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Sada - Analysis

Saudi Judicial Reform and the Principle of Independence

May 5, 2009 عربي

In February 2009, King Abdullah bin Abdul-Aziz reshuffled the cabinet for the first time since taking power in 2005, appointing new ministers for health, education, justice, and culture and media. The reshuffle included the appointment of a woman as deputy minister of women’s education for the first time in Saudi Arabia. This came as part of a series of changes involving judicial, legislative, religious, military, and economic institutions. The amendments also included appointment of a new chief of the Supreme Judicial Council (SJC) and formation of a Supreme Court, to which nine heads of Courts of Appeals were appointed as members. These appointments constitute essential steps towards implementing the new judicial system laid out in an October 2007 law, one of the most significant reform moves King Abdullah has made so far.

Among the notable features of the 2007 Law of the Judiciary is that it transfers all relevant administrative prerogatives from the Ministry of Justice to the SJC, and all the SJC’s judicial prerogatives to the Supreme Court. Such measures are practical steps toward judicial independence, a principle that appears both in the new law and its 1975 predecessor, as well as in the shari’a (Islamic law), but has not been implemented until now. In particular, the new law defines the relationship of the judicial branch with the minister of justice (a member of the executive branch) and his ministry. The previous judicial system tasked the minister of justice with administrative oversight of the courts and judges’ affairs, although he was supposed to consult with the SJC. The new law gives these responsibilities to the SJC. The SJC will oversee affairs such as judicial appointments, disciplinary actions, training, leaves of absence, and other matters that had been within the ministry’s jurisdiction. The minister of justice also is completely absent from the decision-making circle within the Supreme Court.

Indications of increased judicial independence also extend beyond administrative matters to the transfer of supervision of the court system from the Ministry of Justice to the SJC. The previous law, for example, had stipulated that rulings of the Court of Cassation required the approval of the minister of justice. If the minister did not approve, the ruling was sent back to the court for reconsideration. If the body’s deliberations failed to yield a decision that the minister approved, then the matter was referred to the SJC to render a final judgment. Under the new law, the Court of Cassation rules by majority decision and its decisions are final.

In the new law, the SJC alone possesses the prerogative to compose courts of first instance and specify their specializations; previously the minister of justice did this by decree, based on SJC recommendations. The SJC has been given jurisdiction over selecting the heads of the appeals courts and their assistants from among the appeals court judges, as well as the heads of the courts of first instance. The SJC will also decide when a court is allowed to convene elsewhere than its official seat or to rule outside its area of specialization.

Furthermore, the new Law of the Judiciary has vested the duty of ascertaining judicial competence in the SJC, stipulating that judges must have earned a degree from one of the Kingdom’s law schools or an equivalent degree, with the condition in the latter case that they pass a special exam prepared by the SJC (previously done by the Ministry of Justice). The SJC also took over from the executive branch the job of specifying the experience required to occupy the various judicial ranks.

One aspect that has not changed is that under the new law judges will still be appointed or dismissed by royal decree upon recommendation from the SJC, a factor that appears to diminish judicial independence from the executive branch. But the greatest duty incumbent on a Muslim ruler according to shari’a is establishing justice—Article 55 of the Basic Law obliges the king to “oversee the implementation of the shari'a” —and thus appointing judges who are honest, competent, and knowledgeable is a must. This is one of the duties with which Islam entrusts the ruler, and which does not necessarily infringe on the judiciary’s independence.

Abdullah Fakhry Ansari is assistant professor of law and Islamic legal systems at King Abdul-Aziz University and senior advisor to the president of Human Rights Commission in Saudi Arabia. Paul Wulfsberg translated this article from Arabic.

 
عربي

Comments (2)

 
 
  • Dr. Salma Al-Ghamdi
    Thank you Dr. Ansary for this great article! I agree with you that Judicial Reform in Saudi Arabia will lead to judicial independency in the kingdom.
     
     
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  • Zafar Gondal
    A highly commendable step and leap forward in judicial independence. However, independence will compromise if the SJC judges are appointed by executive or king. The SJC will simply replace the Ministry unless the SJC is financially and administratively independent and judges appointment is transparent. A transparent, accountable, fair and objective judicial code of conduct and its enforcement is also vital for the subordinate judges and support staff.
     
     
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Source: http://carnegieendowment.org/sada/2009/05/05/saudi-judicial-reform-and-principle-of-independence/6bfn
 

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