Sources On Arab Judiciaries
United Arab Emirates
Constitutional Provisions On The Judiciary
Structure Of Court System
Personal Status Issues
Appointing/ Assigning/ Evaluation Of Judges
Administration And Relationship With The Ministry Of Justice
Specialized Courts And Their Jurisdictions
Arab Judicial Structures
A Study Presented To The United Nations Development Program
by Nathan J. Brown
Saudi Arabia stands distinct from the rest of the Arab world in that the shari�a courts have never lost their status as courts of general jurisdiction, and the Islamic shari�a remains the fundamental basis of the legal system. This is not to say that other Arab states have no role for the Islamic shari�a�far from it. The Islamic shari�a is often accorded special constitutional status in the Arab world, it is taught in law schools, it informs vast areas of law (most notably personal status), and many countries strive to insure that their legal order does not violate any clear provision of the shari�a. The result in these other countries is an amalgamated legal system (generally combining a civil law orientation with the Islamic shari�a). Traces of a similar amalgamation or hybrid system can be found in parts of the Saudi legal order, but the foundation of the Saudi order is wholly shari�a-based.
- Constitutional provisions for the judiciary
Saudi Arabia did not receive a comprehensive written constitution until 1992, by which time the current judicial system was well established. Thus the Saudi Basic Law did not so much establish the judicial order as describe it, codifying current practice. Indeed, the Basic Law does not even describe itself as a constitution, proclaiming in its first article that the Qur�an and the Sunnah form the constitution of Saudi Arabia. In a sense, the shari�a is therefore seen superior to any positive legal or judicial order. Despite this modesty, the Basic Law does have a section on the judiciary comprising nine articles. These provisions assume a unified, shari�a-based judiciary, independent of the ruler but respected by him, supplemented by a �Board of Grievances� and other supporting bodies:
Article 46 The judiciary is an independent authority. There is no control over judges in the dispensation of their judgements except in the case of the Islamic shari�a.
Article 47 The right to litigation is guaranteed to citizens and residents of the Kingdom on an equal basis. The law defines the required procedures for this.
Article 48 The courts will apply the rules of the Islamic shari�a in the cases that are brought before them, in accordance with what is indicated in the Book and the Sunnah, and statutes decreed by the Ruler which do not contradict the Book or the Sunnah.
Article 49 Observing what is stated in Article 53, the courts shall arbitrate in all disputes and crimes.
Article 50 The King, or whoever deputizes for him, is responsible for the implementation of judicial rulings.
Article 51 The authorities establish the formation of the Higher Council of Justice and its prerogatives; they also establish the seniority of the courts and their prerogatives.
Article 52 The appointment of judges and the termination of their duties is carried out by Royal decree by a proposal from the Higher Council of Justice in accordance with the provisions of the law.
Article 53 The law establishes the seniority of the Board of Grievances and its prerogatives.
Article 54 The law establishes the relationship between the investigative body and the Prosecutor-general, and their organization and prerogatives.
- Structure of court system
The basis of the court system are the shari�a courts. There are two levels of trial courts; cases are assigned according to their seriousness. There is also an appeals court. The appeals court may reverse or affirm a ruling; it may also seek greater information from the trial court. In a limited number of very serious cases, it is possible to appeal to the Supreme Judicial Council (which is described in more detail in #5 below).
A number of specialized tribunals also exist. These are detailed in #8 below. In some cases, the tribunals are sufficiently developed that there are two levels (with the higher tribunal hearing appeals from the lower one). There have been some efforts in recent years to bring these specialized tribunals under the shari�a courts or to transfer their jurisdiction. Some unification seems to be anticipated by the Basic Law, which makes no provision for them (other than the Board of Grievances). But to date no unification has taken place.
- Personal status issues
With the shari�a courts having general jurisdiction, there is no special set of personal status courts or a personal status code.
- Prosecution system
The investigation and prosecution of crimes is generally the task of the police and the Ministry of Interior. In recent years, an effort was begun to train judicial personnel in this task. Should this be successfully completed, prosecution would effectively shift from the Ministry of Interior to the Ministry of Justice. Saudi Arabia�s system would then more closely resemble the niyaba system prevailing in much of the Arab world, though the prosecutors would be trained in Islamic rather than legislated criminal law. However, as of this writing, public prosecution remains largely a task of the Ministry of Interior.
- Appointing/assigning/evaluation of judges
The Saudi Arabian judiciary is governed by a Supreme Judicial Council with eleven members. Five members are full-time; they are appointed by royal order from among senior judges. The remaining six members consist of the president of the council (appointed by royal order), the president of the appeals court, the deputy minister of justice, and three other senior judges.
With the exception of the deputy minister of justice and potentially the president, therefore, all the members of the Supreme Judicial Council, all members are judges. While the role for royal appointment is great, in practice the Council has been an autonomous organization.
- Administration and Relationship with Ministry of Justice
The Supreme Judicial Council has wide jurisdiction over judicial matters, but much of the administrative support for the courts comes from the Ministry of Justice. It is difficult to obtain precise information on budgetary matters, but there is little evidence of controversy in the matter. It is probable that the Ministry of Justice maintains oversight over the budget of the courts, but this does not seem to have diminished their autonomy.
The Ministry of Justice is a fairly recent creation, dating back only to 1970. Thus by the time the Ministry itself was established, the courts were strong and autonomous. Traditionally the Minister of Justice is appointed from the body of religious scholars in the Kingdom and thus retains the respect of the shari�a judiciary. There is little evidence of tension between the Ministry and the judiciary, though the judiciary is traditionally reluctant to accept all of the administrative regulations in place in the Kingdom that do not derive directly from the shari�a.
- Specialized courts
Since the beginning of the Kingdom, regulations (nizams) have been periodically issued to govern administrative matters or those not covered by existing Islamic jurisprudence. While these regulations do not derive from the shari�a, an effort is made to ensure that they do not conflict with its provisions.
However, the shari�a judiciary has been historically reluctant to supplement shari�a with such regulations, leading to the creation of a series of specialized boards, tribunals, and committees to apply this body of law. The only such body to be mentioned in the Basic Law, the �Board of Grievances,� has a longer standing, higher public profile, and greater prestige than most of the other such bodies. Among the most important are:
- Committee for the Settlement of Commercial Disputes. This is one of the oldest specialized tribunals, with antecedents in the Ottoman period. The committee is part of the Ministry of Commerce. In 1969, the body was reformed so that a majority of two on each of its three-person panels would be shari�a judges. The third member would come from the Ministry of Commerce. In 1987, its jurisdiction was assigned to the Board of Grievances. This step was to be temporary, to eliminate the backlog of cases and to define the relationship between the specialized tribunals and the shari�a courts. However temporary this measure was intended to be, it is still in effect.
- Board of Grievances. This is the broadest of the specialized tribunals. Its structure was formalized in 1955, and it now operates on the basis of a 1982 law. The most significant area of its jurisdiction consists of cases in which a government agency is a party; this makes it roughly comparable to administrative courts. The Board of Grievances also deals with enforcement of foreign judgments and, since 1987, commercial disputes. While separate from the shari�a court system it is respectful of it, refraining from ruling on matters clearly dealt with by Islamic jurisprudence. The Board of Grievances is an independent body, serving directly under the King.
- Labor Board. The Labor board is a set of tribunals within the Ministry of Labor that deal with disputes arising under Saudi Labor laws. The Board has two levels, a lower level with general jurisdiction over such disputes, and an upper level, which serves as an appeals body.
Other, similar bodies exist for monetary issues, traffic, and customs. The Kingdom has made an effort to bring these various bodies under the shari�a courts, but no concrete steps have yet been taken.
- Judicial education
Most judges in the shari�a court system have a traditional shari�a education (Hanbali school). Some have received a portion of their education abroad; in recent years all judges have been university-trained. Following their university training in Islamic law, candidates for judicial position attend the High Institute of the Judiciary. In addition, there is a period of practical training in which they are attached to specific courts.
The specialized regulatory system is also taught in Saudi institutions. Some universities offer courses on the regulatory system and an �Institute of Public Administration� (founded in 1961) also offers academic training in the regulatory system.