Shari’ah is divine in its sources and primary rules, and in Saudi Arabia, it covers all legal aspects: criminal, civil and international.
Muslims derived the legal rules of the Shari’ah primarily from the Holy Qur’an and secondarily from the Sunnah, the practices and sayings of the Prophet Muhammad during his lifetime. The third source is Ijma’ or the consensus of opinion of Muslim scholars regarding the applicable principles in a specific case occurring after the death of the Prophet. Qias, or analogy, is the fourth source of law. The Shari’ah contains both detailed descriptions of legal matters, as well as principles that serve as guides for issues that are not specified. In the Shari’ah, and therefore in Saudi Arabia, there is no difference between the sacred and the secular aspects of society. The teachings of Islamic principles serve as the guarantor of the moral code and the guideline for all legal matters in society.
The foundation of today’s institutional legal system in Saudi Arabia was established when King Abdulaziz incorporated the concept of ijtihad (personal reasoning) in the 1926 Constitution of the Hijaz, the western region of the Kingdom. Ijtihad permits judges to make decisions concerning cases that fall outside of the provisions covered by the Shari’ah.
In 1928, the King initiated the organization of the court system and the procedures to be followed. The legal system was subsequently refined with the addition of the Civil Procedures Rules of 1936 and 1952 and the establishment of the Board of Grievances in 1955. In 1965, the Higher Juridical Institute was established to provide a three-year intensive program for selected graduates of the Shari’ah College to enable them to better serve as lawyers and judges. Outstanding graduates of the college are recommended by professors to serve as clerks for judges. After years of apprenticeship, the clerks are then appointed as judges in the lowest courts in small towns. From there, they work their way up the heirarchy and advance to higher levels based on reviews of their work. Outstanding judges with at least 20 years of experience are appointed to the appeals courts.
The legal system was previously under the authority of the Grand Mufti and the Committee of Senior Muftis. In 1970, the entire system came under the supervision of the Ministry of Justice, established by King Faisal bin Abdulaziz. The role of the Grand Mufti was merged within the framework of the newly formed Ministry of Justice and complemented by the newly created Supreme Judicial Council.
At the apex of the legal system is the King, who acts as the final court of appeal and as a source of pardon. Elements of the judicial system in Saudi Arabia are differentiated throughout the government. In addition to the Shari’ah legal system, which is administered by the Ministry of Justice, the Saudi government has implemented regulations, built institutions and established committees to deal with cases not covered by the Shari’ah. These are designed to conform to Shari’ah principles and to supplement, rather than replace, it. The result is a dual legal system, one entirely based on the Shari’ah and another that is autonomous but not independent from it. The Saudi court system consists of Shari’ah Courts, the Board of Grievances, and various Committees with exclusive jurisdiction over specific disputes.
The Shari’ah legal system is divided into three levels. The highest is the 11-member Supreme Judicial Council, followed by the appeals courts and the ordinary or summary courts.
The Supreme Judicial Council supervises the court system and may be appealed to in serious cases. It is not a court and cannot alter the verdict; however, it may revert the case back to the Appeals Court for reconsideration. In addition, the council reviews major legal questions and important verdicts rendered in criminal cases.
The Shari’ah Courts are the largest court system in the Kingdom. Its judges are trained at Shari’ah colleges. An important feature of these courts is the short time, usually two months, required for hearings and final judgments to take place. In addition, there are no limitation periods and therefore the right to bring an action would not be affected by the passage of time.
There are two appeals court districts in the country. One is based in Riyadh and the other in Makkah. The high courts of Shari’ah are located in all major towns and are basically uniform with minor administrative variations from province to province. At the lowest level of the Shari’ah Courts are the Ordinary Courts or Courts of the First Instance. These deal with civil claims for sums less then 8,000 Saudi riyals (2,133.33 U.S. dollars), as well as minor felonies and misdemeanors. The competence of Shari’ah Courts at each level extends to all the traditional divisions of Shari’ah law: criminal, family and civil law. Certain branches of the Ordinary Courts deal exclusively with Bedouin affairs.
Shari’ah presumes the innocence of a defendant until he or she is proven guilty, and only in serious crimes or in cases of repeat offenders is one likely to witness severe punishments.
In order to file a complaint, a plaintiff in a civil action processes the claim initially in the appropriate court. In a criminal case, the claim is filed through the police in his own district or in the district of the defendant. Initially, the claimant may dictate his claim to the court clerk. The defendant is then notified and has the opportunity to present his case to the clerk. If a defendant fails to respond after three attempts made by the police in a three- to five-week interval, the case can then be heard in his absence. The judge listens to all evidence presented by the parties as well as expert testimony. The judge does not have to follow precedent, not even his own previous rulings. He is mainly a guide to the parties in seeking to settle and compromise. In doing so, the judge is bound only by the Qur'an, Sunnah and Ijma’.
Once the hearing is finalized, the judge is likely to make his decision on the same day. Objections to the decision must be made within 15 days and can be appealed to the High Court of Shari’ah. The next level is the Appeals Courts, which base their decisions on the transcripts of the proceedings of the lower courts but in some instances summon the claimants and additional witnesses for further hearings.
Claims rising from the various regulations established by Royal Decree — and therefore not covered by the Shari’ah — are heard by the Board of Grievances, which was established in 1955 under the authority of the Presidency of the Council of Ministers to function as the country’s principal administrative tribunal for claims involving the government. This court reviews complaints involving wrongdoings by judges, government officials and claims involving contracts between private individuals, whether Saudi or foreign, and Saudi governmental entities. The board also has jurisdiction over distributorship, commercial agencies, maritime disputes, and all commercial disputes except those related to banking.
The Board of Grievances is composed of the Administrative Division, Commercial Division and Penal Division. These include Audit Panels that act as courts of appeal. Complaints are filed with the chairman of the Grievance Board, who then selects a panel of experts to hear the case. At least one member of the panel must be a lawyer by training and profession. Parties are free to present evidence in support of their claim. Decisions are usually made by a majority vote and within several weeks of hearing the complaints. They are then reviewed by the Audit Panel, which can affirm, reverse or remand the decision. Once a decision has been made, it can only be appealed to the Council of Ministers. An appellant can direct his or her case to the office of the King or Crown Prince, which will refer it to the legal office of the Council of Ministers that then makes its own recommendation to the council. The council can remand a case back to the Grievance Board. A decision that is made by the council and signed by the King is final. Unlike Shari’ah Courts, decisions made by the Audit Panel that relate to Administrative Law form precedents and are binding on the Board of Grievances.
An important function of the Board of Grievances is that it is the body responsible for enforcing foreign judgments. The process starts by submitting a legalized copy of the judgment to the legal office of the Ministry of Foreign Affairs, which then passes the documents to the Board of Grievances. The board only reviews judgments that are final. Enforcing the judgment depends primarily on whether the court it came from is based in a country that is a party to any enforcement convention to which Saudi Arabia is also a signatory. In some cases, the dispute might have to be retried de novo within the Saudi legal system.
The Ministries of Interior, Commerce, and Labor and Social Affairs each have established a court system to deal with disputes that fall within its jurisdiction. The Interior Ministry enforces all motor vehicle regulations, and has established boards and committees to hear cases of commercial disputes and the enforcement of labor regulations. In 1965, a legal structure was established through the creation of committees to resolve commercial disputes under the supervision of the Ministry of Commerce. Arbitration committees for labor disputes were also created in 1969 under the Ministry of Labor and Social Affairs.
In 1992, the Committee for Conciliation of Commercial Agency Disputes was established to deal with conflicts between foreign companies and their Saudi agents. If the committee fails to resolve the dispute, the case is then referred to the courts. The committee can still make recommendations to the courts and to the Ministry of Commerce. It is important to note that the committee’s recommendations are not binding and only the courts can determine legal aspects of such disputes.
As far as disputes of a banking and financial nature are concerned, the Committee for Banking Disputes of the Saudi Arabian Monetary Agency (SAMA) has the power to recommend the attachment of assets and the freezing of bank accounts, and to restrict foreign travel of litigants.
The Labor Law Regulation, issued on November 15, 1969, that governs disputes related to labor and employment led to the Primary and Higher Commissions for the Settlements of Labor Disputes. The Primary Commission has exclusive and final jurisdiction over disputes relating to the imposition of fines on employees, claims in excess of 30,000 riyals (8,000 dollars), and unlawful termination of employment contracts. It also can hear claims related to labor injuries in excess of the same amount; however its decisions can be appealed to the Higher Commission, which is an appellate panel composed of representatives from the Ministries of Labor, Commerce, and Petroleum and Mineral Resources. It can override the decisions taken by the Primary Commission, in whole or in part, and its judgements are final.
Private financial rights among individuals pertaining to commercial or non-commercial obligation are under the jurisdiction of the Civil Right Directorate (CRD). The CRD’s most important function is the enforcement of judgments from the Shari’ah Courts and the commercial committees. Its regulations also contain provisions for bankruptcy or insolvency claims.
In many cases, parties may choose to resort to arbitration tribunals to resolve their disputes. The parties’ primary motive might be their freedom to choose their own arbitrators. The parties to the arbitration can be foreign or local firms; however government entities must obtain authorization from the Council of Ministers before becoming a party to an agreement providing for arbitration. In addition, the arbitration procedure can involve a more thorough review of documentation, a wider opportunity to examine witnesses and a larger use of outside experts. All decisions must be reached within 90 days. Hearings can take place outside of Saudi Arabia if necessary; however, this might result in delays.
What differentiates the arbitration process from that in other countries is that it does not avoid the courts or the commercial committees that would have jurisdiction over the dispute had the arbitration process not taken place. In the Kingdom, the courts and the committees are referred to as the “competent courts” and they must approve of the arbitration agreements, and decide whether or not to enforce the award and by what means. In cases where the parties fail to choose an arbitrator, the competent court can do so.
The arbitration process is governed by a Royal Decree which was issued on April 25, 1983, that states the arbitration tribunal must consist of an uneven number of arbitrators with the chairman being an expert in Shari’ah or in the Kingdom’s commercial rules and regulations. In 1993, the Kingdom ratified the New York Convention of June 10, 1958, on the Recognition and Enforcement of Foreign Arbitral Awards. Thus the Board of Grievances automatically enforces any arbitration award that is made by another party to the convention without examining the substance of the dispute. However, any judgment contrary to Islamic principles, such as the payment of interest, will not be enforced.
The Saudi legal system has witnessed significant developments in the last few decades to enable it to efficiently handle the demands of a rapidly advancing society. A constant feature of these changes is that they must be compatible with the basic principles of Shari’ah. Therefore, despite the fact that there is a division between the Shari’ah court system and the Board of Grievances and the specialized committees, Islamic principles prevail and are the guiding force behind the Saudi legal system as a whole.Security and safety are among the important features that people in Saudi Arabia enjoy. This is due to the strict adherence to Islamic principles and implementation of Shari’ah, which serves as a strong deterrent and reflects popular attitudes toward an orderly society.