SUBJECT: Codification of Sharia and wider legal reform in Saudi Arabia.
SIGNIFICANCE: The government in May confirmed that codification of Sharia law has been approved by the most senior religious authorities. In theory, such codification, along with broader preparations for new specialised courts, could create a more predictable operating environment for business and provide greater legal protection for individual Saudi nationals.
ANALYSIS: In late May, Minister of Justice Mohammed al-Eissa confirmed that the kingdom's highest legal body, the Supreme Judiciary Council (SJC), had agreed to codify Sharia law. If the expected 'majallah' (compendium) of legal judgments is not only published but becomes the legal reference point for future court decisions, then for the first time, precedent could come to shape legal judgments, prompting the development of a more standardised justice system. However, production and publication of such a majallah could take years, and even then there is no guarantee that it will become the basis of the principle of precedent in court.
Background. Traditionally, the politico-legal system has rested on unchallenged clerical authority within legal and social spheres, with the ruling family exercising authority over more overtly political matters. State-founder Ibn Saud sought to establish a more ordered legal operation, but the majallah introduced under his rule was observed more in the breach than in application.
Yet Saudi legal reforms proposed and only modestly implemented since 2001 could begin to weaken the hold of the clerical establishment over the legal environment. King Abdallah reportedly first asked the SJC to consider Sharia codification in 2005.
The decision to go ahead took five years of fraught debate among the eleven-man SJC. Some feared that it would compromise the ability of those trained in Islamic law to conduct a key principle in Islamic jurisprudence, 'ijtihad' (interpretation). Eventually, the SJC apparently agreed that establishing legal precedent will not prevent an individual jurist's conduct of interpretation according to the established schools of Islamic law. However, with Abdallah's rivals among the senior al-Saud family encouraging resistance to change, the debate will continue to be drawn out.
Commercial law. One area in which there could be SJC agreement on Sharia codification, and even conceivably its practical application, is in the commercial sphere. The kingdom's WTO obligations have helped drive reform proposals to meet international business needs.
At present, foreign businesses seeking redress against a Saudi business may, for instance, take the matter to a committee of the relevant ministry. These committees lack legal weight and their decisions are often successfully appealed by a Saudi company in an appellate court where reference to a different interpretation of Islamic law or even a different Islamic school might be used to win an appeal.
A foreign business that was seeking redress against a Saudi government department or official body might take the matter to a grievances (administrative) court. However, this process is complicated and allows adjudication by those not trained in commercial law or necessarily sensitive to the global business environment, and Saudi nationals are often favoured in the outcome.
Preparations to introduce new dedicated commercial courts, officiated over by trained commercial law experts, are reportedly underway. If codification of business law is agreed, and these courts are established, foreign and more far-sighted Saudi businesses could benefit; specialist labour, civil and general courts are supposed to follow.
However, there are not yet any dedicated commercial courts at first instance and appeal level. The plans arguably are sequenced wrongly: without such courts, the system will be incomplete.
Training. Legal reform proposals issued in 2007 envisage the SJC running a new training facility for the proposed specialist judges.
At present, some foreign law firms based in Saudi Arabia are pushing for specialist training. Even though such training is urgently required, the issue of how it will take place and by whom remains sensitive. Many jurists have a poor grasp of legal issues beyond ijtihad on criminal and personal status matters referred to in the Koran, the Sunnah (traditions of Mohammed) and the Hadith (sayings of Mohammed).
However, a key question is whether even such training, combined with a commercial court system and the proposed Sharia codification, would ensure judicial neutrality when the business interests at stake are those of a member of the ruling family or a well-connected Saudi national. Further pressures would be present should a jurist be asked to adjudicate between two such individuals or companies. Last month, a Cayman Island court recommended that the battle between the family businesses of Maan al-Sanea and Ahmed al-Gosaibi should be handled within the Saudi legal system -- a development which puts the spotlight on the Saudi court system, raising questions about its ability to judge such sensitive commercial and, in effect, political matters.
Individual rights. Codification and the wider legal reform process does not offer a clear path to improved treatment of individuals. Some figures involved in semi-public efforts to promote gradual political reform see a potential benefit to their efforts to challenge the state if the law were to operate on a more predictable, routine, basis. However, much of the business of state is conducted outside of the formal legal framework, especially regarding the security and intelligence services and/or the interests of senior ruling family members, and there are grounds for scepticism over how much this will change.
The legal team of the prisoner, and former judge, Suleiman al-Reshoudi -- arrested in 2007 after circulating a petition calling for political reform -- announced in July that they are threatening on his behalf to sue the Ministry of the Interior, which they have been challenging in the courts for his alleged wrongful arrest. This situation both reflects an environment in which reformers are more willing to test the bounds of state authority and speaks to the lack of legal accountability: Reshoudi may yet be brought before a closed 'special criminal court' under a system created in 2008 to try alleged terrorists.
At present, King Abdallah intervenes to promote alternative legal outcomes to those attracting unwanted international attention; and courts operating under the board of grievances system formally report to him. Replacing this arbitrariness with a codified system may do little to advance rights-based law, especially if any agreed 'precedent' is highly conservative.
Political context. A number of factors will complicate the process of reform. For instance, the legitimacy of the Saudi political order has traditionally come from a state-funded Islamic clerisy, but more recently it has needed the tacit approval of more outspoken clerics whose influence partly stems from the perception that they are not on the payroll. Thus the king and aspirant leaders proceed cautiously in areas normally outside of their ruling family domain.
At the same time, King Abdallah's chief rivals, Princes Sultan and Nayef, semi-discreetly mobilise resistance to reform, legal or otherwise. The eventual majallah, assuming it is created, may in effect be sidetracked if the exercise of ijtihad is deemed to take priority over regularisation of the courts' decision-making.
Moreover, in a system based on personal patronage and ideological legitimacy, institutional reform cannot be considered straightforward since there are no institutions in the conventionally understood sense -- only personal fiefdoms upon which rival power centres are constructed and among whom consensual change is illusive.
CONCLUSION: Legal reform will remain slow and piecemeal. Codification of Sharia offers the potential for change that foreign business in particular could see some benefit from. However, in a system vulnerable to rivalry and vested interests, there remain many obstacles to agreement and implementation.
© Oxford Analytica 2010
