Legal system of Saudi Arabia
Encyclopedia
The legal system of Saudi Arabia is based on Sharia
, Islam
ic law derived from the Qu'ran and the Sunnah
(the traditions) of the Prophet Muhammad. The sources of Sharia also include Islamic scholarly consensus
developed after Muhammad's death and analogical reasoning by Muslim judges
. Its interpretation by judges in Saudi Arabia
is influenced by the medieval texts of the literalist Hanbali
school of Islamic jurisprudence
. Uniquely in the Muslim world, Sharia has been adopted by Saudi Arabia
in an uncodified form. This, and the lack of judicial precedent, has resulted in considerable uncertainty in the scope and content of the country's laws. The government therefore announced its intention to codify Sharia in 2010. Sharia has also been supplemented by regulations issued by royal decree covering modern issues such as intellectual property
and corporate law
. Nevertheless, Sharia remains the primary source of law, especially in areas such as criminal
, family
, commercial
and contract law, and the Qu'ran and the Sunnah are declared to be the country's constitution.
The current Saudi court system was created by King Abdul Aziz, who founded the Kingdom of Saudi Arabia
in 1932, and was introduced to the country in stages between 1927 and 1960. It comprises general and summary Sharia courts, with some administrative tribunals to deal with disputes on specific modern regulations. Courts in Saudi Arabia observe few formalities and the country's first criminal procedure
code, issued in 2001, has been largely ignored. Decisions are made without juries and usually by a single judge. King Abdullah
, in 2007, introduced a number of significant judicial reforms, although they are yet to be fully implemented.
Criminal law punishments in Saudi Arabia include public beheading, stoning, amputation and lashing. Serious criminal offences include not only internationally recognized crimes such as murder, rape, theft and robbery, but also apostasy
, adultery, witchcraft and sorcery. In addition to the regular police force, Saudi Arabia has a secret police, the Mubahith
, and "religious" police, the Mutawa. The latter enforces Islamic social and moral norms. Western-based human rights organizations, such as Amnesty International
and Human Rights Watch
, have criticized the activities of both the Mubahith and the Mutawa, as well as a number of other aspects of human rights in Saudi Arabia. These include the number of executions, the range of offences which are subject to the death penalty, the lack of safeguards for the accused in the criminal justice system, the treatment of homosexuals, the use of torture, the lack of religious freedom and the highly disadvantaged position of women.
(or Islam
ic law) is the primary source of law in modern Saudi Arabia and is derived from the teachings of the Qu'ran and the Sunnah
(the traditions of Muhammad). It was developed gradually by Muslim judges and scholars between the seventh and tenth centuries. From the time of the Abbasid caliphate in the 8th century, the developing Sharia was accepted as the basis of law in the towns of the Muslim world, including the Arabian peninsula
, and upheld by local rulers, eclipsing urf
(or pre-Islamic local customary law). In the rural areas, Urf continued to be predominant for some time, and, for instance, was the main source of law among the bedouin
of Nejd in central Arabia until the early 20th century.
By the 11th century, the Muslim world had developed four major Sunni schools of Islamic jurisprudence (or fiqh
), each with its own interpretations of Sharia: Hanbali
, Maliki
, Shafi and Hanafi
. In Arabia, a preference for the Hanbali school was advocated by the Wahhabi movement, founded in the 18th century. Wahhabism, a strict form of Sunni Islam, was supported by the Saudi royal family (the Al Saud
) and is now dominant in Saudi Arabia. From the 18th century, the Hanbali school therefore predominated in Nejd and central Arabia, the heartland of Wahhabi Islam. In the more cosmopolitan Hejaz
, in the west of the peninsula, both the Hanafi and Shafi schools predominated.
Similarly, different court systems existed. In Nejd, there was a simple system of single judges for each of the major towns. The judge was appointed by the local governor, with whom he worked closely to dispose of cases. In the Hejaz, there was a more sophisticated system, with courts comprising panels of judges. In 1925, Abdul Aziz Al Saud
of Nejd conquered the Hejaz and united it with his existing territories to form the Kingdom of Saudi Arabia in 1932. In 1927, the king introduced a new court system to the Hejaz comprising general and summary courts and ordered that Hanbali fiqh should be used. However, Nejd's traditional system of judges was left in place in the face of conservative opposition from the Nejd religious establishment.
After becoming familiar with the Hejaz court system in the following decades, the religious establishment allowed its introduction to the rest of the country between 1957 and 1960. Additionally, from the 1930s, Abdul Aziz created government tribunals or "committees" to adjudicate in areas covered by royal decrees such as commercial or labor law. The system of Sharia courts and government tribunals created by Abdul Aziz largely remained in place until the 2007 judiciary reforms (see below). Until 1970, the judiciary was the responsibility of the Grand Mufti
, the country's most senior religious authority. When the incumbent Grand Mufti died in 1969, however, the then king, Faisal
decided not to appoint a successor and took the opportunity to transfer responsibility to the newly established Ministry of Justice.
The Shia community of the Eastern province
have a separate legal tradition. Although they follow Sharia, they apply the Shia Jafari
school of jurisprudence to it. In 1913, when Abdul Aziz conquered the area, he granted the Shias a separate judiciary for dealing with religious and family law cases: one judge in Qatif
, and one in Al-Hasa
. This remained the position, with the two judges ministering to a population of around two million, until 2005 when the number of judges was increased to seven. For all other areas of law, the Shia community are under the jurisdiction of the regular Sunni courts.
The primary source of law in Saudi Arabia is the Islamic Sharia
derived from the Qu'ran and the traditions of Muhammad contained in the Sunnah
. It also includes ijma
, or scholarly consensus on the meaning of the Qu'ran and the Sunnah developed after Muhammad's death, and Qiyas
, or analogical reasoning applied to the principles of the Qu'ran, Sunnah and ijma.
The legal system of Saudi Arabia is exceptional in the world of Islam in that Muslim countries that retain or adopt Sharia usually determine which parts of the Sharia are enforceable and codify (and thereby modernize) them. In Saudi Arabia, the state regards uncodified Sharia in its entirety as the law of the land and does not interfere with it. It is, therefore, unique not only compared to Western systems but also compared to other Muslim countries, and is the closest system to the form of Sharia adopted in the Muslim world at the advent of Islam.
The lack of codification of Sharia leads to considerable variation in its interpretation and application. Furthermore, there is no system of judicial precedent, although Saudi judges are expected to consult six medieval texts from the Hanbali
school of jurisprudence before reaching a decision. The Hanbali school is noted for its literalist interpretation of the Qu'ran and hadith
. If the answer is not found in the six Hanbali texts, the judge may then consult the jurisprudence of the other three main Sunni schools or apply his independent judgment and legal reasoning, referred to as ijtihad
.
Nevertheless, because the judge is empowered to disregard previous judgments (either his own or of other judges) and can apply his personal interpretation of Sharia to any particular case through ijtihad, divergent judgements arise even in apparently identical cases. There is a presumption against overturning a decision when it is based on ijtihad. This principle is crucial in two respects. Firstly, it concentrates the substance of the law in the hands of judges as, in consequence, there is a presumption that only a judge exercising ijtihad, rather than a king or a parliament, can determine God's law. Secondly, it renders a judge's decision practically immune to reversal on appeal. The role of ijtihad has led to calls for the Sharia to be codified to give clarity and remove uncertainty. As a result, in 2010, the Minister of Justice announced plans to implement a codification of Sharia law, although resistance from the religious establishment is reportedly delaying its implementation.
Royal decrees are the other main source of law but are referred to as regulations rather than laws to indicate that they are subordinate to the Sharia. Royal decrees supplement Sharia in areas such as labor, commercial and corporate law. Additionally, traditional tribal law and custom remain significant.
, the country's religious leadership. However, there are also extra-Sharia government tribunals which handle disputes relating to specific royal decrees. Final appeal from both Sharia courts and government tribunals is to the King and all courts and tribunals follow Sharia rules of evidence and procedure.
The Sharia courts have general jurisdiction over most civil and criminal cases. At present there are two types of courts of first instance
: general courts and summary courts dealing with lesser cases. Cases are adjudicated by single judges, except criminal cases if the potential sentence is death, amputation or stoning when there is a panel of three judges. There are also two courts for the Shia minority in the Eastern Province dealing with family and religious matters. Appellate courts sit in Mecca and Riyadh and review decisions for compliance with Sharia.
There are also non-Sharia courts covering specialized areas of law, the most important of which is the Board of Grievances. This court was originally created to deal with complaints against the government, but currently also has jurisdiction over commercial and some criminal cases, such as bribery and forgery, and acts as a court of appeal for a number of non-Sharia government tribunals. These administrative tribunals, referred to as "committees", deal with specific issues regulated by royal decrees, such as labor and commercial law.
The Saudi system of justice has been criticized for being slow, arcane, lacking in some of the safeguards of justice and unable to deal with the modern world. In 2007, King Abdullah
issued royal decrees with the aim of reforming the judiciary and creating a new court system. The reforms have yet to be implemented in full but, once they are, will include the creation of a Supreme Court and the transfer of the Board of Grievances' commercial and criminal jurisdictions to a restructured general court system. New specialist first instance courts will be established comprising general, criminal, personal status, commercial and labor courts. The Sharia courts will therefore lose their general jurisdiction to hear all cases and the work load of the government's administrative tribunals will be transferred to the new courts. Another important change is the establishment of appeal courts for each province. It has been claimed that the reforms will establish a system for codifying Sharia and incorporating the principle of judicial precedent into court practice.
The capabilities and reactionary nature of the judges have been criticized. The main complaint reportedly made by Saudis privately is that judges, who have wide discretion in interpreting the Sharia, have no knowledge, and are often contemptuous, of the modern world. Reported examples of judges' attitudes include rulings banning such things as the children’s game Pokémon
, telephones that play recorded music, and sending flowers to hospital patients. Saudi judges come from a narrow recruitment pool. By one estimate, 80% are from Al-Qassim province, the conservative religious heartland of Saudi Arabia in the center of the country. Senior judges will only allow like-minded graduates of select religious institutes to join the judiciary and will remove judges that stray away from rigidly conservative judgments.
In 2009, the King made a number of significant changes to the judiciary's personnel at the most senior level by bringing in a younger generation. For example, as well as appointing a new Minister of Justice, a new chairman of the Supreme Judicial Council was appointed. The outgoing chairman was known to oppose the codification of Sharia. The king also appointed a new head of the Board of Grievances and Abdelrahman al-Kinya as the first chief justice of the new Supreme Court.
, deals with domestic security and counter-intelligence. It runs the `Ulaysha Prison
in Riyadh
, where it holds its prisoners. The United Nations' Working Group on Arbitrary Detention
has objected to arbitrary detention by the Mubahith at `Ulaysha.
The religious police, or mutawa (or Mutaween
, their official name being Committee for the Promotion of Virtue and the Prevention of Vice
) enforce Islamic codes of behavior. Numbering about 20,000 men untrained in law enforcement, the mutawa ensure that there is strict separation of the sexes in public, that businesses close at prayer time, pressure women to wear traditional dress and, in some areas, prevent them driving cars. Often accompanied by a police escort, the mutawa can order the detention and arrest of "violators". Criticism of the mutawa by Saudis has grown since 2002, when 15 schoolgirls died in a fire at their school in Mecca after the mutawa allegedly prevented male rescuers from entering because the girls were not veiled.
, and has no legally binding written constitution. However, in 1992, the Basic Law of Saudi Arabia
was adopted by royal decree. Although it is insufficiently specific to be considered a constitution, the Basic Law does outline the responsibilities and processes of the governing institutions. It declares that the king must comply with Sharia
(that is, Islamic law) and that the Quran and the Sunna
(the traditions of Muhammad) are the country's constitution. Interpretation of the Quran and the Sunna remains necessary, and this is carried out by the ulema
, the Saudi religious establishment.
The Basic Law further states:
, in a 2008 report, noted that judges were either ignorant of the criminal procedure code or were aware of it but routinely ignored the code.
Criminal law is govered by Sharia and comprises three categories: hudud
(fixed Quranic punishments for specific crimes), Qisas
(eye-for-an-eye retaliatory punishments), and Tazir
, a general category. Hudud crimes are the most serious and include theft, robbery, blasphemy, apostasy, adultery, sodomy and fornication. Qisas crimes include murder or any crime involving bodily harm. Tazir represents most cases, many of which are defined by national regulations such as bribery, trafficking, and drug abuse. The most common punishment for a Tazir offence is lashing.
A conviction requires proof in one of three ways. The first is an uncoerced confession. Alternatively, the testimony of two male witnesses can convict (four in the case of adultery), unless it is a hudud crime, in which case a confession is also required. Women's evidence normally carries half the weight of men in Sharia courts, however in criminal trials women's testimony is not allowed at all. Testimony from non-Muslims or Muslims whose doctrines are considered unacceptable (for example, Shia) may be discounted. Lastly, an affirmation or denial by oath can be required. Giving an oath is taken particularly seriously in a religious society such as Saudi Arabia's, and a refusal to take an oath will be taken as an admission of guilt resulting in conviction.
The Saudi courts impose a number of severe physical punishments. The death penalty can be imposed for a wide range of offences including murder, rape, armed robbery, repeated drug use, apostasy
, adultery, witchcraft and sorcery and can be carried out by beheading with a sword, stoning
or firing squad, followed by crucifixion. The 345 reported executions between 2007 and 2010 were all carried out by public beheading. The last reported execution for sorcery took place in 2007 and three subsequent convictions for witchcraft did not result in execution. There were no reports of stoning between 2007 and 2010, but between 1981 and 1992 there were four cases of execution by stoning reported.
Although repeated theft can be punishable by amputation of the right hand and aggravated theft by the cross-amputation of a hand and a foot, only one instance of judicial amputation was reported between 2007 and 2010. Homosexual acts are punishable by flogging, imprisonment or death. Lashings are a common form of punishment and are often imposed for offences against religion and public morality such as drinking alcohol and neglect of prayer and fasting obligations.
Retaliatory punishments, or Qisas
, are practised: for instance, an eye can be surgically removed at the insistence of a victim who lost his own eye. This occurred in a case reported in 2000. Families of someone unlawfully killed can choose between demanding the death penalty or granting clemency in return for a payment of diyya
, or blood money, by the perpetrator. There has been a growing trend of exorbitant blood-money demands, for example a sum of $11 million was reported as being recently demanded. Saudi officials and religious figures have criticized this trend and said that the practise of diyya has become corrupted.
Polygamy
is permitted for men but is limited to four wives at any one time. There is evidence that its practise has increased, particularly among the educated Hejaz
i elite, as a result of oil wealth. The government has promoted polygamy as part of a return to "Islamic values" program. In 2001, the Grand Mufti
(the highest religious authority) issued a fatwa
, or opinion, calling upon Saudi women to accept polygamy as part of the Islamic package and declaring that polygamy was necessary "to fight against...the growing epidemic of spinsterhood". There is no minimum age for marriage in Saudi Arabia and the Grand Mufti reportedly said in 2009 that girls of the age of 10 or 12 were marriageable.
Men have a unlilateral right to divorce their wives (talaq
) without needing any legal justification. The divorce is effective immediately. The divorced wife can claim financial support for a period of four months and ten days afterwards. A woman can only obtain a divorce with the consent of her husband or judicially if her husband has harmed her. In practice, it is very difficult for a Saudi woman to obtain a judicial divorce. The divorce rate is high, with 50% of marriages being dissolved. In the event of divorce, fathers have automatic custody of sons from the age of 7 and daughters from the age of 9. The right for men to marry up to four wives, combined with their ability to divorce a wife at anytime without cause, can translate to unlimited polygamy. King Abdul Aziz
, the founder of the country, reportedly admitted to marrying over two hundred women. However, his polygamy was considered extraordinary even by Saudi Arabian standards.
With regard to the law of inheritance, the Quran specifies that fixed portions of the deceased's estate must be left to the so-called Qu'ranic heirs. Generally, female heirs receive half the portion of male heirs. A Sunni Muslim can bequeath a maximum of a third of his property to non-Qu'ranic heirs. The residue
is divided between agnatic heirs.
Business and commerce is governed by Sharia. Commercial jurisdiction rests with the Board of Grievances composed of Sharia-trained judges. For foreign investors, uncertainties around the content of commercial law, because of the Sharia aspect, constitutes a disincentive to invest in Saudi Arabia. As it is governed by Sharia, contract law is not codified. Within the general limitations of Sharia, it allows considerable freedom for the parties to agree contract terms. However, contracts involving speculation or the payment of interest are prohibited and are not enforceable. If a contract is breached, Saudi courts will only award compensation for proven direct damage. Claims for loss of profit or opportunity will not be allowed as these would constitute speculation, which is not permitted under Sharia.
Specific modern aspects of commercial law, for example, commercial paper and securities, intellectual property
, and corporate law are governed by modern regulations, and specialist government tribunals ("committees") deal with related disputes. The government recently revised its Intellectual Property laws to meet World Trade Organization
standards, as part of its admission to the WTO in 2004. Because of a lack of resources, when the new patent
law went into effect in 2004, the Saudi Patent office had only registered 90 patents since 1989, with a back-log of 9,000 applications. It is believed the back-log has now been reduced.
The Saudi government is also putting greater resources into combating piracy of software, printed material, recordings and videos, however pirated material is still widely available. Enforcement efforts have been supported by a fatwa
, or religious ruling, that software piracy is forbidden under Islam. Saudi Arabia had been on the Special 301 Watchlist
, the U.S.'s running log of countries considered to inadequately regulate or enforce intellectual property rights, but was removed in 2010.
Saudi law recognizes only corporate or partnership entities established under Sharia or the Saudi Company Law of 1982. A contract with any other type of company will be void and the persons who made the contract in the company's name will be personally liable for it. Under Sharia, corporations can take a number of forms, but the most common in Saudi Arabia is Sharikat Modarabah where some partners contribute assets and others contribute expertise. In addition, the Company Law (which is based on Egyptian company law) identifies eight permissible forms of corporate entity including joint ventures, and limited liability partnerships.
and Mecca
.
Saudi Arabia has three categories of land: developed land (amir), undeveloped land (mawat), and "protective zones" (harim). Developed land comprises the built environment of towns and villages and agriculturally developed land, and can be bought, sold and inherited by individuals. The undeveloped land comprises rough grazing, pasture and wilderness. Rough grazing and pasture is owned in common and everyone has equal rights to its use. The wilderness is owned by the state and may be open to everyone unless specific restrictions are imposed. Harim land is a protective buffer between the owned land and the undeveloped land, and is defined, in the case of a town, as the area that can be reached and returned from in a day for the purposes of collecting fuel and pasturing livestock.
Saudi law utilizes the Waqf
, which is a form of land ownership whereby a Muslim can transfer property to a foundation for long-term religious or charitable purposes. The property cannot then be alienated or transferred.
Saudi Arabia's vast oil reserves are owned by the Saudi government, in effect the Saudi royal family. Article 14 of the Basic Law
states:
The Ministry of Petroleum and Mineral Resources is responsible for general strategy in the oil and gas sectors and for monitoring the state-owned oil company, Saudi Aramco
. The oil, gas and refining industries in Saudi Arabia are controlled by Saudi Aramco, which has a near monopoly in these areas. It is the world's biggest oil producer, the middle east's biggest company and is considered to be indisputably the most important energy company in the world.
Currently, the electricity industry is in the hands of the 75% state-owned Saudi Electric Company, but plans have been announced to privatize the industry.
Between 1996 and 2000, Saudi Arabia acceded to four UN human rights conventions and, in 2004, the government approved the establishment of the National Society for Human Rights
(NSHR), staffed by government employees, to monitor their implementation. To date, the activities of the NSHR have been limited and doubts remain over its neutrality and independence. Saudi Arabia was one of only eight countries that did not accept the UN's Universal Declaration of Human Rights
when it was launched in 1948. Now, only Saudi Arabia remains openly opposed to the declaration. In response to the continuing criticism of its human rights record, the Saudi government points to the special Islamic character of the country, and asserts that this justifies a different social and political order.
2010 Global Gender Gap Report
ranked Saudi Arabia 129th out of 134 countries for gender parity.
Every adult woman has to have a close male relative as her "guardian". As a result, Human Rights Watch has described the position of Saudi women as no different to being a minor
, with little authority over their own lives. The guardian is entitled to make a number of critical decisions on a woman's behalf. These include giving approval for the woman to travel, to hold some types of business licenses, to study at a university or college and to work if the type of business is not "deemed appropriate for a woman." Even where a guardian’s approval is not legally required, some officials will still ask for it. Women also face discrimination in the courts, where the testimony of one man equals that of two women, and in family and inheritance law (see above).
Cultural norms impose restrictions on women when in public, and these are enforced by the mutawa. They include requiring women to sit in separate specially designated family sections in restaurants, to wear an abaya
(a loose-fitting, full-length black cloak covering the entire body) and to conceal their hair. Women also risk arrest for riding in a vehicle driven by a male who is not an employee or a close male relative. Although there is no written ban on women driving cars, a Saudi driving license is required by law and these are not issued to women. Thus, it is effectively illegal for women to drive, and the ban is enforced by the mutawa.
's 2010 Democracy Index
, the Saudi government is the seventh most authoritarian regime from among the 167 countries rated. There is no legal protection of freedom of speech and Saudis are prohibited from publicly criticizing the government, Islam, or the royal family. The Saudi press is strictly censored and articles on Saudi dissidents are banned. Saudi censorship is considered among the most restrictive in the world and the country blocks broad swathes of the Internet. In the wake of the protests in Saudi Arabia in early 2011
, the government banned all public demonstrations and marches.
and Human Rights Watch
have condemned both the Saudi criminal justice system and its severe punishments. However, most Saudis reportedly support the system and say that it maintains a low crime rate.
Human Rights Watch, in their 2008 report on Saudi Arabian criminal justice system, noted that the criminal procedure code introduced in 2002 lacked some basic protections but, as mentiond above, had been ignored by judges in any case. Those arrested are often not informed of the crime of which they are accused or given access to a lawyer and are subject to abusive treatment and torture if they do not confess. At trial, there is a presumption of guilt and the accused is often unable to examine witnesses and evidence or present a legal defense. Most trials are held in secret. The physical punishments imposed by Saudi courts, such as beheading, stoning
, amputation and lashing, and the number of executions have also been strongly criticized.
(apostasy
) carries the death penalty, although there have been no confirmed reports of executions for apostasy in recent years. Proselytizing by non-Muslims is illegal, and the last Christian priest was expelled from Saudi Arabia in 1985. Compensation in court cases discriminates against non-Muslims: once fault is determined, a Muslim receives all of the amount of compensation determined, a Jew or Christian half, and all others a sixteenth.
According to Human Rights Watch, the Shia minority face systematic discrimination from the Saudi government in education, the justice system and especially religious freedom. Restrictions are imposed on the public celebration of Shia festivals such as Ashura
and on the Shia taking part in communal public worship.
were beheaded. There have, however, reportedly been raids on "gay parties" and men have been arrested for "behaving like women". The usual penalties inflicted have been limited to flogging and imprisonment.
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
, Islam
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
ic law derived from the Qu'ran and the Sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
(the traditions) of the Prophet Muhammad. The sources of Sharia also include Islamic scholarly consensus
Ijma
Ijmāʿ is an Arabic term referring to the consensus of the Muslim community. Various schools of thought within Islamic jurisprudence may define this consensus as that of the first generation of Muslims only; the consensus of the first three generations of Muslims; the consensus of the jurists...
developed after Muhammad's death and analogical reasoning by Muslim judges
Qiyas
In Islamic jurisprudence, qiyās is the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction to a new circumstance and create a new injunction...
. Its interpretation by judges in Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
is influenced by the medieval texts of the literalist Hanbali
Hanbali
The Hanbali school is one the schools of Fiqh or religious law within Sunni Islam. The jurisprudence school traces back to Imam Ahmad ibn Hanbal but was institutionalized by his students. Hanbali jurisprudence is considered very strict and conservative, especially regarding questions of dogma...
school of Islamic jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
. Uniquely in the Muslim world, Sharia has been adopted by Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
in an uncodified form. This, and the lack of judicial precedent, has resulted in considerable uncertainty in the scope and content of the country's laws. The government therefore announced its intention to codify Sharia in 2010. Sharia has also been supplemented by regulations issued by royal decree covering modern issues such as intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
and corporate law
Corporate law
Corporate law is the study of how shareholders, directors, employees, creditors, and other stakeholders such as consumers, the community and the environment interact with one another. Corporate law is a part of a broader companies law...
. Nevertheless, Sharia remains the primary source of law, especially in areas such as criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, family
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, commercial
Commercial law
Commercial law is the body of law that governs business and commercial transactions...
and contract law, and the Qu'ran and the Sunnah are declared to be the country's constitution.
The current Saudi court system was created by King Abdul Aziz, who founded the Kingdom of Saudi Arabia
Unification of Saudi Arabia
The unification of Saudi Arabia was the process by which the various tribes, sheikhdoms, and emirates of most of the Arabian Peninsula were consolidated under the control of the House of Saud, or Al Saud, between 1902 and 1932, when the modern-day Kingdom of Saudi Arabia was proclaimed...
in 1932, and was introduced to the country in stages between 1927 and 1960. It comprises general and summary Sharia courts, with some administrative tribunals to deal with disputes on specific modern regulations. Courts in Saudi Arabia observe few formalities and the country's first criminal procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
code, issued in 2001, has been largely ignored. Decisions are made without juries and usually by a single judge. King Abdullah
Abdullah of Saudi Arabia
Abdullah bin Abdul-Aziz Al Saud, Custodian of the Two Holy Mosques, is the King of Saudi Arabia. He succeeded to the throne on 1 August 2005 upon the death of his half-brother, King Fahd. When Crown Prince, he governed Saudi Arabia as regent from 1998 to 2005...
, in 2007, introduced a number of significant judicial reforms, although they are yet to be fully implemented.
Criminal law punishments in Saudi Arabia include public beheading, stoning, amputation and lashing. Serious criminal offences include not only internationally recognized crimes such as murder, rape, theft and robbery, but also apostasy
Apostasy
Apostasy , 'a defection or revolt', from ἀπό, apo, 'away, apart', στάσις, stasis, 'stand, 'standing') is the formal disaffiliation from or abandonment or renunciation of a religion by a person. One who commits apostasy is known as an apostate. These terms have a pejorative implication in everyday...
, adultery, witchcraft and sorcery. In addition to the regular police force, Saudi Arabia has a secret police, the Mubahith
Mabahith
The Mabahith , also spelled Mabaheth, is the secret police agency of the Ministry of Interior in Saudi Arabia.According to Human Rights Watch, the Mabahith "monitors suspected political opponents and others, targets individuals for arrest, and interrogates detainees...
, and "religious" police, the Mutawa. The latter enforces Islamic social and moral norms. Western-based human rights organizations, such as Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
and Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
, have criticized the activities of both the Mubahith and the Mutawa, as well as a number of other aspects of human rights in Saudi Arabia. These include the number of executions, the range of offences which are subject to the death penalty, the lack of safeguards for the accused in the criminal justice system, the treatment of homosexuals, the use of torture, the lack of religious freedom and the highly disadvantaged position of women.
History
ShariaSharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
(or Islam
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
ic law) is the primary source of law in modern Saudi Arabia and is derived from the teachings of the Qu'ran and the Sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
(the traditions of Muhammad). It was developed gradually by Muslim judges and scholars between the seventh and tenth centuries. From the time of the Abbasid caliphate in the 8th century, the developing Sharia was accepted as the basis of law in the towns of the Muslim world, including the Arabian peninsula
Arabian Peninsula
The Arabian Peninsula is a land mass situated north-east of Africa. Also known as Arabia or the Arabian subcontinent, it is the world's largest peninsula and covers 3,237,500 km2...
, and upheld by local rulers, eclipsing urf
Urf
Urf العرف is an Arabic Islamic term referring to the custom, or 'knowledge', of a given society. To be recognized in an Islamic society, Urf must be compatible with Sharia law...
(or pre-Islamic local customary law). In the rural areas, Urf continued to be predominant for some time, and, for instance, was the main source of law among the bedouin
Bedouin
The Bedouin are a part of a predominantly desert-dwelling Arab ethnic group traditionally divided into tribes or clans, known in Arabic as ..-Etymology:...
of Nejd in central Arabia until the early 20th century.
By the 11th century, the Muslim world had developed four major Sunni schools of Islamic jurisprudence (or fiqh
Fiqh
Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....
), each with its own interpretations of Sharia: Hanbali
Hanbali
The Hanbali school is one the schools of Fiqh or religious law within Sunni Islam. The jurisprudence school traces back to Imam Ahmad ibn Hanbal but was institutionalized by his students. Hanbali jurisprudence is considered very strict and conservative, especially regarding questions of dogma...
, Maliki
Maliki
The ' madhhab is one of the schools of Fiqh or religious law within Sunni Islam. It is the second-largest of the four schools, followed by approximately 25% of Muslims, mostly in North Africa, West Africa, the United Arab Emirates, Kuwait, and in some parts of Saudi Arabia...
, Shafi and Hanafi
Hanafi
The Hanafi school is one of the four Madhhab in jurisprudence within Sunni Islam. The Hanafi madhhab is named after the Persian scholar Abu Hanifa an-Nu‘man ibn Thābit , a Tabi‘i whose legal views were preserved primarily by his two most important disciples, Abu Yusuf and Muhammad al-Shaybani...
. In Arabia, a preference for the Hanbali school was advocated by the Wahhabi movement, founded in the 18th century. Wahhabism, a strict form of Sunni Islam, was supported by the Saudi royal family (the Al Saud
House of Saud
The House of Saud , also called the Al Saud, is the ruling royal family of Saudi Arabia and one of the wealthiest and most powerful dynasties in the world. The family holds thousands of members...
) and is now dominant in Saudi Arabia. From the 18th century, the Hanbali school therefore predominated in Nejd and central Arabia, the heartland of Wahhabi Islam. In the more cosmopolitan Hejaz
Hejaz
al-Hejaz, also Hijaz is a region in the west of present-day Saudi Arabia. Defined primarily by its western border on the Red Sea, it extends from Haql on the Gulf of Aqaba to Jizan. Its main city is Jeddah, but it is probably better known for the Islamic holy cities of Mecca and Medina...
, in the west of the peninsula, both the Hanafi and Shafi schools predominated.
Similarly, different court systems existed. In Nejd, there was a simple system of single judges for each of the major towns. The judge was appointed by the local governor, with whom he worked closely to dispose of cases. In the Hejaz, there was a more sophisticated system, with courts comprising panels of judges. In 1925, Abdul Aziz Al Saud
Ibn Saud of Saudi Arabia
King Abdul-Aziz of Saudi Arabia was the first monarch of the Third Saudi State known as Saudi Arabia. He was commonly referred to as Ibn Saud....
of Nejd conquered the Hejaz and united it with his existing territories to form the Kingdom of Saudi Arabia in 1932. In 1927, the king introduced a new court system to the Hejaz comprising general and summary courts and ordered that Hanbali fiqh should be used. However, Nejd's traditional system of judges was left in place in the face of conservative opposition from the Nejd religious establishment.
After becoming familiar with the Hejaz court system in the following decades, the religious establishment allowed its introduction to the rest of the country between 1957 and 1960. Additionally, from the 1930s, Abdul Aziz created government tribunals or "committees" to adjudicate in areas covered by royal decrees such as commercial or labor law. The system of Sharia courts and government tribunals created by Abdul Aziz largely remained in place until the 2007 judiciary reforms (see below). Until 1970, the judiciary was the responsibility of the Grand Mufti
Grand Mufti
The title of Grand Mufti refers to the highest official of religious law in a Sunni or Ibadi Muslim country. The Grand Mufti issues legal opinions and edicts, fatwā, on interpretations of Islamic law for private clients or to assist judges in deciding cases...
, the country's most senior religious authority. When the incumbent Grand Mufti died in 1969, however, the then king, Faisal
Faisal of Saudi Arabia
Faisal bin Abdul-Aziz Al Saud was King of Saudi Arabia from 1964 to 1975. As king, he is credited with rescuing the country's finances and implementing a policy of modernization and reform, while his main foreign policy themes were pan-Islamic Nationalism, anti-Communism, and pro-Palestinian...
decided not to appoint a successor and took the opportunity to transfer responsibility to the newly established Ministry of Justice.
The Shia community of the Eastern province
Shia Islam in Saudi Arabia
Approximately 15 percent of citizens in Saudi Arabia are Shia Muslims, most of whom belong to the Baharna Twelver Shia community living in the Eastern Province, with the largest concentrations in Qatif, Al-Hasa, and Dammam...
have a separate legal tradition. Although they follow Sharia, they apply the Shia Jafari
Ja'fari jurisprudence
Jaʿfarī school of thought, Ja`farite School, Jaʿfarī jurisprudence or Jaʿfarī Fiqh is the school of jurisprudence of most Shi'a Muslims, derived from the name of Jaʿfar as-Ṣādiq, the 6th Shi'a Imam...
school of jurisprudence to it. In 1913, when Abdul Aziz conquered the area, he granted the Shias a separate judiciary for dealing with religious and family law cases: one judge in Qatif
Qatif
Qatif or Al-Qatif is a governorate and urban area located in Eastern Province, Saudi Arabia. It extends from Ras Tanura and Jubail in the north to Dammam in the south, and from the Persian Gulf in the east to King Fahd International Airport in the west...
, and one in Al-Hasa
Al-Hasa
Al-Ahsa is the largest governorate in Saudi Arabia's Eastern Province, named after Al-Ahsa oasis. The name Al-Ahsa is also given to the biggest city in the region, Hofuf. In classic Arabic, Ahsa means the sound of water underground. It has one of the largest oases in the world with Date Palms of...
. This remained the position, with the two judges ministering to a population of around two million, until 2005 when the number of judges was increased to seven. For all other areas of law, the Shia community are under the jurisdiction of the regular Sunni courts.
Sources of law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
derived from the Qu'ran and the traditions of Muhammad contained in the Sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
. It also includes ijma
Ijma
Ijmāʿ is an Arabic term referring to the consensus of the Muslim community. Various schools of thought within Islamic jurisprudence may define this consensus as that of the first generation of Muslims only; the consensus of the first three generations of Muslims; the consensus of the jurists...
, or scholarly consensus on the meaning of the Qu'ran and the Sunnah developed after Muhammad's death, and Qiyas
Qiyas
In Islamic jurisprudence, qiyās is the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction to a new circumstance and create a new injunction...
, or analogical reasoning applied to the principles of the Qu'ran, Sunnah and ijma.
The legal system of Saudi Arabia is exceptional in the world of Islam in that Muslim countries that retain or adopt Sharia usually determine which parts of the Sharia are enforceable and codify (and thereby modernize) them. In Saudi Arabia, the state regards uncodified Sharia in its entirety as the law of the land and does not interfere with it. It is, therefore, unique not only compared to Western systems but also compared to other Muslim countries, and is the closest system to the form of Sharia adopted in the Muslim world at the advent of Islam.
The lack of codification of Sharia leads to considerable variation in its interpretation and application. Furthermore, there is no system of judicial precedent, although Saudi judges are expected to consult six medieval texts from the Hanbali
Hanbali
The Hanbali school is one the schools of Fiqh or religious law within Sunni Islam. The jurisprudence school traces back to Imam Ahmad ibn Hanbal but was institutionalized by his students. Hanbali jurisprudence is considered very strict and conservative, especially regarding questions of dogma...
school of jurisprudence before reaching a decision. The Hanbali school is noted for its literalist interpretation of the Qu'ran and hadith
Hadith
The term Hadīth is used to denote a saying or an act or tacit approval or criticism ascribed either validly or invalidly to the Islamic prophet Muhammad....
. If the answer is not found in the six Hanbali texts, the judge may then consult the jurisprudence of the other three main Sunni schools or apply his independent judgment and legal reasoning, referred to as ijtihad
Ijtihad
Ijtihad is the making of a decision in Islamic law by personal effort , independently of any school of jurisprudence . as opposed to taqlid, copying or obeying without question....
.
Nevertheless, because the judge is empowered to disregard previous judgments (either his own or of other judges) and can apply his personal interpretation of Sharia to any particular case through ijtihad, divergent judgements arise even in apparently identical cases. There is a presumption against overturning a decision when it is based on ijtihad. This principle is crucial in two respects. Firstly, it concentrates the substance of the law in the hands of judges as, in consequence, there is a presumption that only a judge exercising ijtihad, rather than a king or a parliament, can determine God's law. Secondly, it renders a judge's decision practically immune to reversal on appeal. The role of ijtihad has led to calls for the Sharia to be codified to give clarity and remove uncertainty. As a result, in 2010, the Minister of Justice announced plans to implement a codification of Sharia law, although resistance from the religious establishment is reportedly delaying its implementation.
Royal decrees are the other main source of law but are referred to as regulations rather than laws to indicate that they are subordinate to the Sharia. Royal decrees supplement Sharia in areas such as labor, commercial and corporate law. Additionally, traditional tribal law and custom remain significant.
The courts and the judiciary
The Sharia court system constitutes the basic judiciary of Saudi Arabia and its judges and lawyers form part of the ulemaUlema
Ulama , also spelt ulema, refers to the educated class of Muslim legal scholars engaged in the several fields of Islamic studies. They are best known as the arbiters of shari‘a law...
, the country's religious leadership. However, there are also extra-Sharia government tribunals which handle disputes relating to specific royal decrees. Final appeal from both Sharia courts and government tribunals is to the King and all courts and tribunals follow Sharia rules of evidence and procedure.
The Sharia courts have general jurisdiction over most civil and criminal cases. At present there are two types of courts of first instance
Court of first instance
A court of first instance is a trial court of original or primary jurisdiction.Specific courts called the Court of First Instance include:* European Court of First Instance, of the European Union* Court of First Instance...
: general courts and summary courts dealing with lesser cases. Cases are adjudicated by single judges, except criminal cases if the potential sentence is death, amputation or stoning when there is a panel of three judges. There are also two courts for the Shia minority in the Eastern Province dealing with family and religious matters. Appellate courts sit in Mecca and Riyadh and review decisions for compliance with Sharia.
There are also non-Sharia courts covering specialized areas of law, the most important of which is the Board of Grievances. This court was originally created to deal with complaints against the government, but currently also has jurisdiction over commercial and some criminal cases, such as bribery and forgery, and acts as a court of appeal for a number of non-Sharia government tribunals. These administrative tribunals, referred to as "committees", deal with specific issues regulated by royal decrees, such as labor and commercial law.
The Saudi system of justice has been criticized for being slow, arcane, lacking in some of the safeguards of justice and unable to deal with the modern world. In 2007, King Abdullah
Abdullah of Saudi Arabia
Abdullah bin Abdul-Aziz Al Saud, Custodian of the Two Holy Mosques, is the King of Saudi Arabia. He succeeded to the throne on 1 August 2005 upon the death of his half-brother, King Fahd. When Crown Prince, he governed Saudi Arabia as regent from 1998 to 2005...
issued royal decrees with the aim of reforming the judiciary and creating a new court system. The reforms have yet to be implemented in full but, once they are, will include the creation of a Supreme Court and the transfer of the Board of Grievances' commercial and criminal jurisdictions to a restructured general court system. New specialist first instance courts will be established comprising general, criminal, personal status, commercial and labor courts. The Sharia courts will therefore lose their general jurisdiction to hear all cases and the work load of the government's administrative tribunals will be transferred to the new courts. Another important change is the establishment of appeal courts for each province. It has been claimed that the reforms will establish a system for codifying Sharia and incorporating the principle of judicial precedent into court practice.
The capabilities and reactionary nature of the judges have been criticized. The main complaint reportedly made by Saudis privately is that judges, who have wide discretion in interpreting the Sharia, have no knowledge, and are often contemptuous, of the modern world. Reported examples of judges' attitudes include rulings banning such things as the children’s game Pokémon
Pokémon
is a media franchise published and owned by the video game company Nintendo and created by Satoshi Tajiri in 1996. Originally released as a pair of interlinkable Game Boy role-playing video games developed by Game Freak, Pokémon has since become the second most successful and lucrative video...
, telephones that play recorded music, and sending flowers to hospital patients. Saudi judges come from a narrow recruitment pool. By one estimate, 80% are from Al-Qassim province, the conservative religious heartland of Saudi Arabia in the center of the country. Senior judges will only allow like-minded graduates of select religious institutes to join the judiciary and will remove judges that stray away from rigidly conservative judgments.
In 2009, the King made a number of significant changes to the judiciary's personnel at the most senior level by bringing in a younger generation. For example, as well as appointing a new Minister of Justice, a new chairman of the Supreme Judicial Council was appointed. The outgoing chairman was known to oppose the codification of Sharia. The king also appointed a new head of the Board of Grievances and Abdelrahman al-Kinya as the first chief justice of the new Supreme Court.
Law enforcement
The police department of the Saudi Ministry of the Interior is divided into three forces: the regular police, secret police and the religious police. The Department of Public Safety is the official name of the regular police force and handles most day-to-day police activities. It is a highly centralized force and is usually headed by a member of the royal family. The secret police, or mubahithMabahith
The Mabahith , also spelled Mabaheth, is the secret police agency of the Ministry of Interior in Saudi Arabia.According to Human Rights Watch, the Mabahith "monitors suspected political opponents and others, targets individuals for arrest, and interrogates detainees...
, deals with domestic security and counter-intelligence. It runs the `Ulaysha Prison
`Ulaysha Prison
`Ulaysha Prison is a prison in Riyadh run by the Saudi Arabian secret police agency Mabahith for arbitrary detention...
in Riyadh
Riyadh
Riyadh is the capital and largest city of Saudi Arabia. It is also the capital of Riyadh Province, and belongs to the historical regions of Najd and Al-Yamama. It is situated in the center of the Arabian Peninsula on a large plateau, and is home to 5,254,560 people, and the urban center of a...
, where it holds its prisoners. The United Nations' Working Group on Arbitrary Detention
Working Group on Arbitrary Detention
The Working Group on Arbitrary Detention is a UN-mandated body of independent human rights experts that investigates cases of arbitrary arrest and detention that may be in violation of international human rights law....
has objected to arbitrary detention by the Mubahith at `Ulaysha.
The religious police, or mutawa (or Mutaween
Mutaween
The word mutaween most literally means "volunteers" in the Arabic language, and is commonly used as a casual term for the government-authorized or government-recognized religious police of Saudi Arabia....
, their official name being Committee for the Promotion of Virtue and the Prevention of Vice
Committee for the Promotion of Virtue and the Prevention of Vice (Saudi Arabia)
The Committee for the Promotion of Virtue and the Prevention of Vice or HAIA is the Saudi Arabian government bureaucracy employing "religious police" or mutaween to...
) enforce Islamic codes of behavior. Numbering about 20,000 men untrained in law enforcement, the mutawa ensure that there is strict separation of the sexes in public, that businesses close at prayer time, pressure women to wear traditional dress and, in some areas, prevent them driving cars. Often accompanied by a police escort, the mutawa can order the detention and arrest of "violators". Criticism of the mutawa by Saudis has grown since 2002, when 15 schoolgirls died in a fire at their school in Mecca after the mutawa allegedly prevented male rescuers from entering because the girls were not veiled.
Constitutional law
Saudi Arabia is an absolute monarchyAbsolute monarchy
Absolute monarchy is a monarchical form of government in which the monarch exercises ultimate governing authority as head of state and head of government, his or her power not being limited by a constitution or by the law. An absolute monarch thus wields unrestricted political power over the...
, and has no legally binding written constitution. However, in 1992, the Basic Law of Saudi Arabia
Basic Law of Saudi Arabia
The Basic Law of Saudi Arabia is a constitution-like charter divided into nine chapters, consisting of 83 articles...
was adopted by royal decree. Although it is insufficiently specific to be considered a constitution, the Basic Law does outline the responsibilities and processes of the governing institutions. It declares that the king must comply with Sharia
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
(that is, Islamic law) and that the Quran and the Sunna
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
(the traditions of Muhammad) are the country's constitution. Interpretation of the Quran and the Sunna remains necessary, and this is carried out by the ulema
Ulema
Ulama , also spelt ulema, refers to the educated class of Muslim legal scholars engaged in the several fields of Islamic studies. They are best known as the arbiters of shari‘a law...
, the Saudi religious establishment.
The Basic Law further states:
-
- Monarchy is the system of rule in the Kingdom of Saudi Arabia. Rulers of the country shall be from amongst the sons of the founder King Abdulaziz bin Abdulrahman Al-Faisal Al-SaudIbn Saud of Saudi ArabiaKing Abdul-Aziz of Saudi Arabia was the first monarch of the Third Saudi State known as Saudi Arabia. He was commonly referred to as Ibn Saud....
, and their descendants. The most upright among them shall receive allegiance according to Almighty God's Book and His Messenger's Sunna (Traditions)...Government in the Kingdom of Saudi Arabia derives its authority from the Book of God and the Sunna of the Prophet (PBUH), which are the ultimate sources of reference for this Law and the other laws of the State...Governance in the Kingdom of Saudi Arabia is based on justice, shuraShuraShura is an Arabic word for "consultation". The Quran and Muhammad encourage Muslims to decide their affairs in consultation with those who will be affected by that decision....
(consultation) and equality according to Islamic Sharia.
- Monarchy is the system of rule in the Kingdom of Saudi Arabia. Rulers of the country shall be from amongst the sons of the founder King Abdulaziz bin Abdulrahman Al-Faisal Al-Saud
Criminal law
There are no jury trials in Saudi Arabia and courts observe few formalities. The country's first criminal procedure code was introduced in 2001 and contains provisions borrowed from Egyptian and French law. Human Rights WatchHuman Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
, in a 2008 report, noted that judges were either ignorant of the criminal procedure code or were aware of it but routinely ignored the code.
Criminal law is govered by Sharia and comprises three categories: hudud
Hudud
Hudud is the word often used in Islamic literature for the bounds of acceptable behaviour and the punishments for serious crimes...
(fixed Quranic punishments for specific crimes), Qisas
Qisas
Qisas is an Islamic term meaning "retaliation," and follows the principle of an eye for an eye, or lex talionis, first set forth by Hammurabi, and subsequently included in the Old Testament and later legal codes...
(eye-for-an-eye retaliatory punishments), and Tazir
Tazir
In Islamic Law, tazir refers to punishment, usually corporal, that can be administered at the discretion of the judge, called a Qadi, Kadi, as opposed to the hudud...
, a general category. Hudud crimes are the most serious and include theft, robbery, blasphemy, apostasy, adultery, sodomy and fornication. Qisas crimes include murder or any crime involving bodily harm. Tazir represents most cases, many of which are defined by national regulations such as bribery, trafficking, and drug abuse. The most common punishment for a Tazir offence is lashing.
A conviction requires proof in one of three ways. The first is an uncoerced confession. Alternatively, the testimony of two male witnesses can convict (four in the case of adultery), unless it is a hudud crime, in which case a confession is also required. Women's evidence normally carries half the weight of men in Sharia courts, however in criminal trials women's testimony is not allowed at all. Testimony from non-Muslims or Muslims whose doctrines are considered unacceptable (for example, Shia) may be discounted. Lastly, an affirmation or denial by oath can be required. Giving an oath is taken particularly seriously in a religious society such as Saudi Arabia's, and a refusal to take an oath will be taken as an admission of guilt resulting in conviction.
Apostasy
Apostasy , 'a defection or revolt', from ἀπό, apo, 'away, apart', στάσις, stasis, 'stand, 'standing') is the formal disaffiliation from or abandonment or renunciation of a religion by a person. One who commits apostasy is known as an apostate. These terms have a pejorative implication in everyday...
, adultery, witchcraft and sorcery and can be carried out by beheading with a sword, stoning
Stoning
Stoning, or lapidation, is a form of capital punishment whereby a group throws stones at a person until the person dies. No individual among the group can be identified as the one who kills the subject, yet everyone involved plainly bears some degree of moral culpability. This is in contrast to the...
or firing squad, followed by crucifixion. The 345 reported executions between 2007 and 2010 were all carried out by public beheading. The last reported execution for sorcery took place in 2007 and three subsequent convictions for witchcraft did not result in execution. There were no reports of stoning between 2007 and 2010, but between 1981 and 1992 there were four cases of execution by stoning reported.
Although repeated theft can be punishable by amputation of the right hand and aggravated theft by the cross-amputation of a hand and a foot, only one instance of judicial amputation was reported between 2007 and 2010. Homosexual acts are punishable by flogging, imprisonment or death. Lashings are a common form of punishment and are often imposed for offences against religion and public morality such as drinking alcohol and neglect of prayer and fasting obligations.
Retaliatory punishments, or Qisas
Qisas
Qisas is an Islamic term meaning "retaliation," and follows the principle of an eye for an eye, or lex talionis, first set forth by Hammurabi, and subsequently included in the Old Testament and later legal codes...
, are practised: for instance, an eye can be surgically removed at the insistence of a victim who lost his own eye. This occurred in a case reported in 2000. Families of someone unlawfully killed can choose between demanding the death penalty or granting clemency in return for a payment of diyya
Diyya
Diyya is compensation paid to the heirs of a victim. In Arabic, the word means both blood money and ransom.-Islamic and Arab tradition:The Qur'an specifies the principle of Qisas Diyya (plural: Diyyat; ) is compensation paid to the heirs of a victim. In Arabic, the word means both blood money and...
, or blood money, by the perpetrator. There has been a growing trend of exorbitant blood-money demands, for example a sum of $11 million was reported as being recently demanded. Saudi officials and religious figures have criticized this trend and said that the practise of diyya has become corrupted.
Family law
Laws relating to marriage, divorce, children and inheritance are not codified and fall within the general jurisdiction of the Sharia courts.Polygamy
Polygamy
Polygamy is a marriage which includes more than two partners...
is permitted for men but is limited to four wives at any one time. There is evidence that its practise has increased, particularly among the educated Hejaz
Hejaz
al-Hejaz, also Hijaz is a region in the west of present-day Saudi Arabia. Defined primarily by its western border on the Red Sea, it extends from Haql on the Gulf of Aqaba to Jizan. Its main city is Jeddah, but it is probably better known for the Islamic holy cities of Mecca and Medina...
i elite, as a result of oil wealth. The government has promoted polygamy as part of a return to "Islamic values" program. In 2001, the Grand Mufti
Grand Mufti
The title of Grand Mufti refers to the highest official of religious law in a Sunni or Ibadi Muslim country. The Grand Mufti issues legal opinions and edicts, fatwā, on interpretations of Islamic law for private clients or to assist judges in deciding cases...
(the highest religious authority) issued a fatwa
Fatwa
A fatwā in the Islamic faith is a juristic ruling concerning Islamic law issued by an Islamic scholar. In Sunni Islam any fatwā is non-binding, whereas in Shia Islam it could be considered by an individual as binding, depending on his or her relation to the scholar. The person who issues a fatwā...
, or opinion, calling upon Saudi women to accept polygamy as part of the Islamic package and declaring that polygamy was necessary "to fight against...the growing epidemic of spinsterhood". There is no minimum age for marriage in Saudi Arabia and the Grand Mufti reportedly said in 2009 that girls of the age of 10 or 12 were marriageable.
Men have a unlilateral right to divorce their wives (talaq
Divorce (Islamic)
In Islam there are separate rules for divorce for men and women under the terms of Islamic law . When a man has initiated a divorce the procedure is called . When a woman has initiated a divorce it is called khula ....
) without needing any legal justification. The divorce is effective immediately. The divorced wife can claim financial support for a period of four months and ten days afterwards. A woman can only obtain a divorce with the consent of her husband or judicially if her husband has harmed her. In practice, it is very difficult for a Saudi woman to obtain a judicial divorce. The divorce rate is high, with 50% of marriages being dissolved. In the event of divorce, fathers have automatic custody of sons from the age of 7 and daughters from the age of 9. The right for men to marry up to four wives, combined with their ability to divorce a wife at anytime without cause, can translate to unlimited polygamy. King Abdul Aziz
Ibn Saud of Saudi Arabia
King Abdul-Aziz of Saudi Arabia was the first monarch of the Third Saudi State known as Saudi Arabia. He was commonly referred to as Ibn Saud....
, the founder of the country, reportedly admitted to marrying over two hundred women. However, his polygamy was considered extraordinary even by Saudi Arabian standards.
With regard to the law of inheritance, the Quran specifies that fixed portions of the deceased's estate must be left to the so-called Qu'ranic heirs. Generally, female heirs receive half the portion of male heirs. A Sunni Muslim can bequeath a maximum of a third of his property to non-Qu'ranic heirs. The residue
Residuary estate
A residuary estate, in the law of wills, is any portion of the testator's estate that is not specifically devised to someone in the will, or any property that is part of such a specific devise that fails. It is also known as a residual estate or simply residue. The will may identify the taker of...
is divided between agnatic heirs.
Commercial and contract law
- See also: Contract Law of Saudi ArabiaContract Law of Saudi ArabiaContract law in Saudi Arabia is governed by the conservative Hanbali school of Sharia law, which adopts a fundamentalist and literal interpretation of the Quran...
Business and commerce is governed by Sharia. Commercial jurisdiction rests with the Board of Grievances composed of Sharia-trained judges. For foreign investors, uncertainties around the content of commercial law, because of the Sharia aspect, constitutes a disincentive to invest in Saudi Arabia. As it is governed by Sharia, contract law is not codified. Within the general limitations of Sharia, it allows considerable freedom for the parties to agree contract terms. However, contracts involving speculation or the payment of interest are prohibited and are not enforceable. If a contract is breached, Saudi courts will only award compensation for proven direct damage. Claims for loss of profit or opportunity will not be allowed as these would constitute speculation, which is not permitted under Sharia.
Specific modern aspects of commercial law, for example, commercial paper and securities, intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
, and corporate law are governed by modern regulations, and specialist government tribunals ("committees") deal with related disputes. The government recently revised its Intellectual Property laws to meet World Trade Organization
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
standards, as part of its admission to the WTO in 2004. Because of a lack of resources, when the new patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
law went into effect in 2004, the Saudi Patent office had only registered 90 patents since 1989, with a back-log of 9,000 applications. It is believed the back-log has now been reduced.
The Saudi government is also putting greater resources into combating piracy of software, printed material, recordings and videos, however pirated material is still widely available. Enforcement efforts have been supported by a fatwa
Fatwa
A fatwā in the Islamic faith is a juristic ruling concerning Islamic law issued by an Islamic scholar. In Sunni Islam any fatwā is non-binding, whereas in Shia Islam it could be considered by an individual as binding, depending on his or her relation to the scholar. The person who issues a fatwā...
, or religious ruling, that software piracy is forbidden under Islam. Saudi Arabia had been on the Special 301 Watchlist
Special 301 Report
The Special 301 Report is prepared annually by the Office of the United States Trade Representative under Section 301 as amended of the Trade Act of 1974. The reports identify trade barriers to US companies and products due to the intellectual property laws, such as copyright, patents and...
, the U.S.'s running log of countries considered to inadequately regulate or enforce intellectual property rights, but was removed in 2010.
Saudi law recognizes only corporate or partnership entities established under Sharia or the Saudi Company Law of 1982. A contract with any other type of company will be void and the persons who made the contract in the company's name will be personally liable for it. Under Sharia, corporations can take a number of forms, but the most common in Saudi Arabia is Sharikat Modarabah where some partners contribute assets and others contribute expertise. In addition, the Company Law (which is based on Egyptian company law) identifies eight permissible forms of corporate entity including joint ventures, and limited liability partnerships.
Labor law
Employers have a number of obligations, including at least 15 days paid holiday after a year's employment. Terminated employees must receive an "end-of-service" payment of a half a months' salary for each year employed going up to one month if employed for more than 5 years.Land law
Most land in Saudi Arabia is owned by the government and only cultivated land and urban property are subject to individual ownership. All land titles must be registered, but there is no accurate information as to the extent of registration. Real estate could only be owned by Saudi citizens until 2000, when the property laws were amended to allow foreigners to own property in Saudi Arabia. Property investments by non-Saudis of more than 30 million Saudi riyals require approval of the Council of Ministers and foreigners remain prohibited from owning property in MedinaMedina
Medina , or ; also transliterated as Madinah, or madinat al-nabi "the city of the prophet") is a city in the Hejaz region of western Saudi Arabia, and serves as the capital of the Al Madinah Province. It is the second holiest city in Islam, and the burial place of the Islamic Prophet Muhammad, and...
and Mecca
Mecca
Mecca is a city in the Hijaz and the capital of Makkah province in Saudi Arabia. The city is located inland from Jeddah in a narrow valley at a height of above sea level...
.
Saudi Arabia has three categories of land: developed land (amir), undeveloped land (mawat), and "protective zones" (harim). Developed land comprises the built environment of towns and villages and agriculturally developed land, and can be bought, sold and inherited by individuals. The undeveloped land comprises rough grazing, pasture and wilderness. Rough grazing and pasture is owned in common and everyone has equal rights to its use. The wilderness is owned by the state and may be open to everyone unless specific restrictions are imposed. Harim land is a protective buffer between the owned land and the undeveloped land, and is defined, in the case of a town, as the area that can be reached and returned from in a day for the purposes of collecting fuel and pasturing livestock.
Saudi law utilizes the Waqf
Waqf
A waqf also spelled wakf formally known as wakf-alal-aulad is an inalienable religious endowment in Islamic law, typically denoting a building or plot of land for Muslim religious or charitable purposes. The donated assets are held by a charitable trust...
, which is a form of land ownership whereby a Muslim can transfer property to a foundation for long-term religious or charitable purposes. The property cannot then be alienated or transferred.
Energy law
Basic Law of Saudi Arabia
The Basic Law of Saudi Arabia is a constitution-like charter divided into nine chapters, consisting of 83 articles...
states:
-
- All natural resources that God has deposited underground, above ground, in territorial waters or within the land and sea domains under the authority of the State, together with revenues of these resources, shall be the property of the State, as provided by the Law. The Law shall specify means for exploitation, protection and development of these resources in the best interest of the State, and its security and economy.
The Ministry of Petroleum and Mineral Resources is responsible for general strategy in the oil and gas sectors and for monitoring the state-owned oil company, Saudi Aramco
Saudi Aramco
Saudi Aramco , officially the Saudi Arabian Oil Company, is the national oil company of Saudi Arabia.Saudi Aramco is the world's largest and most valuable privately-held company, with estimates of its value in 2011 to be $7 trillion USD.Saudi Aramco has both the largest proven crude oil reserves,...
. The oil, gas and refining industries in Saudi Arabia are controlled by Saudi Aramco, which has a near monopoly in these areas. It is the world's biggest oil producer, the middle east's biggest company and is considered to be indisputably the most important energy company in the world.
Currently, the electricity industry is in the hands of the 75% state-owned Saudi Electric Company, but plans have been announced to privatize the industry.
Human rights
Human rights issues in Saudi Arabia have attracted vehement criticism. These include criminal law punishments that are considered as cruel, as well as the position of women, religious discrimination, the lack of religious freedom and the activities of the Saudi Mutaween.Between 1996 and 2000, Saudi Arabia acceded to four UN human rights conventions and, in 2004, the government approved the establishment of the National Society for Human Rights
National Society for Human Rights
The National Society for Human Rights is a Saudi Arabian human rights organisation closely associated with the Saudi government and established on 10 March 2004, two years after the Human Rights First Society applied unsuccessfully for a licence...
(NSHR), staffed by government employees, to monitor their implementation. To date, the activities of the NSHR have been limited and doubts remain over its neutrality and independence. Saudi Arabia was one of only eight countries that did not accept the UN's Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
when it was launched in 1948. Now, only Saudi Arabia remains openly opposed to the declaration. In response to the continuing criticism of its human rights record, the Saudi government points to the special Islamic character of the country, and asserts that this justifies a different social and political order.
Women's rights
The U.S. State department considers that “discrimination against women is a significant problem” in Saudi Arabia and that women have few political or social rights. After her 2008 visit, the UN special rapporteur on violence against women noted the lack of women's autonomy and the absence of a law criminalizing violence against women. The World Economic ForumWorld Economic Forum
The World Economic Forum is a Swiss non-profit foundation, based in Cologny, Geneva, best known for its annual meeting in Davos, a mountain resort in Graubünden, in the eastern Alps region of Switzerland....
2010 Global Gender Gap Report
Global Gender Gap Report
The Global Gender Gap Report was first published in 2006 by the World Economic Forum. The 2010 report covers 134 major and emerging economies....
ranked Saudi Arabia 129th out of 134 countries for gender parity.
Every adult woman has to have a close male relative as her "guardian". As a result, Human Rights Watch has described the position of Saudi women as no different to being a minor
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
, with little authority over their own lives. The guardian is entitled to make a number of critical decisions on a woman's behalf. These include giving approval for the woman to travel, to hold some types of business licenses, to study at a university or college and to work if the type of business is not "deemed appropriate for a woman." Even where a guardian’s approval is not legally required, some officials will still ask for it. Women also face discrimination in the courts, where the testimony of one man equals that of two women, and in family and inheritance law (see above).
Cultural norms impose restrictions on women when in public, and these are enforced by the mutawa. They include requiring women to sit in separate specially designated family sections in restaurants, to wear an abaya
Abaya
The abaya "cloak" , sometimes also called an aba, is a simple, loose over-garment, essentially a robe-like dress, worn by some women in parts of the Islamic world including in Turkey, North Africa and the Arabian Peninsula....
(a loose-fitting, full-length black cloak covering the entire body) and to conceal their hair. Women also risk arrest for riding in a vehicle driven by a male who is not an employee or a close male relative. Although there is no written ban on women driving cars, a Saudi driving license is required by law and these are not issued to women. Thus, it is effectively illegal for women to drive, and the ban is enforced by the mutawa.
Political freedom and freedom of speech
No political parties or national elections are permitted in Saudi Arabia and according to The EconomistThe Economist
The Economist is an English-language weekly news and international affairs publication owned by The Economist Newspaper Ltd. and edited in offices in the City of Westminster, London, England. Continuous publication began under founder James Wilson in September 1843...
's 2010 Democracy Index
Democracy Index
The Democracy Index is an index compiled by the Economist Intelligence Unit that claims to measure the state of democracy in 167 countries, of which 166 are sovereign states and 165 are UN member states...
, the Saudi government is the seventh most authoritarian regime from among the 167 countries rated. There is no legal protection of freedom of speech and Saudis are prohibited from publicly criticizing the government, Islam, or the royal family. The Saudi press is strictly censored and articles on Saudi dissidents are banned. Saudi censorship is considered among the most restrictive in the world and the country blocks broad swathes of the Internet. In the wake of the protests in Saudi Arabia in early 2011
2011 Saudi Arabian protests
The 2011 Saudi Arabian protests have been influenced by the Arab Spring that started with the 2011 Tunisian revolution. One of the main online organisers of a planned 11 March "Day of Rage", Faisal Ahmed Abdul-Ahad , was alleged to have been killed by Saudi security forces on 2 March, by which time...
, the government banned all public demonstrations and marches.
Criminal trials and punishment
Western-based organisations such as Amnesty InternationalAmnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
and Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
have condemned both the Saudi criminal justice system and its severe punishments. However, most Saudis reportedly support the system and say that it maintains a low crime rate.
Human Rights Watch, in their 2008 report on Saudi Arabian criminal justice system, noted that the criminal procedure code introduced in 2002 lacked some basic protections but, as mentiond above, had been ignored by judges in any case. Those arrested are often not informed of the crime of which they are accused or given access to a lawyer and are subject to abusive treatment and torture if they do not confess. At trial, there is a presumption of guilt and the accused is often unable to examine witnesses and evidence or present a legal defense. Most trials are held in secret. The physical punishments imposed by Saudi courts, such as beheading, stoning
Stoning
Stoning, or lapidation, is a form of capital punishment whereby a group throws stones at a person until the person dies. No individual among the group can be identified as the one who kills the subject, yet everyone involved plainly bears some degree of moral culpability. This is in contrast to the...
, amputation and lashing, and the number of executions have also been strongly criticized.
Religious freedom
In 2010, the U.S. State Department stated that in Saudi Arabia "freedom of religion is neither recognized nor protected under the law and is severely restricted in practice" and that "government policies continued to place severe restrictions on religious freedom". No faith other than Islam is permitted to be practised, although there are nearly a million Christians - nearly all foreign workers - in Saudi Arabia. There are no churches or other non-Muslim houses of worship permitted in the country. Even private prayer services are forbidden in practice and the Saudi religious police reportedly regularly search the homes of Christians. Foreign workers have to observe Ramadan but are not allowed to celebrate Christmas or Easter. Conversion by Muslims to another religionApostasy in Islam
Apostasy in Islam is commonly defined in Islam as the rejection in word or deed of one's former religion by a person who was previously a follower of Islam...
(apostasy
Apostasy
Apostasy , 'a defection or revolt', from ἀπό, apo, 'away, apart', στάσις, stasis, 'stand, 'standing') is the formal disaffiliation from or abandonment or renunciation of a religion by a person. One who commits apostasy is known as an apostate. These terms have a pejorative implication in everyday...
) carries the death penalty, although there have been no confirmed reports of executions for apostasy in recent years. Proselytizing by non-Muslims is illegal, and the last Christian priest was expelled from Saudi Arabia in 1985. Compensation in court cases discriminates against non-Muslims: once fault is determined, a Muslim receives all of the amount of compensation determined, a Jew or Christian half, and all others a sixteenth.
According to Human Rights Watch, the Shia minority face systematic discrimination from the Saudi government in education, the justice system and especially religious freedom. Restrictions are imposed on the public celebration of Shia festivals such as Ashura
Day of Ashura
The Day of Ashura is on the 10th day of Muharram in the Islamic calendar and marks the climax of the Remembrance of Muharram.It is commemorated by Shia Muslims as a day of mourning for the martyrdom of Husayn ibn Ali, the grandson of the Islamic Prophet Muhammad at the Battle of Karbala on 10...
and on the Shia taking part in communal public worship.
LGBT rights
Saudi Arabia is one of the few countries in the world where homosexual acts are not only illegal but punishable by execution. However, there have been no executions for homosexuality reported in Saudi Arabia since 2002 when three men from AbhaAbha
Abha is the capital of Asir province in Saudi Arabia. It is situated at 2,200 metres above sea level in the fertile mountains of south-western Saudi Arabia near the National Park of Asir. Its mild climate makes it a popular tourist destination for Saudis...
were beheaded. There have, however, reportedly been raids on "gay parties" and men have been arrested for "behaving like women". The usual penalties inflicted have been limited to flogging and imprisonment.