Saudi Arabia's Judicial System

Author(s): Soliman A. Solaim

Source: Middle East Journal, Vol. 25, No. 3 (Summer, 1971), pp. 403-407
Published by: Middle East Institute
Stable URL: http://www.jstor.org/stable/4324782
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 LEGAL REVIEW

SAUDI ARABIA'S JUDICIAL SYSTEM

Soliman A. Solaim

After Madinah resigned its role as the center weight of the Ottoman reforms of the 19th
of Muslim power to Damascus under the century.

Umayyads in the seventh century there was no
central power in most of Arabia. Only under
the leadership of King 'Abd al-'Azlz Al Sa'iud
did a major part of the Arabian Peninsula be-
come able to shape its own destiny in what is
known today as Saudi Arabia. The alliance
which was struck between the House of Sa'iud
and the reformist Muhammad b. 'Abd al-
Wahhab proved capable of responding to the
requirements of a modern nation-state. Fore-
most among these requirements has been, for
Saudi Arabia, the development of modern legis-
lation and the reorganization of judicial insti- customary tribal law, in which each tribe had
tutions without necessarily changing their
essentially Islamic character.
This article will deal with the development
and working of these institutions and their
relevance to the general evolution of the
country.
The Traditional System
By the time King 'Abd al-'Aziz took control
of the Hijaz in the early 1920s, he found him-
self faced with the existence of three different, school as interpreted by Muhammad b. 'Abd
though not separate, judicial systems. That of
the Hijaz had the distinction of having con-
siderable Ottoman influence. Although the
whole of the Arabian Peninsula was under the
nominal sovereignty of the Ottoman Empire,
only the urban centers of the Hijiz felt the
The second system was that of the small
towns of Najd. Here, the settlement of disputes
was the responsibility of the local Amir (Gov-
ernor) and a single judge. The Amir would
attempt to reconcile differences or refer them
to the judge, either at his own discretion or at
the request of one or all of the litigants. The
execution of the judge's decision was the duty
of the Amir who was assisted by some of the
town notables and a sort of a small police force
called "The Amir's men."
Lastly, the desert men held to their age-old
its own lawmen render judgments according to
precedents and had recourse to a system of arbi-
tration in cases of inter-tribal disputes.
Since these were acceptable and workable
systems, the King did not introduce any drastic
changes; he merely tried to make them work
more smoothly and began a process for their
unification. What he brought to the Hijaz was
the orientation, gained in some twenty-five
years experience, towards a system of simple
and expeditious justice based on the Hanbali
al-Wahhab.
The existing Ottoman laws of the Hijaz were
so repugnant to the puritanical zeal of his fol-
lowers that he had to refer the question to the
eulamz' (doctors of the law). The latter in their
famous legal opinion of February 1927 were

A SOLIMAN A. SOLAIM is assistant Director General of the General Social Insurance Organization of the
Saudi Arabian government, Riyadh. This article is based on the author's doctoral dissertation "Consti-
tutional and Judicial Organization in Saudi Arabia," available in transcript at the School of Advanced
International Studies of the Johns Hopkins University, Washington, D. C.

403

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 404 THE MIDDLE EAST JOURNAL

categorically against his plan of absorbing the foundation of a unified judicial system for the
more developed Hijzi institutions, . . . and as Kingdom was taken in 1927. A Royal Decree
to the laws," they stated, "if there be any of classified judicial institutions into three de-
them in the Hijaz, it will be immediately abol- grees: expeditious courts, shariah courts and
ished, and nothing except the pure Sharl'ah the Commission on Judicial Supervision.5 The
will be applied."' Far from acknowledging de- expeditious courts handled the more simple
feat in this matter, the King, after letting the criminal and civil cases and were divided into
dust settle, issued an order sanctioning the exist- first expeditious courts and second expeditious
ing Ottoman laws of the Hijaz.2 courts. The latter dealt with cases involving
The King then started a campaign of liberal- nomads. All other cases were within the juris-
ization aimed at drawing upon schools of law diction of the shariah courts. In addition to in-
other than the Hanbali school and at attacking specting and supervising the courts, the Com-
the concept of taqlid (imitation). He repeated mission had the function of judicial review.
the Prophet's warning, "You will follow the This early jurisdictional delimitation of
paths of those who preceded you hand-span by judicial institutions in the Hijaz, rough and
hand-span and cubit by cubit. Even if they brief as it was, could be considered as basically
entered a mastigure's hole you would."3 the organizational outline of the shari'ah courts
Apart from this campaign, the King brought as they stand today. The latest important legis-
to law in the Hijaz two elements the Hijz-is lation on the subject, the Attributions of
learned quickly to appreciate: accessibility and Shar7/ah Jurisprudence Responsibilities of 1952,
speed. These were things the Hashimites, per- though more detailed, and covering such sub-
haps due to their Ottoman orientation, were jects as the Notaries Public, the Property De-
incapable of providing for their subjects. Frompartments and the Summoning Officers, did not
the early days of his conquest of the Hijaz, he signify any radical departure. The organizational
made himself available for his people. Most framework remained as follows:
representative of this attitude is his invitation
to his subjects which was published in the offi-
OFFICE OF
cial newspaper:
"His Majesty the King announces to all the THE CHIEF JUDGE
people that anyone who may have a grievance
against whomever . . . and then he hides it, he
will be sinning only against himself.... There Office of Shari'ah
is set aside, on the door of the Government Inspector General Reviewing Commissions
Building, a box of complaints whose key is
kept by the King. The aggrieved party should
deposit his complaint in that box."4 Greater Shari'ah Courts
This, then, was the simple way the King con-
ceived as sufficient for handling grievances in Shari'ah Courts
the Hijaz at the beginning. Indeed the idea of
a "box of complaints" in itself was an improve-
Expeditious Courts
ment or, perhaps, a necessary refinement of the
more simple procedure in Riyadh, where there
was no such box.

First Second
The Administrative Reorganization
Expeditious Courts Expeditious Courts
The first step towards laying down the

1. Arabic text in Hifi; Wahba's Jazirat al-'Arab Ii al-Qarn al-'Ishfin (Cairo [n.p]
2. Majimiat al-Nu;um (Makkah: Umm al-Quira Press, 1938), p. 8.
3. Umm al-Qird (Makkah), March 24, 1934.
4. Umm al-Qurd (Makkah), June 7, 1926.
5. Maim,f'at al-Nuqum, pp. 9-12.

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 LEGAL REVIEW 405

The courts and the single judges were as- he should prepare his "bill of objections." The
signed six Hanbali books to draw upon n Commission on Judicial Review may ratify or
rendering judgments.6 This was an important reverse the decision within a period not exceed-
step toward unifying the judiciary, since up to ing one month. It may also ask the judge of the
then the prevailing schools of law were the lower court to clarify certain points in his
Hanafi and the Shrfi'i in the Hijaz and the decision.
lOanbali in Najd. It should be pointed out, how- The judge, in case of a reversal, may make an
ever, that judges could have recourse to the effort to convince the Commission of the cor-
other three schools of law and to their own rectness of his original decision or start a new
reasoning in cases where no provisions were trial. If the judge, however, insists on his
provided in the six books. original decision, the case is transferred to an-
other court. This procedure seems to give due
Judic$Cl Procedure consideration to the judge's independence and
piety.
Judicial procedure has been the subject of
The simplicity and dignity of these proce-
four major legislative actions in 1927, 1931,
dural rules are well recognized. Foreigners who
1936 and 1952. The latter, "The Organization
have come in contact with Saudi judges have
of Administrative Functions in the Shari'ah
been impressed with their independence, integ-
Court System," remains operative today.7
rity and incorruptibility.8 Several measures have
Procedural rules in court are simple. When
been taken to overcome some of the shortcom-
both plaintiff and defendant are present, the
ings of the system. The first of these measures
judge listens first to the plaintiff's arguments
has to do with the absence of the right of habeas
and orders them put on record. He then does
corpus in criminal proceedings. This defect has
the same with the defendant. The litigants at
been balanced by the priority given for consid-
this point may refute each other's arguments
ering cases involving imprisonment in both the
and the judge orders the recording of the legally
initial stages of the trial and at the appellate
correct refutations only. The litigants may bring
level, by deducting the period served pending
witnesses but the judge has the responsibility
trial from jail sentence and by the growing ac-
of ascertaining that they are of good character
ceptability of the bond system. The need for
('adil). Cross examination can only be done by
distinguishing private from public right has
the judge, but any of the litigants may refute
been underlined by the assumption that the
the other's evidence, question the character of
jurisdiction of shariah courts is brought into
his witnesses and examine, in court, the docu-
action only when there is a private aggrieved
ments he produces. It should be noticed, how-
party. Public right is the responsibility of civil
ever, that the characterization of a refutation
authoritles.
(daf') by one party as legally correct (s4aih)
is within the judge's power.
Supplementary Organs with Judicial Functions
The judge's decision must include a summary
of the facts of the case and the legal reasoning The sha6toah courts have been functioning
behind it. If the decision is appealable it is the effectively due to their simplicity of procedure,
duty of the judge, according to "The Instruc- speedy handling of cases and, most of all, to the
tions on the Reviewing of Shariah Judgments," respect the average Saudi citizen holds for the
to ask the condemned party whether he is satis- judges and for the Islamic law which they apply.
fied with the judgment. If the answer is in the Yet the problems of social, economic and ad-
negative, the judge then informs him of his ministrative development which modern Saudi
right to appeal within ten days during which Arabia has witnessed and the great volume of

6. FuW!d Hamza, a-Biid al-'Arabiyyah al-Sa'idiyyab (Riyadh: Maktabat al-Nasr al-Hadithah, 1968), p. 197.
7. Tanzim aI-A'mJl al-Iddriyyah fi d-Dawj'ir al-Sbar'iyyah (Makkah: Matba'at al-Hukiima, 1962).
8. Parker T. Hart, "Application of Hanbalite and Decree Law to Foreigners in Saudi Arabia," George
Washington Law Review, XXII (Dec. 1953), 173.

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 406 THE MIDDLE EAST JOURNAL

legislation they entailed proved too fast for through a combination of tactfulness and firm-
these courts to cope with and too urgent for theness on the part of King 'Abd al-'Aziz during
King to handle. The King, therefore, graduallyhis long reign. Many anecdotes have been re-
delegated semi-judicial power to organs in the counted to illustrate the manner in which he
form of committees, commissions, boards, coun- was able to persuade the 'ula'mY to accept such
cils and tribunals. The following are the most modern innovations as the radio and the wire-
important of such organs: less.9 Yet he did not hesitate to crush contro-
The Grievance Board versy over the shariah when it bordered on
The Committee on Cases of Forgery fanaticism. The reorganization of the judiciary
The Commission on Cases of Bribery and the vast expansion of legislation by decree
The Commission on the Impeachment of took place over such an extended period as to
Ministers make it almost imperceptible. The King, there-
The Commission on the Settlement of fore, won the tolerance of the 'ulamX not only
Commercial Disputes by his sincere respect for the shaui'ah but equally
The Central Committees on Cases of by his deliberate attention to form and his sense
Adulteration of compromise. This tradition of deference to
The Supreme Commission on Labor Disputes the 'mlam' has been continued after the death
The Disciplinary Councils for Civil Servants of King 'Abd al-'Aziz.
The Disciplinary Councils for Military The position of the Vama in Saudi Arabia
Personnel. vis-a'-vis modern legislation and judicial reform
While some of these organs, such as the Griev- can be distinguished from that of their counter-
ance Board, function on a continuous basis, parts elsewhere in the Muslim world whom
others, such as the various disciplinary councils,Professor Schacht accused of ". . . picking iso-
are of an ad hoc character.
lated fragments of opinions from the early cen-
The Grievance Board can be considered the turies of Islamic law, arranging them into a
final refinement of the original idea of the "box kind of arbitrary mosaic, and concealing behind
of complaints" referred to above. Historically,this screen an essentially different structure of
it goes back to the concept of ma.zalim in
ideas borrowed from the West...."10
Islamic law. It is the most important of the
To their credit, the 'ulamY of Saudi Arabia
supplementary organs not only because of the
never followed such an apologistic approach.
wide area of its jurisdiction, which includes,
Unlike the case in these other countries, the
inter alia, administrative justice, but equally be-
institutions and the laws of Saudi Arabia have
cause it is progressively asserting itself as a
permanent institution. This central position in
been home-grown and voluntarily adopted. The
country has never known any system of capitu-
the system of justice in Saudi Arabia has been
lations and has striven to arrange its judicial
the product of the extreme difficulty involved
relations with other countries by entering in
in digesting and incorporating the ever-growing
international engagements on an equal footing
administrative and other regulations into the
to organize such questions as extradition, diplo-
shari'ah and, consequently, into the shariah
court system. matic immunities, narcotic drugs and execution
of judgments. The 'ulamd, therefore, were not
faced with an imposed foreign law which would
The Evolutionary Character of the
confront them with the dilemma of either call-
System's Development
ing for its repeal-and thus creating a vacuum
Saudi Arabia's ability to meet the needs of -or producing an instant Islamic alternative,
modern legislation was made possible mainly something beyond their human reach. Such was

9. See for example William A. Eddy, "King Ibn Saud: 'Our Faith and Your Iron'," Middle East Journal,
XVII (Summer 1963), 257-263.
10. Joseph Schacht, "Problems of Modern Islamic Legislation" in The Modern Middle East, ed.
H. Nolte (New York: Atherton Press, 1963), p. 191.

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 LEGAL REVIEW 407

the case in Pakistan as late as the middle of the visions in this law. In such a case, the Commis-
sion shall be guided by the principles of Islamic
twentieth century. They, instead, preferred to
shari'ah, local rules, established judicial prece-
meet the new decree legislation with dignified dents, principles of justice, usage and the rules
silence. This, under the circumstances, was no of equity.
mean contribution to judicial reform. To the knowledge of this writer, nowhere are
Certain considerations underlined this atti- the sources of the law more clearly and liberally
tude of the 'ulamd'. The first is that, accordingstated. It is particularly so since the Law of
to precedent and Islamic tradition, they acquiredLabor and Workmen has been informally ap-
their titles as judges and muftis by virtue of proved of by Saudi Muslim jurists.
delegation from the people of authority. This Since the legal opinion of 1927 condemning
system of delegation was only strengthened bytaxes and the wireless the country has come a
the general administrative growth. Literally, long way indeed. It has been a steady process,
they have been bureaucratized. Secondly, the in which the country never lost sight of its past,
emphasis in the Hanbali school on the Qur'an to the point where it has been remarked that
and the Sunnah has in effect removed many Saudi Arabia is entering the twentieth century
possible objections to new legislation which riding its camel backward. Yet, in the pragmatic
could be found elsewhere in the books of juris-thinking of the bedouin, what counts most is
prudence. Finally, the rule that says "things are that Saudi Arabia does enter the twentieth cen-
assumed to be allowable unless there is proof of tury without losing its balance in the process.
their prohibition" is particularly emphasized in How else could the country avoid what Alvin
the Hanbali school as applicable to transactions.Toffler called "the dizzying disorientation
As decree legislation grew in size and intri- brought on by the premature arrival of the
cacy, there developed a tendency towards estab- future"?
lishing semi-judicial organs to insure its appli-
cation. Enough coordination exists today be-
Since the above was written two develop-
tween these organs and the shaf-ah courts since
ments which are in keeping with the evolu-
the former are more concerned with the applica-
tionary character of Saudi Arabia's judicial
tion of decree legislation while the latter are
system took place:
more concerned with the application of the
1. Shaykh Muhammad al-Harkan, a capable
shaz4'ah. Yet this is only a matter of emphasis
and liberal-minded former judge, was ap-
since both pay due respect to the shariah and
pointed Minister of Justice by Royal Decree
to decree legislation, which is assumed to be
No. M/105 of September 22, 1970.
conforming to the shacriah. It is this coordina-
2. The Commission on Supervision and In-
tion that made it possible to state in Article
vestigation and the Commission on Disci-
185 of Labor and Workmen Law that:
plining Civil Servants were established by
None of the Commissions provided for in this
Chapter may abstain from rendering a decision Royal Decree No. M/7 of March 28, 1971.
on the pretext that there are no applicable pro- Both are permanent in character.

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