Saudi Arabia is a monarchy with a strong historical alliance between the nation’s rulers and the clergy. For many years after the Saudi state was created, Islamic law was uncodified and applied in a decentralized manner by local ulema sitting as judges. Ulema are Islamic legal scholars who do not resolve disputes or serve in an official capacity. In the 1960s, a single unified court system was established; more recently, the monarchy has led efforts to codify prior rulings on Islamic law and implement rules of practice and procedure.
Legal System & Sources of Law
The legal system of Saudi Arabia is based on traditional Islamic law, also referred to as Sharia.
The Kingdom recognizes as law only that which is legislated by God in the Quran and the Sunnah. There are three main sources of law: Islamic law, statutory law, and royal orders.
The constitutive document of the monarchy, the Basic Ordinance of the Kingdom, states that the Quran and the Sunnah are the Saudi Constitution. The Sunnah is the teachings and actions of the Prophet Mohammed; its dictates are compiled and interpreted in manuscripts drafted by scholars of Islamic law and jurisprudence.
Historically, Islamic law was interpreted from Hanbali texts on Islamic jurisprudence. Ulema create and compile these interpretations. In recent years, these interpretations have been codified and the sharia has been supplemented with rules of procedure.
The Saudi government has introduced regulations and royal decrees that address certain criminal and commercial matters in a manner compatible with Islamic principles. They have the force of law and are binding, but are not referred to as legislation or laws.
Judicial System
The judicial system has two main branches: the sharia courts and the Board of Grievances.
Sharia Courts
Sharia courts adjudicate criminal, civil, and personal status cases. In the first instance courts (criminal, commercial, labor, enforcement, civil), judges preside alone or in three-judge panels. Their judgments can be appealed to corresponding specialized courts of appeal. Civil appeals are heard by three-judge panels and criminal appeals by five-judge panels.
The “High Court” also hears cases in specialized panels: three judges preside over civil cases and five judges hear criminal. The High Court does not decide factual issues, only questions of law and procedure.
Board of Grievances
The Board of Grievances has jurisdiction over disputes where the Saudi government is a party, certain criminal offenses specified by regulation, the enforcement of foreign judgments, and cases referred to it under ad hoc regulations or by the Council of Ministers.
The Board has a chairman, vice-chairman, judges, and administrative staff. The Board is separated into three levels of review, with cases assigned to specialized tribunals for criminal, administrative, disciplinary, and commercial disputes involving private parties.
Judges
To become a judge in the Sharia Courts, candidates must have a degree in Sharia/Islamic law from a university (not merely a generalized law degree), complete a post-graduate qualifications program at the Institute of Higher Judiciary, and pass examinations administered by the Supreme Judicial Council. The Minister of Justice is responsible for the selection of judges in the Sharia Courts based on the recommendations given by the Supreme Judicial Council.
Members of the Board of Grievances must also have a diploma from a Sharia college or an equivalent university diploma as well as a master’s degree in law or a related legal field. They must also meet other the qualifications, depending on their rank within the judiciary. Members of the Board are selected by the Administrative Affairs Committee, which serves an administrative role equivalent to the Supreme Judicial Council.
Litigation
The Saudi system is inquisitorial; judges take an active role in investigating claims. There are no juries. During the litigation process, judges may apply an applicable fatwa. Issued by Islamic scholars, a fatwa is a non-binding opinion on an ambiguous question of Islamic law.
Judicial Administration
The Supreme Judicial Council, formerly the highest court of review, oversees judicial administration, including the supervision of courts and judges. Its chairman and ten members are appointed by the King. Article 46 of the Basic Law of Governance mandates that the judiciary is independent and subject to no authority other than Islamic law.
Court Proceedings
Civil complaints are filed with the Sharia Courts or Board of Grievances. In some courts (like the commercial courts), there is electronic case filing. After the complaint is processed, the court issues a hearing date and subpoenas the defendant.
The Public Prosecutor initiates most criminal actions. In some cases, the victim or his family initiate the criminal case. Defendants in criminal proceedings have a right to counsel at both the investigative and trial stages.
The “trial” process begins at the first court session. Evidence is not usually exchanged before proceedings commence. At the first hearing, parties submit statements of the claim and the defense. The court may hold additional short hearings during which evidence is presented. Judges lead the examination and cross examination of witnesses. Evidence is given orally or in writing. If an expert is needed, the judge will summon the expert. Most hearings are held in open court unless the judge or one of the parties requests a closed hearing.
Parties are permitted to submit any document that supports their claims, even if it includes private communications. Parties are not obligated to preserve evidence for litigation. There are no statutes of limitation for claims brought in Saudi Arabia (except for litigation involving commercial paper, labor disputes, and claims against managers). Appeals must be filed within thirty days. The most common remedy in civil cases is monetary damages or attachment orders to preserve a defendant’s asserts during litigation. Injunctions are not available.
- Judges have wide discretion in deciding cases. Most court decisions are not published, and there is no common-law concept of precedent. However, the government recently has begun to publish books of legal principles and procedure to enhance consistency in judicial decision making.
- Confessions and oaths or affirmations have a unique place in certain legal proceedings and are accorded significant weight due to the religious nature of the court system. The refusal to take an oath can be interpreted as an admission of guilt or as a failure to prove one’s case.
- Because judges in Saudi Arabia are required to obtain degrees in Islamic law, they may also be considered Ulema. Judges can be disqualified or must recuse from cases where they have issued a fatwa on the matter being litigated (even if the fatwa was issued prior to the judge’s joining the judiciary).