CONTEMPORARY ISLAMIC COURT SYSTEMS:

 

THE SAUDI ARABIAN EXPERIENCE

By Prof. Dr. Rifyal Ka’bah

Supreme Judge of The Indonesian Supreme Court

FOREWORD

The court system of Saudi Arabia is one option for a system of judicial administration in modern times which is interesting to study for various reasons. First, it was in this land that the Prophet Muhammad, peace be upon him, and Islam became the reference for the Muslims around the world, yet this country has a system of government which is different from other Muslim-majority populated countries. Second, from the aspect of legal tradition, Saudi Arabia cannot be categorized as having a tradition of civil law or common law, yet the process of upholding the law has run in an orderly manner.

Third, the Saudi system of government does not recognize a separation between the legislative, executive and judicial branches, such as in Western nations, yet it cannot be said to be an authoritarian system. The respective authorities operate in harmony under the King, while taking their guidelines from: Islamic Law or Shariah, the consensus of the prominent Islamic scholars (ulama) and a Shura (Mutual Consultation) Council. Also, judicial authority stands on its own, without any intervention from other institutions, to carry out Islamic Law in addition to laws and regulations which are not at odds with Islamic Law.

Fourth, Saudi Arabia has undergone extraordinary modernization in all fields, yet still holds firm to Islamic teachings and long-standing traditions.

ISLAMIC COURT SYSTEM

The Islamic Court System is a part of the system of Islamic Law or Islamic Shariah. “Hukum Islam” (Islamic Law) and “Syari‟at Islam” (Islamic Shariah) are used interchangeably in Indonesian vocabulary. In the area of the study of law, especially in the universities, the term “Islamic law” is only found in the curriculum of general institutions of education, such as the Faculty of Law, while in the Islamic schools (madrasah) or Faculties of Shariah the term used is Shariah or Islamic Shariah (syari’ah and syari’at have the same connotation). National law, as spelled out in legislation, recognizes these two terms. Islamic Law or Syari‟at Islam is a part of Indonesia‟s national system of law. In this regard, Indonesia recognizes the terms Customary (Adat) Law, Islamic Law and Western Law.

At the international level, three systems of law are known, namely the continental law system (Civil Law), the Common Law legal system, and the socialist legal system (Socialist Law). Since the decline of Communism, the field of law has not given much attention to the socialist legal system. On top of that, the Islamic legal system (Shari‟ah Law) is not widely known, perhaps because it has not been introduced by Muslim-majority countries and experts in Islamic law at the international level. This is different from countries which apply the legal systems of Civil Law, Common Law and Socialist Law, due to the factor of colonization or the influence of the politics of law, or what Sue Farran calls legal imperialism. Now, after some countries officially have Islam as a part of their names, or have Islamic constitutions, or apply Islamic law within certain limits, as well as on account of the indications of the recent “Islamic revival”, discussions about the system of Islamic law and

Islamic Courts have become hot topics in the academic world.

In particular, discussion about Islamic Courts is not only of interest among academicians, but also among politicians and the general public. At this time, all of the member nations of the Organisation of the Islamic Conference (OIC) have courts dealing with Islamic Law which go by various names. In fact, secular nations such as Singapore and the State of Israel have Islamic courts. Even in America, Australia and European nations discussion has appeared in favor of recognizing Islamic courts. In early February 2008, no less than the Archbishop of Canterbury as a leader of the Church of England, proposed in a speech at The Royal Court of Justice that an Islamic court system be formed, which would have the authority to hear cases of family law and Islamic economics for its Muslim citizens. This recent development in England shows that there is a desire to recognize the decisions made by various Shariah Councils in the field of family law in London, Birmingham, Bradford and Manchester with a network in Nuneaton, Warwickshire. Two Shariah Councils in Glasgow and Edinburgh will soon be recognized. The same has also happened in California, United States, Canada and other areas.

It is a fact that Islamic courts take certain forms in countries with Muslim residents, regardless of whether they constitute a majority or minority. The difference between these countries can be seen from the aspects of court authority or competency, whether it is in certain fields which are seen as belonging to Islamic law, or in all fields which are connected to civil, criminal, economic, military and other matters. At the international level, the Fourteenth Session of the Conference of Foreign Ministers of Islamic Countries came up with a resolution to form an Islamic International Court of Justice which uses Shari‟ah Law and international law as its legal foundation.

As there are so many different practices and competencies in the Islamic courts in the modern world, it is not possible to describe a single pattern covering the entire system of Islamic judicial administration. Each system requires separate study, just like what must be done for the development of the court systems of Civil Law, Common Law and Socialist Law. In this oration, I will focus my talk on Islamic Courts as they exist in the Kingdom of Saudi Arabia.

The main reason for this variety of practices and authorities has to do with the historical and surrounding factors in Muslim-majority population countries. In any case, the development of all these various courts share a common legal foundation in the Qur‟an, the collected deeds, sayings, and approvals of Prophet Muhammad (known as the Sunnah) and the fiqh of the fuqaha’ (the religious jurisprudence derived by the Islamic scholars from the various schools of juristic reasoning) which has developed over time. It has been implemented by Prophet Muhammad, his Companions and the Muslim qadhi over the centuries. The duty of experts in modern Islamic law is to sift through this treasure trove of knowledge, develop the principles of ijtihad and to learn from the modern court systems.

From the aspect of the law used by Islamic courts around the world, whether for substantive law or the law of procedure, some variations are discernable. Some countries follow the Civil Law system in the matter of dependency upon laws, regulations and compilations, and there are those which follow the system of Common Law, whether from the jurisprudence of the courts based on the fiqh of the fuqaha’, or both. In either case, the law which is applied never diverges from the basic laws found in the Qur'an,

Sunnah and the positions of the fuqaha’. This is one factor which strengthens Islamic courts as a clearly distinguishable legal system.

STRUCTURE OF THE COURT SYSTEM8

Upholding justice is an order from Allah to the Prophet (Muhammad) and to the entire community of believers (Qur‟an: an-Nahl:90, ash-Shûrâ:15, al-Mâ‟idah:8). Since the upholding of justice in society is a religious obligation, since the time of Prophet Muhammad, peace be upon him, the administration of justice has been established to resolve disputes arising between individuals and groups. The judgment was initially conducted personally by the Prophet. All sides connected with the case were questioned by the Prophet in a judicial council by listening to the testimony of the reporting party, the accused, and the witnesses. The basic principle which the Prophet used from the outset in settling each case was that any charge, accusation or claim had to produce (supporting) evidence, while denials of guilt where there was no evidence had to be conducted based on oath-taking. After listening to the parties involved, the Prophet would make a decision in the case and the verdict was immediately carried out. In this case, the Prophet was the judge and represented the government as well. After the area of the Islamic State expanded, the Prophet allowed some of his Companions to hear cases in a number of regions, after giving some instructions to them on how to handle cases. Those who were appointed included famous Companions of the Prophet such as „Ali bin Abi Thalib, Abu Musa al-Anshârî and Mu„adz bin Jabal, who were appointed by the Prophet as judges as the Prophet‟s representative in certain areas.

When Abu Bakar became the first Caliph, he appointed „Umar bin al-Khaththab as court judge. It is reported that for two years no cases were submitted to the court. This is in part because the society was still very close to the time of the Prophet, and Islamic values were still very strongly held, and also in part because life at that time was still very simple, so not many legal issues emerged. When the territory grew, new cases began appearing. On this account, the Caliphs began forming the basis of the system of judicial administration and setting the conditions for someone to become a judge.

The Caliph, as the Head of State, for instance, appointed Abu Dardâ‟ as a judge for the court in Madinah, Syuraih bin al-Hârist al-Kindi as the judge in Kofah, Abu Musa al- Asy„arî as the judge for the court in Bashra, „Utsman bin Qais bin Abi al-„Ash as the judge of the Egyptian court. The Head of State, among other things, also made the Sham (roughly the area of modern-day Syria) court an independent court.

The requirements for such Islamic courts could be seen in a letter which was sent by Caliph „Umar bin Khaththab to Abu Musa al-Asy'ari, as follows:

To proceed. Verily the administration of justice is an obligation which is established and a tradition which is followed. Understand the cases which reach you. Verily there is no use to speak about truth without having its implementation. Treat the public well in your majelis, in your presence, and in your court, so that the people of good-standing will not covet to obtain unjust decisions through your agency, and the weak will not lose hope of receiving justice from you.

The claimants must have evidence and take oaths (to God) against the sued party. Amicable resolution is allowed between Muslims except when it makes lawful something which is religiously unlawful, or makes unlawful something which is religiously lawful. Whoever sues for intangible rights (haqqan ghâ iban) or evidence, then look into the matter to the full extent. If they can prove their case, then give them their rights, but if it cannot be proven, then you have already resolved the case. This is best in terms of justification and clearer for those who are in doubt.

 No one can prevent you from reviewing the cases you have passed judgment on if there was something in error (fahudîka li rusydik), that you may return to the truth. The truth is the utmost thing and cannot be annulled by anyone. Returning to the truth is better then continuing on in falsehood.

The Muslim Community stands up for one another, except those who have been proven of giving false witness, or have been sentenced to legal punishment, or whose loyalty or affinity is doubted. Allah the Most High in truth keeps the secrets of His servants and conceals the harshness of their punishment, unless evidence and sworn testimony is presented.

 So understand with true understanding the cases which are brought before you, which reach you but are not explicitly mentioned in the Qur an or in the Sunnah, and make qiyas (analogous reasoning) in the matter and be familiar with the precedents, and then base what you see on what is more beloved to Allah and closer to the truth.

 Stay completely away from anger, panic, rudeness, commotion and quarreling in disputes or cases (Abu „Ubaid, the one who recorded this, hesitates as to whether „Umar wrote “disputes” or “cases”). Verily the court is a place of truth which hopes for reward from Allah, and a place where it is good to make mention of Allah. Whoever has a sincere intention for truth, even if it does not side with them personally, Allah guarantees that whatever exists between a person and others, and whoever fabricates something in regard to their selves, then the matter rests with Allah. Verily, Allah the Most High only accepts from His servants that which is sincere. What do you think about the recompense from Allah and the storehouses of His mercy which He will presently bestow? Peace be upon you as well as Allah‟s mercy and blessing.

During the period of the Khulafa Rasyidin (first four Caliphs of Islam) the courts were still simple in form. The judges in that period did not have court clerks and the decisions of the court were not recorded in writing. Each verdict made was immediately carried out by the judge. Detailed regulations, the way to file a complaint, leveling charges, claims, areas of work, initial investigation, criminal investigation and other matters which were conducted later on were not needed in this period. The judicial authority of the judges during the period of the Khulafah Rasyidin was generally limited to civil cases. Criminal cases connected with hudud (established punishments as written in the texts of the Qur‟an and the Sunnah) and ta‘zîr (punishments from the consideration of the judges) were carried out by the Caliph or Sultan (wâlî).

 During the Umayyah Dynasty, court verdicts began to be recorded so that it would easy to refer back to if any mistakes had been made. The conditions to become a judge and court locations were determined, and Court for Unjust Acts (qadhâ al-Mazhâlim) began to be introduced. In the Abbasiyah Dynasty, the form and process of the courts, or law of judicial procedure, was developed, as were the types of courts. It was also in this period that the title of Qâdhî al-Qudhâ (’Supreme Court Judge) or Congregational Judge (Qâdhî al-Jamâ‘ah), which resembles the present-day Ministry of Justice, were made. Another characteristic of this period is that judges did not perform much ijtihad11 and just tended to follow one of the existing schools of Islamic jurisprudence (mathhab of fiqh). In this regard, the court in Iraq passed judgment on cases based on the Abu Hanifah school, in Syria and in the Maghrib (North Africa) it was based on the Malik school, and in Egypt it was based on the Syafi„î school.12

In subsequent periods, the form of the courts grew and became more varied. Ibnu al-Hasan an-Nabâhi, for instance, described the form of the courts in Andalusia in the 8th century on the Hijri calendar. He stated that all the judges (al-hukkâm) who presided over cases consisted of al-Qudhât

 (qadi, judges), asy-Syurthah al -Wusthâ (major police), asy-Syurthah ash-Shughrâ (minor police), Shâhib al-Mazhâlîm (officials for matters of unjust acts), Shâhib ar-Radd (officials for remonstrance, appeals), Shâhib al-Madînah (city officials) and Shâhib as-Sûq (market officials, trade issues). Meanwhile, Ibnu Qayyim al-Jawziyyah made mention of the courts in the State of North Africa in the eighth century on the Hijri (Islamic) calendar. According to him, the determining and adjucation of law also originated from the body of al -Hisbah (calculation of wealth, especially of state officials) which was the authority of the Wâli al-Hisbah. The tradition which was followed was that the personnel who worked in such positions had special authority. The courts of al-Mazhâlim also had special jurisdiction, which was under the authority of what was called the Wâli al-Mazhâlim (official for matters of unjust acts). Matters of money and currency were also a part of the authority of the special courts, which was the authority of officials called Wazîr (ministers) and Nâzhîr al-Balad (state inspectors) to inspect matters of finance and related matters known as Wilâyah Istîfâ’ (compliance of weights and measures, etc). Those responsible for taking care of these things are called Wilâyah asy-Syarr (officials in the field of criminal acts). Meanwhile, those responsible to pass judgment on disputes, the proving of rights, resolving marriage problems, divorce, living provision, and the validity or invalidity of contracts became the special authority of al-Hâkim and al-Qâdhî.”

The  origins  of  Saudi  Arabia  go  back  to  1750,  when  Muhammad  bin Sa'ud, a local ruler in the heart of Arabia, joined forces with Muhammad Abd al-Wahab, who was a religious revivalist, in order to form a nation. The modern Kingdom of Saudi Arabia came to be when „Abd al-Aziz ibn Sa‟ud was able to control the Hijaz region (Western area of present Saudi Arabia) in 1924. As founder of the kingdom and its first king, he applied Islamic teachings in public policy, the court system and other areas of life.

The Kingdom does not recognize political parties. State policy depends on the King and the King must act in accordance with the stipulations of the Syari‟at and traditions of the kingdom. The power of the King is not unlimited. His policies must obtain a (supporting) consensus from the family of the Kingdom, the ulama and other elements of the society. Members of the royal family select the king from among themselves, but must obtain the support of the ulama. For this reason, the King, Islamic Syari‟at, the ulama and Saudi traditions are an integral part of the system of the Kingdom of Saudi Arabia.

In August 1926, King „Abd al-„Aziz legalized a constitution known as at-Ta’limat al-Asasiyyah (Fundamental Regulations) for the Hijaz area. This Fundamental Regulations, which resembles the constitutions of modern nations, consists of nine chapters and seventy-eight articles. They are all related to constitutional issues such as the system of governance, administrative responsibilities, Hijaz Kingdom Affairs, accounting department, inspector general, employees of the royal family, council of generals, City Hall, and City Hall administrative committee. Article Four of this document is about the Consultation Council, Administrative Council, Regional Council, and Village and Tribal Council (kabilah).

In 1927, the Inspection and Reformation Commission was formed with the objective of reforming the system of governance. This commission proposed to King „Abd al-„Aziz the formation of a Consultation Council, which was approved by the King in July 1927. Upon the suggestion of this commission, in January 1932 a Representative Council (Majlis al-Wukala’) was formed. In September 1932 the entire areas of Saudi Arabia was united. This Council functioned for 23 years as a minor (administrative) cabinet for Hijaz area, up until the formation of the Council of Ministers proper, which began to cover all of present Saudi Arabia in September 1953.

Most of the constitutional bases of the Kingdom are represented in the Nizham Majlis al-Wuzara’ (Law of the Council of Ministers). This Law of the Council of Ministers has been revised several times to keep up with the times. From 1959 to 1960, King Faisal made a serious effort to create a new constitution for Saudi Arabia, but did not succeed. During his rule (1964-1975), he made many changes, among them establishing the Ministry of Justice (Wizarah al-‘Adl) in 1970 as the basis of judicial authority. During the rule of Faisal‟s successor, King Khalid ibn „Abd al-„Aziz (1975-1982), there was also an effort to make a new constitution.

Through various consultations, King Fahd ibn „Abd al-Aziz (1982-2005) continued the effort to update the constitution. On 27 Sya‟ban 1412 H he issued al-Marsum al-Malaki (Royal Decree) No. A/90 Regarding the Basic Law of Government, consisting of nine chapters and 83 articles. Chapter Eight is about: (1) General Principles, (2) System of Government, (3) Saudi Public Values, (4) Economic Principles, (5) Rights and Responsibilities, (6) Authority of the State, (7) Financial Matters, (8) Audit Institution, and (9) Closing.

Article  6  Chapter  II  states:  “Supported  by  the  Book  of  Allah  and  the Sunnah of the Messenger, peace be upon him, citizens give bay’ah (swear allegiance) to the King as being eternally loyal in good times and bad.” Article 7 Chapter II: “The Government of Saudi Arabia bases its rule on the Book of Allah and the Sunnah of the Prophet, which constitutes the highest legal reference from this Basic Law of Government and for other laws.” Article 8 Chapter II: “The Government of Saudi Arabia is based on justice, shura (consultation) and equality in accordance with Islamic Shari’ah.”

 

Chapter VI Regarding State Authority states in Article 44, among other things, that: “The authority of the State consists of the Judicial Authority, Executive Authority and Regulatory Authority. These three powers will cooperate in carrying out their respective functions in accordance with this Basic Law of Government and other law.”

 

Article 45: “Al-Qur’an al-Karim and the Sunnah of the Messenger of Allah, peace be upon him, are the sources of making fatwa. Laws will detail the administrative hierarchy of the composition of the Council of Senior Ulama, the Administration of Research, and the Office of the Mufti together with their functions.

 

Article 46: “The judiciary is an independent power. The decisions of the judges will not defer to authority other than the authority of Islamic Shari’ah.”

Article 48: “The courts apply Islamic Shari’ah in the cases brought before them in accordance with al-Qur’an al-Karim and the Sunnah, and the laws decreed by government which are decrees that are in

 

THE COURT SYSTEM OF SAUDI ARABIA

Before the establishment of the Kingdom of Saudi Arabia, there were three types of courts in this region. The first was in the Hijaz region, which had a system which was better than in the other areas. This was in part because of the modernization carried out by the Turkish Ottoman Kingdom in 1830, 1856 and 1876. Unfortunately, Hijaz ruler Syarif Husain cancelled these reforms at the beginning of the twentieth century. The second was in the Nejd region (around Riyadh), which followed the traditional system which had been handed down, which was based on prevailing customs and religious law. This system was never reformed. Dispute resolution was carried out by a judge and amir (king or his descendents who became rulers) in the interests of the disputing parties. Usually the execution of the judge‟s verdict was requested to the amir. The third method of dispute resolution, outside of these two above, was done based on the customs of certain tribes, which was more like arbitration (tahkm).

After the Kingdom of Saudi Arabia was established, the three systems above were eliminated. Based on a Royal Decree (al-Marsum al-Malaki) dated 4 Shafar 1346H/1927M, all of the courts were merged into one system. Article 24 of this decree stated that the courts in Saudi Arabia are divided into three levels, namely the Speedy Court (al-mahakim al-musta’jilah), Syar‟iyah Court (al-mahakim asy-syar’iyyah) and the Court Supervision Body (Hay’ah al-Muraqabah al-Qadha’iyyah). In accordance with this new regulation, three courts were formed in Jeddah, Makkah (Mecca) and Madinah. Other cities had their own systems regulated by their own rules.

The Speedy Court has authority in the criminal and civil fields. The criminal authority has to do with crimes which cause injury, qishash, certain ta’zir transgressions and hudud (a category of punishment). Civil authority has to do with money issues which are not in excess of 300 riyals, and its verdicts cannot be appealed except for decisions which go against a nushush (religious text) or ijma’ (consensus of experts in Islamic law).

Meanwhile, the Syar‟iyyah Court handles things outside of the authority of the Speedy Court in various fields in accordance with its competencies. The verdicts are reached based on ijma’ or majority vote. Serious criminal cases involving amputation and death penalties necessitate a plenary court session be convened.

The Court Supervision Body is headquartered in Makkah and is also called the Supreme Syari‟at Court (al-mahkamah asy-syari’iyyah al-kubra), consisting of three judges. This is the appellate court for the courts under it, and it controls the administration and oversight of the courts. In addition to this, the Supreme Syari‟at Court also issues fatwa (religious legal rulings) requested of it, supervises education and the education curriculum, as well as supervises institutions of Amar Ma’ruf Nahi Mungkar (commanding right and forbidding wrong in society).

Other laws and legislation which regulate issues of courts, among others, include:

1. Law of Concentration of Responsibility of the Syar‟iyyah Court (Nizham Tarkiz Mas’liyat al-Qadha’ asy-Syar’i) dated 4 Muharram 1357H/1938M.
2. Law on Matters of Justice (Nizham Kitab al-‘Adl) of 19.8.1364H/1945M. 
3. Law of Concentration of Responsibility of the Syar‟iyyah Court (Nizham Tarkiz Mas’uliyat al-Qadha’ asy-Syar’i) of 1732H/1952AD. 
4. Law of the Judiciary (Nizham al-Qadha’) of 1395H/1975AD.
5. Law of Judicial Authority (Nizham as-Sulthah al-Qadha’iyyah) No. 64 dated 14.7.1395H/1975AD.
6. Law of Judicial Authority (Nizham as-Sulthah al-Qadha’iyyah) of 2007.

In the early part of the establishment of the Kingdom of Saudi Arabia, the administration of justice was directly connected with the King. The King supervised the courts and the important decisions were left to him, but he gradually delegated this authority to special judges and formed bodies which were needed, under the King‟s supervision. Court regulations became increasingly well-organized, especially after King Faisal established the Ministry of Justice in 1962 and appointed the Minister of Justice in 1970. Before this, judicial matters were under the office of the Grand Mufti or the Council of Muftis, but after the establishment of the Ministry of Justice, the courts were immediately under this ministry, and the post of Mufti was joined with High Council of the Judiciary (al-Majlis al-A’la li al-Qadha’) or Saudi Supreme Court, which was established later. From here, the courts were divided into two major parts. The first consisted of some judicial institutions which stood on their own and were administrative in nature. The second was the shar’i or shar’iyyah courts (Islamic Syari‟at Courts) which are directly under the Ministry of Justice.

Free-Standing Judicial Institutions

1. Diwan al-Mazhalim (literal: Council of Injustices).
2. Hai’ah Muhakamah al-Wuzara’ (Cabinet Court Institution).
3. Al-Hai’at al-Mukhtashshah bi Ta’dib al-Muwazhzhafin (Special Institution for Disciplining Employees).
4. Lajnah Qadhaya at-Tazwir (Committee for Forgery Cases).
5. Hai’ah Hasm an-Niza’at at-Tijariyyah (Commerce Dispute Resolution Institution).
6. Al-Lujan al-Markaziyyah liqadhaya al-Ghisy at-Tijari (Central Committee for Business Fraud Cases).
7. Al-Ghuraf at-Tijariyyah wa ash-Shina’iyyah (Chamber of Commerce and Industry).
8. Al-Mahkamah at-Tijariyyah (Commerce Court).
9. Lajnah   Taswiyah   Qadhaya   al-‘Ummal   (Committee   for   Resolving Labor Cases).
10. Al-Majalis at-Ta’dibiyyah al-‘Askariyyah (Council of Military Discipline).
11. Al-Majalis at-Ta’dibiyyah li al-Amn ad-Dakhili (Council of Disciplinary Action for National Security).

 These self-standing court institutions are ad-hoc type bodies which do not operate on a continual basis. They operate when they are needed to hear certain cases, and do not have permanent judges and court officers. In any case, the first type, namely the Syar‟iyah Court, or the second, namely the Self-Standing Courts, are still a part of the four types of courts mentioned by the fuqaha’, namely the Regular Courts (al-Qadha’ al-‘Adiyah), Council of Unjust Acts Court (Qadha’ al-Mazhalim), Ombusdman Courts (Qadha’ al-Hisbiyyah), and Military Courts (al-Qadha’ al-‘Askari). Except for the Syar‟iyah Court, all of these self-standing courts are of the second, third and fourth types. In it subsequent development, the primary court is the Syar‟iyyah Court as the system of general courts, which is under the Ministry of Justice and the Council of Unjust Acts Court as the administrative courts under the King.

Council of Unjust Acts

 

The Court of Unjust Acts in the era of King „Abd al-„Aziz was initially a consideration of public complaints regarding injustices received by the people. The King set aside certain time each month to hear the complaints of the people, after which he would seek solutions. When the number and types of public complaints grew, then finally on 12.6.1373H/1954M an official state body was formed, called the Diwan al-Mazhalim, which was directly under the Office of the Prime Minister. This body handled public complaints in a professional manner. The complaints handled included wrongs committed by judges, government officials, and contracts which citizens entered into which involved foreign parties or government institutions. This institution also handled complaints about issues concerning the distribution of goods, trade representative offices, maritime disputes and all trade disputes excluding banks.

 

The authority of this institution was expanded into three divisions, namely administrative, commerce, and criminal affairs. It also has Audit Panels which function as appeals courts. The complaints are conveyed to the Council Chairman, who then forms a panel team which will discuss the case, while one of its members must be a lawyer or legal expert. A decision is usually made by taking a majority vote a few weeks after the complaint is made. The team can decide in favor of or against the complaint. If a decision has been made, an objection can only be submitted to the Cabinet or Council of Ministers. The requesting party submits their objection to the Office of the King or the Office of the Crown Prince, which sends it to the Office of Law of the King‟s or the Crown Prince. Afterwards, a reply will be given to the Diwan al-Mazhalim. If the decision has been signed by the King, then the decision is final. Unlike the decisions of the Syar‟iyyah Court, the decisions of the Audit Panel in the field of administrative law can serve as a precedent for the Diwan al-Mazhalim. 

One important function of the Diwan al-Mazhalim is to implement the decisions of foreign institutions, whether from courts or arbitration. A request to which a legalized decision is attached is conveyed through the Office of Law of the Foreign Minister, which is then conveyed to the Diwan. The decision sought must be final in nature and the country in which the court case was judged must have an agreement with Saudi Arabia to carry out such decisions. In certain cases, the cases are sometimes investigated by Saudi courts.

“In addition to the Syari‟at system of justice, which is carried out by the Ministry of Justice, the Saudi government also implements regulations and establishes institutions to handle cases which are not covered by the Syari‟at. This is designed to be in accordance with the principles of the Syari‟at and to compliment it, not to replace it. The result is a dual legal system, one which is wholly based on the Syari‟at and another which is autonomous in nature, but which is not free from the Shari’ah….“

 

 

According to the Law of Judicial Authority of 1975, the highest court in the land is the al-Majlis al-A’la li al-Qadha’ (High Court Council or Supreme Court). Under it there are two appeals courts in Makkah and an appeals court in Riyadh. Under the appeals courts are several first-degree courts, which consist of general courts and summary courts. See Figure 1.

 

Reforms to the Court System

On October 1, 2007, King „Abdullah bin „Abd al-„Aziz issued a Royal Decree about court reform. It is estimated that it will take two to three years to implement it. For this reform, the Government has prepared seven billion riyals or about 1.8 billion US dollars, which is being used for the construction of infrastructure and facilities, including the training of new judges and court

officials, among other things. The core is reform to the Syari‟at Court, which has been in operation for about thirty years, and the Council of Unjust Acts Court, which has been in operation for about 25 years.

Based on this 2007 Judiciary Law, the High Court Council will no longer serve as the Supreme Court, but as the administrative center of the courts. Among its duties are:

·         Issue regulations related to the duties of judges with the approval of the King.

·         Issue regulations for the supervision of the courts, the establishment of new courts, and (any) consolidation and elimination of courts.

·         Determine the areas of jurisdiction and formation of council teams.

·         Appoint the heads of the appeal courts.

·         Issue regulations about the function and authority of the heads of courts and their assistants.

·         Issue regulations about the methods of selecting judges. Regulate the duties of judge aides, and other matters.

Based on these new regulations, the hierarchy of the Syari‟at Court is split into three levels. The first is the High Court as the Supreme Court. The second is the Courts of Appeals, which consists of the 1. Civil Circuit (Courts), the 2. Criminal Circuits, the 3. Personal Status (Family Law) Circuits, the 4. Commerce Circuits, and the 5. Labor Circuits. The third is the First Degree Courts, which consist of: the 1. General Courts, 2. Criminal Courts, 3. Personal Status Courts, 4. Commerce Courts, and 5. Labor Courts. This resembles the court system currently found in Indonesia. See Figure 2:

Meanwhile, according to the new regulations, the Council of Unjust Acts Court becomes the Board of Administrative Court, which has a hierarchy similar to that of the Syari‟at Court, which consists of the High Administrative Court, Administrative Court of Appeals, and the First Level Administrative Courts. The First Level and Appeals Administrative Courts consist of: 1. Disciplinary Circuits, 2. Administrative Circuit, 3. Subsidiary Circuits, and 4. Other Specialized Circuits. See Figure 3: 

CLOSING

Saudi Arabia, which is mostly sandy desert, consists of various ethnic groups or tribes. In the pre-Islamic period, these groups would always vie for power. With the arrival of Islam, the conflict between these groups could be reduced. Later, at the start of the eighteenth century, Muhammad Sa‟ud, who represented the tribal traditions, tried to create a new tradition together with Muhammad „Abd al-Wahhab, who represented the religious tradition. This close relationship between an ethnic and religious leader remains the defining characteristic of the Kingdom of Saudi Arabia to this day.

The combination of these two traditions is also evident in the court system of Saudi Arabia. In essence disputes are settled based on seniority, consultation, and Islamic Shari‟ah. The country‟s system of courts has changed over time, but Saudi traditions are still evident in the unchanging face of the courts and prevailing law, namely Islamic Shari‟ah. The system of courts in Saudi Arabia today is a form of the development of Islamic courts in modern times which is based on the knowledge inherited from Prophet Muhammad, peace be upon him, with adjustments made for local conditions.

In the court reforms which began in 2007, Saudi Arabia made a strong effort to create a modern judiciary which is able to meet the challenges of the times while not becoming detached from tradition and Islamic Shari’ah. The success or failure of this endeavor will be seen in the next few decades.