, 1982.
c) The Administrative Rules of Procedure of Judicial Bodies, promulgated in Ordinance No. 109 of 24/1/1332 H, corresponding to AD October 13, 1952.
d) Ordinance No. 109 of 24/1/1332 H, corresponding to AD October 13, 1952, concerning the establishment of Islamic judicial responsibilities.
The Kingdom has adopted a two-track judicial system, which, in addition to the various types of ordinary court, also comprises an administrative judicial body, as described below:
(2) Composition and jurisdiction of the ordinary courts
Article 5 of the Statutes of the Judiciary stipulates that the Shariah courts shall consist of:
(a) The Higher Council of the Judiciary.
(b) The Court of Cassation.
(c) The general courts.
(d) The courts of summary jurisdiction.
Each of these is competent to hear matters brought before it in accordance with the Statutes.
(a) The Higher Council of the Judiciary.
Composition:
Article 6 of the Statutes of the Judiciary stipulates that the Higher Council of the Judiciary shall consist of eleven members as follows:
(i) Five full-time members, holding a rank equivalent to that of President of the Court of Cassation, who are appointed by Royal Decree. These constitute the Standing Committee of the Council from whom its President is appointed by Royal Decree.
(ii) Five part-time members, consisting of the President of the Court of Cassation or his deputy, the Deputy Minister of Justice and three of the most senior presidents of the general courts. These, together with the above-mentioned members, constitute a plenary session, which is chaired by the President of the Higher Council of the Judiciary [the eleventh member].
Jurisdiction:
In accordance with the Statutes of the Judiciary, the Higher Council of the Judiciary is vested with various administrative and judicial powers. It supervises the courts, administers the employment-related affairs of all members of the judiciary within the limits laid down in the Statutes, 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. It also assumes the following functions:
(b) The Court of Cassation
Composition:
The Court of Cassation consists of a President and an adequate number of judges from whom Vice-Presidents are appointed, as needed, on a basis of absolute seniority. It has a and a division to division to hear criminal offences, a division to hear matters of personal status, hear other matters. These divisions, the number of which can be increased if necessary, are headed by the President or one of his Vice-Presidents (art. 10 of the Statutes of the Judiciary).
The Vice-Presidents of the Court of Cassation are appointed by the Minister of Justice on the basis of a proposal by the Higher Council of the Judiciary (art. 11 of the Statutes of the Judiciary). Decisions of the Court of Cassation are handed down by three judges except in cases involving offences punishable by death or amputation, in which decisions are handed down by five judges (art. 13 of the Statutes of the Judiciary) in order to provide a greater safeguard for the persons accused in such cases.
Jurisdiction:
The Court of Cassation constitutes the second level of legal proceedings in the Saudi Arabian Judicial system. It endeavors to standardize judicial principles by monitoring the manner in which legal rules and the provisions of regulations are interpreted and applied by the general courts and the courts of summary jurisdiction in the Kingdom. However, the principal function of this Court is to review judgements handed down by the lower courts. It is also competent to hear objections against judgements handed down by lower courts, which can be lodged either by the convicted person or by the public prosecutor. Objections by convicted persons must be lodged within 15 days, not counting official holidays, from the date of their receipt of a copy of the judgement (arts. 2, 5 and 6 of the Directives Concerning Review of Legal Judgements).
On receiving the file, this Court considers the case from the standpoint of the application of the legal rules, the facts of the case and the penalty imposed by the general court or the court of summary jurisdiction. If it has no observations to make, it ratifies the judgement and returns it to the court. If it feels that observations are warranted, it transmits them to the court that handed down the judgement. If the judge agrees with the observations, he annuls the judgement himself and rehears the case. If he does not agree therewith, he must express his differing point of view to the Court of Cassation, which, if it is satisfied therewith, ratifies the judgement. If it is not satisfied, it sets aside the judgement in a substantiated decision, and the matter is referred to another judge for adjudication (art.s 14 and 17 of the Directives Concerning Review of Legal Judgements). Decisions of the Court of Cassation ratifying or setting aside judgements, regardless of whether they are taken unanimously or by a majority, are regarded as final (art. 21 of the Directives Concerning Review of Legal Judgements).
Article 23 of the Directives Concerning Review of Legal Judgements stipulates that: "If the presiding or any of the other judges or any person whose testimony is not admissible has handed down a judgement which is under review, he shall not participate in its review and shall not attend the hearings".
Article 63 of the Regulatory Schedule appended to the Statutes of the Public Investigation and Prosecution Department stipulates-that the public prosecutor may lodge an objection to a judgement for the following reasons:
1. If the judgement forming the subject of the objection explicitly or implicitly conflicts with a provision of the Holy Qur'an, the Sunnah or the legal consensus.
2. If it violates the regulations due to:-
(i) Erroneous application or interpretation of the law.
(ii) Non-compliance with the fundamental rules of trial procedure.
3. If there is a fundamental defect in the judgement or its substantiating grounds, such as:
(i) Incorrect categorization of the criminal acts.
(ii) Failure to specify the grounds on which the judgement was based.
(iii) Failure to specify the acts and intentions constituting the offence.
(iv) Obscurity or ambiguity of the substantiating grounds in regard to the circumstances or constituent elements of the offence.
(v) Inconsistency between the judgement and the facts established by the judge during the trial proceedings.
(vi) Inconsistency or incompatibility, in the substantiating grounds, between the facts of the case and the text of the judgement or between the premises and the conclusions.
(vii) Failure to rule on any of the prosecution's principal motions.
(viii) Acquittal of the defendant in spite of acknowledgement of the fact that he made a confession in due and proper form.
(xi) Failure to convict the defendant even though the legal provision was applicable to the established facts.
(x) Misinterpretation of a fact or erroneous categorization of an offence.
The regulations and directives specify the following circumstances in which a judgement must be reviewed, even if no objection thereto is lodged by the convicted person or the public prosecutor:
However, in order to save the parties and the court from wasting time on lengthy proceedings in trivial cases, the Directives Concerning Review of Legal Judgements stipulate that judgements shall be final and not subject to review in the following cases:
Plenary sessions of the Court of Cassation
Insofar as the Court of Cassation consists of a number of divisions which might have conflicting views on a particular subject, and since the function of the Court is to monitor the extent to which the principles deduced by the general courts and the courts of summary jurisdiction are consistent with the rules of the Shariah, there is a need for a body capable of reconciling these differences and standardizing the principles applied by the courts. Accordingly, article 14 of the Statutes of the Judiciary assigns this task to a plenary session of the Court of Cassation, consisting of all the judges serving therein, which takes a decision on such matters by a majority of not less than two-thirds of its members, failing which the matter is referred to the Higher Council of the Judiciary for a decision.
(c) The General Courts
Composition:
In accordance with article 22 of the Statutes of the Judiciary, the composition, location and competence of the General Courts are determined by the Minister of Justice on the basis of a proposal by the Higher Councilof the Judiciary. The judgements of these courts are normally handed down by a single judge except in cases involving offences punishable by death or amputation and other cases specified in the Statutes, in which they are handed down by three judges (art. 23).
Jurisdiction:
These courts have general jurisdiction and, therefore, are competent to hear all disputes and offences which fall outside the sphere of competence of the courts of summary jurisdiction.
(d) The Courts of Summary Jurisdiction
Composition:
The composition, location and competence of the courts of summary jurisdiction, in which one or more judges sit, are determined by the Minister of Justice on the basis of a proposal by the Higher Council of the Judiciary (art. 24). The judgements of these courts are handed down by a single judge (art. 25).
Jurisdiction:
The jurisdiction of these courts, as defined in Ordinance No. 2514 promulgated by the Minister of Justice on 30/5/1417 H, corresponding to AD October 12, 1996, on the basis of Decision No. 216/43 taken by the Higher Council of the Judiciary on 20/4/1417 H, corresponding to AD September 3, 1996, covers the following:
(a) Offences involving misdemeanors, discretionary and hadd offences punishable by flogging, and felonies punishable by fines of not more than one-third of the blood money.
(b) All financial claims not exceeding 20,000 riyals, with the exception of cases involving matrimonial disputes, maintenance and landed property.
One of the judges of these courts is assigned, for a specified period of time, to hear juvenile cases at the social surveillance center and the welfare institution, in which male and female delinquents are detained, in a manner that shows due regard for the particularities of the procedures for the trial of juveniles.
(3) Composition and jurisdiction of the administrative judiciary (the Board of Grievances)
In former times, the Islamic State had a judicial institution responsible for the hearing of grievances, which developed gradually, side by side with the ordinary judiciary, as a specialized type of judiciary competent to hear disputes between individuals and their rulers, which are currently referred to as disputes to which the State is a party. The Kingdom revived this concept by establishing the Board of Grievances in 1954 and subsequently regulated its functions in such a way as to combine time-honored and contemporary concepts by stipulating, in article 1 of the Statutes of the Board, that the Board of Grievances shall be an independent administrative judicial body.
Composition:
Article 2 of the Statutes of the Board of Grievances stipulates that the Board shall consist of a President holding the rank of Minister, one or more Vice-Presidents and a number of Assistant Vice-Presidents and members specialized in the Shariah and the regulations. In accordance with article 6 of the same Statutes, the Board exercises its functions through the following divisions:
Article 39 of the Rules of Procedure of the Board of Grievances stipulates that a Review Panel shall be established to hear appeals against judgements handed down by the Board's divisions.
Jurisdiction:
In accordance with article 8, paragraph 1, of its Statutes, the Board is competent to adjudicate in the following matters:
a) Cases involving the entitlements, as provided for in the Civil Service and Pension Regulations, of civil servants, Government employees and the staff of independent public institutions vested with corporate personality, or their heirs and beneficiaries.
a) Appeals lodged by the person concerned against administrative decisions on grounds such as: lack of jurisdiction; a defect of form; violation, misapplication or misinterpretation of the rules and regulations; or abuse of authority. An "administrative decision" is deemed to include a persistent failure or refusal by the administrative authority to take a decision that it has an obligation to take under the rules and regulations.
c) Employment-related compensation claims made by the persons concerned against the Government or independent public corporate bodies.
d) Claims made by the persons concerned in contractual disputes to which the Government or any of its corporate bodies is a party.
e) Disciplinary actions brought by the Control and Investigation Board.
f) Criminal actions brought against persons accused of legally designated offences of forgery, the offences specified in the Statute on the Prevention of Bribery, the offences specified in Royal Decree No. 43 of 29/11/1377 H, corresponding to AD June 16, 1958, the offences specified in the Statute on the Administration of Public Funds promulgated in Royal Decree No. 77 of 23/10/1395, corresponding to AD October 28, 1975, and also criminal actions brought against persons accused of committing offences and infractions specified in the regulations if the Board is required to hear them by order of the Prime Minister.
g) Petitions for the execution of foreign judgements.
h) Matters over which the Board has jurisdiction under the terms of special statutory provisions.
It is noteworthy that there are a number of commissions which, under the Kingdom's regulations, are empowered to adjudicate in specific types of disputes. The establishment of these commissions was necessitated not only by the need to ease the burden on the courts but also by the nature of these disputes, in which only specialists are competent to adjudicate. These commissions include:
Persons engaged in the administration of justice require a high standard of knowledge, professional skill and culture, familiarity with social issues and an ability to find equitable solutions to the cases brought before them. It is particularly important to train judges, enhance their expertise and develop their skills since they constitute the kingpin of the country's judicial system.
Accordingly, the Kingdom has established a Judicial Academy to provide members of the judiciary with the knowledge and expertise that they need in order to fulfil their lofty mission of administering justice. This Academy is endeavoring to develop in-depth scholarly research in fields of jurisprudence through the academic and research programs that it formulates for its students. The Academy has been able to provide the judiciary with many judges of a high academic, cultural and professional standard by virtue of the intensive and in-depth specialized knowledge and familiarity with judicial traditions that they acquired during their studies.
In addition to this judicial training, the Kingdom assigns newly appointed judges to a court for a three-year period so that they can become acquainted with its working procedures, after which simple cases and settlements are referred to them by the court's presiding judge who, before judgement is handed down, reviews the action taken and, if it is in conformity with the rules, approves the judgement. Hence, it is evident that the Kingdom's judges receive the theoretical and practical training needed to enable them to administer justice in a trustworthy manner.
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