Though the Saudi royal family still rules the realm, they have initiated a number of reforms over the past 30 years. Some of these reforms have been bolder and more successful than others. Some have been doomed from the very start — a few, perhaps, were intended to be stillborn. Judicial reform is one of the most recent and potentially one of the most important reform initiatives undertaken in the Kingdom.
In late 2007, King ‘Abdullah bin ‘Abd al-‘Aziz allocated nearly $2 billion to overhaul the Kingdom’s judicial system and upgrade its court facilities, ostensibly to streamline the legal process, which had been and remained a perennial source of dissatisfaction for many. Few perceived the move as being serious. Critics contended that spending a couple of billion dollars would not be effective as long as the ideological foundations on which the entire legal premise of the country continued to be embedded in Shari‘a (Islamic law).
Inasmuch as ‘Abdullah is an innovator, his move to reinforce the standing of the country’s courts and, more importantly, to introduce the idea that judges ought to make their rulings free from outside influence, stood out. His desire to “overhaul” — the term itself was revolutionary — the judiciary from the top down was equally bold. The Monarch proposed the establishment of a supreme court, one or more appeals courts, and a general courts system to replace the dated apparatus operating under the Supreme Judicial Council (SJC). While some of these measures were meant to expedite ongoing economic reforms, the creation of a supreme court was bound to have far-reaching consequences, including a marked improvement in civil liberties.
Although Riyadh’s proposals reflected the need to streamline the Kingdom’s growing economy, not all of the changes were directly related to Saudi interactions with the outside world. In fact, most civil proceedings that involved claims against the government, as well as the enforcement of foreign judgments, were time consuming and problematic, not because they were heard by special administrative tribunals such as the Commission for the Settlement of Labor Disputes or the Board of Grievances, but because these institutions were burdened by a dense bureaucracy. Beyond the intricacies of the laws themselves, disputes were handled by the Ministry of Commerce and Industry committees, or Ministry of Labor minions, which had earned poor reputations for notorious rulings that seldom handled commercial disputes fairly. Labor challenges were seldom adjudicated with any degree of impartiality. In short, whimsical bureaucrats tended to err on the side of the impossible, which prevented the development of fair and relatively transparent commercial settlements. Independent commercial courts will now handle disputes that may arise in a more or less impartial way, adjudicating on the merits of a case, rather than subjecting putative decisions to the narrower institutional interests of a particular ministry.
With the creation of independent commercial courts, as well as appropriate appeals tribunals, domestic and foreign investors in Saudi Arabia will presumably receive a far more expeditious enforcement of contracts. Indeed, the purpose of these reforms is precisely to ensure that everyone operates within a sound investment climate — to protect businesses from the vagaries of periodic disputes. Equally important, ‘Abdullah insisted that these technical courts be staffed by specially trained magistrates with knowledge or even expertise in commercial affairs, because he wished to unburden religious courts heretofore saddled with such responsibilities. To his immense credit, the Monarch appreciated the value of his religious qadis (judges), but understood that the brightest among them could not possibly display proficiency on every subject. Naturally, neither the talent nor the training of commercial magistrates could be developed instantaneously. Accordingly, Riyadh embarked on the long-term overhaul of its legal institutions, including bankruptcy legislation, shareholder protection, and the various regulations that governed access to lines of credit. ‘Abdullah was aware that legal reforms were interconnected, which necessitated carefully studied adaptations of the financial sector, working and interacting with both commercial and industrial activities. His challenge was to introduce meaningful improvements in these areas without upsetting existing institutions that legitimized Al Saud rule.
The Supreme Court
To maintain relative harmony, ‘Abdullah abolished the SJC, as he envisaged a functioning replacement that would become the Kingdom’s highest legal tribunal. It may be useful to note that the 1975 Law of the Judiciary (especially Article 5) identified the Supreme Judicial Council as the highest legal authority in Saudi Arabia. Composed of 11 members, the SJC was staffed by five judges who constituted a Permanent Panel of the Council, which acted as its own embedded Appellate Court. These magistrates were full-time members, but were supplemented by another five part-time qadis, which included the Chief of the Appellate Court or his deputy, the Deputy Minister of Justice, and the three members with the longest time in service as Chief Judges of the General Courts in Mecca, Medina, Riyadh, Jiddah, Dammam, and/or Jizan. In addition to these ten men, a Chairman appointed by the King convened panelists on an as needed basis. SJC duties encompassed a slew of activities, ranging across administrative, legislative, consultative, and judicial functions. Needless to say, because the SJC supervised most courts, administered employment-related affairs of the judiciary, and assumed the burden of rendering judgments on religious, social, commercial, and myriad other topics, it was nearly impossible for it to function effectively. How could magistrates render fair rulings on major criminal cases, including those involving death sentences, while simultaneously opining on general Shari‘a principles?
The new Supreme Court will have a narrower writ, addressing administrative matters that will concentrate on the selection of judges, the setting up of tribunals, and other specialist courts to implement the King’s recommendations. It will not be a body similar to either the US Supreme Court or the British High Court of Justice. Rather, the high court will firstly examine cases involving administrative appeals rulings, to handle disputes involving the rights of employees, compensation, contracts, disciplinary issues, administrative decisions, and the implementation of foreign regulations. A separate Board of Grievances henceforth will supervise administrative disputes involving government departments, which will act as an independent body and be directly answerable to the King. Second, the Supreme Court will focus on selected cases that may require national attention. ‘Abdullah apparently recommended that the Supreme Court devise an official website to publish Islamic legal rulings, or fatwas, in order to ensure that these — and only these — as yet not fully defined cases are recognized by all scholars who must rely on precedence. Thus, unlike the SJC, the Supreme Court has a prominent guidance role. What remains to be determined, however, is the interaction, or clash as the case may be, between members of the Supreme Court and the Council of Senior ‘ulama’ (Islamic scholars). Without questioning the latter’s professionalism, Riyadh must ensure that the Supreme Court will grow eventually to become the institution that will uphold all laws in Saudi Arabia — a developing country experiencing growing pains. Over time, a reformed legal system will eliminate arbitrary judgments, and while the codification of laws will not be automatic (as it will remain under Shari‘a), King ‘Abdullah’s vision may well strengthen the monarchy.
Because all legal questions are interpreted through religious rulings in Saudi Arabia, the very idea of “reforms,” even if putative, will strike secularists as imaginary at best. Naturally, throwing money at a problem will not necessarily solve any of its intrinsic shortcomings, but the Kingdom of Saudi Arabia seems nevertheless to have embarked on one of its most sweeping legal changes in generations.
How could magistrates render fair rulings on major criminal cases?