By Sairah Narmah-Alqasim
Basic Law
The Kingdom of Saudi Arabia (“Saudi Arabia”),[1] since its inception on 23 September 1932 has been governed by Islamic Law. This was formalised by the issuance of the ‘Basic Law of Governance’ (the “Basic Law”), promulgated by Royal Decree (A/91) on 27 Sha’ban 1412H corresponding to 1 March 1992. It produced the nearest example of a Constitution for the country that is ruled by an absolute monarchy, and confirmed:
Article 1: The Kingdom of Saudi Arabia is a fully sovereign Arab Islamic State. Its religion shall be Islam and its constitution shall be the Book of God and the Sunnah (Traditions) of His Messenger, may God’s blessings and peace be upon him (PBUH). Its language shall be Arabic and its capital shall be the city of Riyadh.
Article 7: Governance in the Kingdom of Saudi Arabia derives its authority from the Book of God Most High and the Sunnah of his Messenger, both of which govern this Law and all the laws of the State.
Article 8: Governance in the Kingdom of Saudi Arabia shall be based on justice, shūrā (consultation), and equality in accordance with the Islamic sharī‘a.
Article 45: The source for fatwa (religious legal opinion) in the Kingdom of Saudi Arabia shall be the Book of God and the Sunnah of his Messenger (PBUH). The Law shall set forth the hierarchy and jurisdiction of the Board of Senior ʿulamā’ and the Department of Religious Research and Fatwā.
Article 46: The Judiciary shall be an independent authority. There shall be no power over judges in their judicial function other than the power of the Islamic sharī‘a.
Article 48: The courts shall apply to cases before them the provisions of Islamic sharī‘a, as indicated by the Qur’ān and the Sunna, and whatever laws not in conflict with the Qur’ān and the Sunnah which the authorities may promulgate. [2]
Primary and Secondary Sources of Law
In accordance with the Basic Law, the Qur’ān and the Sunna together form the primary sources of law that govern the country. The Sunna derives from the Prophet Muhammad’s ﷺconduct, practice, utterances, or his tacit approval of events.[3] ‘Saudi Arabia stands apart from other Muslim- majority countries, in that it consciously preserves the Sunni constitutional system that prevailed in most of the Muslim world for the last 1000 years’.[4] Other traditional secondary sources of Islamic Law, ijmā’ (consensus) and ijtihād (endeavour) are applied in the country, but in a limited manner. Ijmā’ allows for a consensus or unanimous opinion of Islamic scholars of a certain era to fill any area where the Qur’ān and Sunna are silent. It becomes part of Islamic jurisprudence as long as it does not conflict with the Qur’ān and Sunna. Ijmā’ in Saudi Arabia is largely limited to the ijmā’ of the companions of the Prophet ﷺ. Ijtihād can be carried out in a number of forms, such as qiyās (analogical reasoning), istihāb (legal presumption), istihsān (discretion), Urf (social custom) and Almasalih Almursalah (public welfare)[5], but again it is narrowly used.
Application
Although these primary and secondary sources of law exist in Saudi Arabia, it is the interpretation and understanding of them, the Islamic Jurisprudence (fiqh), that determines how they are applied. Developments in the understanding of these sources of law, and differing interpretations after the death of the Prophet ﷺ, led to the forming of four major schools (madhāhib) of Islamic jurisprudence, each of which consisted of a group of learned Islamic scholars. Each school (Madhab) was named retrospectively after its leading scholar, forming the (1) Hanafi (2) Mālikī (3) Shāfi‘ī and (4) Hanbali schools. These schools are not seen as distinct, but part of the body of Islamic jurisprudence as a whole. Nonetheless different Muslim-majority regions, including Saudi Arabia, have historically chosen to follow particular schools. Imam Ahmad Ibn Hanbal AD 780-955 founded the Hanbali school, which was adopted by Saudi Arabia as its official school of Islamic Jurisprudence, with the Supreme Judicial Council of Saudi Arabia in 1928 passing a resolution requiring all civil transactions be reviewed in courts using Hanbali texts.
In the modern day, where regulation is required to serve the public interest (maslaha), but has not previously been previously clearly mandated by Islamic Law, the King of Saudi Arabia, who carries the title of ‘Custodian of the Two Holy Mosques’ and is the head of the ‘House of Saud’ carries the authority as granted by Islamic Law, to put in place new regulations as long as they do not violate the principles of the Qur’ān and Sunna. Through this use of governance (siyāsa) the issuing of these regulations (nizams) therefore aids in bridging the gap between traditional Islamic Law against the modern needs of Saudi Arabian society. The regulations are ratified by royal decrees after consultation with the Council of Ministers and Consultative Council and then published in the official gazette ‘Umm Al-Qura’.[6] Those scholars in these councils maintain their independence and have the authority to reject any regulation which exceeds the boundaries of that afforded by Islamic Law. Nonetheless, through this Saudi Arabia has been able to establish a number of legal concepts and legal institutions based on Western systems, in fact a number of the substantive and procedural aspects of the law are similar to, and were received from other legal systems.[7] Such recourse as permitted by Islamic Law has allowed the country to develop its economic, financial, and social infrastructure in line with other developed countries, without attracting opposition amongst the more conservative elements of society.
The judicial system is divided into traditional Islamic courts and specialized statutory tribunals. The Islamic Law courts fell under the governance of the Judicial Regulation issued in 1975 and amended in 1975 and 1981.[8] The system was then reformed by the Law of the Judiciary promulgated by Royal Decree (M/78) on 19 Ramadhan 1428H corresponding to 1 October 2007.[9] Operating under Ministry of Justice, there are now three levels of courts. The Supreme Court in Riyadh is now the highest court in the Saudi Arabia. Each province in the Kingdom then has its own Appellate Courts each specializing in certain areas of law. The Courts of Appeal form the second layer, and then First Instant form the third layer in the hierarchy, existing in particular provinces and governorates as required. This third layer of the court system is covered by General Courts and those falling under Criminal Courts, Family Courts, Labor Courts and Commercial Courts, with the decision of the higher courts binding the lower courts. This highly significant reform which has not yet completed implementation has led to simplification and greater transparency in the jurisdiction of the courts with in the country with the Supreme Court holding the primary authority to overlook any inconsistencies in Islamic Law. Each court at every level follows Islamic Law rules on procedure and evidence. One of the main statutory tribunals is the Board of Grievances (Dīwān Al-Mazālem), created in 1955.[10] It is an independent administrative judicial body directly associated with the ruler of the country, under its jurisdiction is the resolution of disputes involving the Saudi Arabian government and its agencies.[11]
Judges presiding over the Islamic Law courts are Saudi nationals by descent and are usually trained in Islamic Law in one of the country’s law schools. They are independent, subject to no authority other than the provisions of Islamic Law and have capacity to issue binding judgments. The King additionally appoints religious scholars to all judicial positions or positions that offer influential legal opinion (fatāwā). [12] This per se does not lead to such scholars having control over the substance of Islamic Law in the country, which still drives from the study of pre- modern Hanbali treaties and the more recent Saudi juristic opinions. The most senior of these scholars is the Grand Muftī, who holds the position of the highest religious authority in the country, who in turn can affect judicial decisions.[13]
Although governance in the country and therefore, Islamic Law in the country has continued to evolve, to date there is no codification of the rules. Nor is there any system of judicial precedent, and court decisions have only begun to be published very recently. Legal reform in country is set to continue with ‘Saudi Arabia’s Vision 2030’, an ambitious blueprint setting out the country’s goals and expectations. Nonetheless, Islamic law forms the foundation of Saudi Arabia and is set to remain at the forefront of all areas.
Notes:
[1] Historically, Saudi Arabia on the Arabian Peninsula, between the Persian Gulf and Red Sea, now stands at the birthplace of Islam. It hosts two of the holiest sites of significance to Muslims throughout the world, Al-Masjid- Al- Haram (The Sacred Mosque) in the city of Makkah and, Al- Masjid an-Nabawi (The Mosque of the Prophet) in the city of Madinah. It is in Makkah and Madinah, where Muslims believe the literal word of God was revealed to the Prophet Muhammadﷺ, which was then compiled and transmitted to mankind in the form of the Qur’ān.
[2] Kingdom of Saudi Arabia, ‘Basic Law of Governance’ (1992) <https://www.constituteproject.org/constitution/Saudi_Arabia_2013.pdf>.
[3] It is noted that there are other definitions of ‘Sunnah’ depending upon on the intention for its use. A generic definition has been used for the current purpose. Wael B Hallaq, The Origins and Evolution of Islamic Law (Cambridge University Press 2004), 209.
[4] Frank E Vogel, ‘Shari‘a in the Politics of Saudi Arabia’ (2012) 10 The Review of Faith & International Affairs 18 18.
[5] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (3rd Revised edition, The Islamic Texts Society 2002).
[6] ‘Umm Al-Qura (Saudi Gazette)’ <https://www.uqn.gov.sa> accessed 10 June 2017.
[7] Joseph L Brand, ‘Aspects of Saudi Arabian Law and Practice’ (1986) 9 Boston College International and Comparative Law Review 1 2.
[8] Royal Decree (M/64) on 4 Rajab 1395H corresponding to 12 July 1975, amended by Royal Decree (M/76) on 14 Shawwal 1395H corresponding to 19 October 1975 and Royal Decree (M/4) on dated 1 Rabi Al-Awwal 1401H corresponding to 6 January 1981.
[9] ‘Law of Judiciary (Promulgated by Royal Decree No. M/78 on 19 Ramadan 1428H (October 1st, 2007)), <http://www.wipo.int/wipolex/en/details.jsp?id=14616> accessed 10 June 2017.
[10] Royal Decree (2/13/8759), promulgated on 17 Ramadhan 1374H corresponding to 8 May 1955, Kingdom of Saudi Arabia, ‘The Board of Grievances’ <https://www.bog.gov.sa/en/Pages/default.aspx> accessed 10 June 2017.
[11] Kingdom of Saudi Arabia (n 10).
[12] Frank E. Vogel, Islamic Law and Legal System [Electronic Resource]: Studies of Saudi Arabia (Brill 2000) <http://site.ebrary.com/lib/nottinghamtrent/Doc?id=10090632> accessed 21 July 2017 16-20.
[13] Abdulrahman Yahya Baamir, Shari’a Law in Commercial and Banking Arbitration: Law and Practice in Saudi Arabia (Ashgate Publishing, Ltd 2013).