On March 1, 1992, King Fahd ibn Abdel-Aziz issued three major laws: the Basic Law of Government, the Consultative Council Law and the Law of Provinces. The Basic Law of Government formalizes several aspects of the constitutional framework of the country. The Consultative Council Law replaces the existing council, established in 1926, with a new council to be appointed by the king within six months. The Law of Provinces aims at regulating the relationship between central government agencies and regional governors, replacing a 1963 law that was never implemented.
While these laws constitute significant steps towards codifying the largely unwritten legal system of the country, they fall far short of internationally recognized standards in their treatment of civil and political rights. These laws had been long-overdue. Ever since the ruling al-Saud family consolidated its power in the 1930s, it has promised to promulgate laws that provide for popular participation in government and for public scrutiny of government decisions. Disappointingly, the final products are far below expectations.
Despite the obvious shortcomings of the new laws, the United States government has publicly endorsed them without voicing any reservations. President Bush wrote to King Fahd applauding the new laws. The U.S. State Department overlooked the authoritarian nature of the new laws and their failure to recognize most civil and political rights. U.S. officials unequivocally praised the new laws as important steps towards participatory government and recognition of citizens rights.
The Basic Law of Government is either silent or tentative on most universally recognized human rights. It does not, for example, ban extrajudicial killings, torture or cruel or inhuman punishment. This report points out the need for an explicit ban, as both Saudi law and practice in the past permitted their occurrence.
The new laws do not ban discrimination on the basis of gender or religious beliefs. Neither do they protect free speech, assembly or association. Existing Saudi law sanctions discrimination against women, muzzles free speech and restricts public assembly. It also bans most forms of association, including trade unions and political parties. No change is contemplated by the government in these areas.
There is no remedy in the new laws for the notoriously deficient due process rules in the Saudi penal system. Based on Shari`a as interpreted by government-appointed clergy, the criminal code relies not on written statutes but on commentaries written in the Middle Ages. Defendants are not allowed legal representation in the courtroom, even when facing the death penalty. Their difficulties are compounded by the fact that many are uneducated -- the adult literacy rate is only sixty-two percent1 -- and that one third of the population are foreigners who are even less familiar with these esoteric tracts.
The three new laws were apparently issued by King Fahd without formal consultation with any governmental body. They were drafted by an ad hoc committee headed by Prince Nayef, the King's brother who also heads the interior ministry, the principal government agency identified with most violations of human rights in Saudi Arabia. It was probably no coincidence then that while the Basic Law is silent on human rights, it is long on the powers of the executive branch, notably the king's near absolute authority.
By September 1992, the long-promised Consultative Council is scheduled to be appointed by the king. Under the new laws, the king will have the right to dismiss any or all of its sixty-one members. The king will also determine the financial affairs of the council and the discipline of its members.
By its law, the Consultative Council will be a purely advisory body that has no power to legislate. While it is allowed to discuss and to interpret laws, the council's ability to propose legislation is limited. Nor is the government required to submit its budget to the council or consult it on important decisions.
The new laws maintain the Council of Ministers, headed by the king, as the highest legislative authority, after the king himself. Each of the three-newly issued laws explicitly states that only a royal order can amend its provisions.
Comments by Saudi leaders since the new laws were issued have not indicated that the new statutes are a beginning towards a full process of democratization. Rather, they appear to be the maximum of concessions that the ruling family is willing to grant in response to both internal demands and external pressures. Seeking probably to dampen any hopes of a new era of liberalization that might have been raised by the release of these laws King Fahd has flatly rejected democracy and free elections as western concepts that are incompatible with Saudi ideology. In a March 28 interview, the Monarch said:
The democratic system that is predominant in the world is not a suitable system for the peoples of our region. Our peoples' makeup and unique qualities are different from those of the rest of the world. We cannot import the methods used by people in other countries and apply them to our people. We have our Islamic beliefs that constitute a complete and fully-integrated system. Free elections are not within this Islamic system, which is based on consultation (shura) and the openness between the ruler and his subjects2 before whom he is fully responsible...The system of free elections is not suitable to our country, the Kingdom of Saudi Arabia -- a country that is unique in that it represents the Muslim world in supervising the holy shrines, and unique in other ways as well as I have already pointed out...In my view, Western democracies may be suitable in their own countries but they do not suit other countries.3
The King's reference to the "peoples of our region" was apparently directed to other Gulf countries. The King's interview was given simultaneously to two widely-read Gulf dailies: the conservative al-Siyassah (Politics), a Kuwaiti newspaper known to be close to the Saudi government; and the United Arab Emirates al-Ittihad (The Union), a semiofficial newspaper published in Abu-Dhabi. The King appears to be rejecting the suitability of democracy and free elections to any of the Gulf countries.
Illustrating its true sentiments, the Saudi government is widely acknowledged to have been the main source of pressure on the Kuwaiti royal family to delay the reconvening of Kuwait's National Assembly, dissolved in 1986, in part at Saudi instigation. The Kuwaiti parliament had been a beacon of lively debate and of occasional challenge to government authority in the region. Pro-democracy activists in Bahrain and the United Arab Emirates believe that Saudi pressure has always been behind their governments' opposition to democratic reform as well.
Previous Essays at Constitution Building
In 1902, King Abdel-Aziz ibn Saud, father of the present king of Saudi Arabia, restored his family's rule over Riyadh, the traditional capital of the family. Between 1902 and 1932, through a bloody civil war between the al-Saud family and other ruling families in the Arabian peninsula, he was able to consolidate his power and eliminate his competitors. In 1932, he decided to name the newly unified country Saudi Arabia, after his family's name. In a September 18, 1932 royal order declaring the new name, King Abdel-Aziz ordered his advisers to "embark immediately on drafting a basic law for the Kingdom."1 There is no record indicating that any effort was made to follow up on this order.
Thirty years later, on November 6, 1962, the Saudi government adopted a ten-point reform program. At its outset, it declared:
"The time has arrived to issue a basic law of government...setting precisely and clearly the basic principles of government and of the relationship between the ruler and the ruled; regulating the various state powers and their inter-relationships; and stating the basic rights of citizens, including the right to free expression within the limits of the Islamic faith and public order."
This program was considered revolutionary at the time. It called for a decentralized system of government and independence of the judiciary, and included a ban on slavery -- still legally permitted until that date.2
The 1962 program had been conceived partly as a response to the overthrow of the monarchy in Yemen creating turmoil which the royal family feared may spill over into Saudi Arabia. Both the Yemeni government and its patron, President Nasser of Egypt, had launched a fierce campaign to topple the Saudi government. The program was also part of the intra-family power struggle. Once the power struggle was settled in 19643 and the danger from Yemen and Egypt was neutralized following the June 1967 Arab-Israeli war, the Saudi government probably did not see a need to introduce constitutional changes. With the exception of the ban on slavery, then, yet another declared attempt at constitutional reform went largely by the board.
In 1980, King Fahd, then crown prince, told a Kuwaiti newspaper that a 209-article draft constitution had been completed and was about to be issued in final form.4 This assurance too went unfulfilled. There were indications that it did not represent genuine commitment to democratic rule, but as before was announced in response to outside and internal pressures to which the Saudi government was being subjected. Chief among those pressures were developments in Iran and in Saudi Arabia itself. In February 1979, the Shah of Iran was deposed by a popular revolution led by Ayatollah Rouhollah Khomeini. The Iranian revolution was especially threatening to the royal family since it adopted Islam as the source of its legitimacy, the same source upon which the al-Saud family based its own authority. The revolution was also based on animosity to monarchical rule epitomized by the Shah and was openly hostile to the ruling family of Saudi Arabia. Anti-royalist sentiments spilled over into Saudi Arabia. In November 1979, an armed insurrection by Sunni fundamentalists in Mecca, the holiest city in Saudi Arabia, resulted in the death of hundreds of government troops and rebels. Sixty-three of the captured rebels were subsequently beheaded without a trial. Around the same time, demonstrations by Saudi Shi`a took place in the Eastern Province, precipitating a violent response by National Guardsmen resulting in hundreds being killed, wounded or put in prison. Once the perceived threats were neutralized, King Fahd's promises were quietly abandoned.
On November 8, 1990, in a surprise move clearly dictated by the unprecedented international scrutiny to which Saudi Arabia was being subjected at the time, King Fahd announced that he had approved the formation of a long-awaited consultative assembly. His announcement, which came in the middle of the Gulf crisis precipitated by the Iraqi invasion of Kuwait, promised that the consultative body would be established "as soon as the final touches are made on a final draft of a basic law for the kingdom," submitted to him by a special committee headed by Prince Nayef, the Minister of Interior and the king's brother.
Buoyed by King Fahd's announcement and by the international attention resulting from the presence of half a million U.S. troops in Saudi Arabia, forty-three leading Saudi figures fromall walks of life and political leanings sent an open letter to the king suggesting the introduction of democratic reforms and the observance of basic liberties. The letter, which began circulating in the country clandestinely during the first half of December 1990, called on the king to expedite the appointment of a consultative assembly and the promulgation of a constitution. It also suggested reforming the judicial system and granting freedom of the press. Although security forces questioned a number of signatories to identify the petition's instigators, the government largely ignored the issue.
When, two months later, some two hundred religious scholars, including the senior hierarchy of the religious establishment, circulated a similar petition, the government took note. The king summoned a number of key signatories of the petition and criticized them for circulating it. After the meeting, some of the most prominent petitioners - including Shaikh Abdel Aziz ibn Baz, the highest religious authority in the country and probably the most significant name on the petition - publicly criticized the leaking of the document to the press and expressed their complete trust in the government.5
In an important speech on November 7, 1991, King Fahd again said that the formation of an advisory council and the adoption of a basic law were imminent - "within a period of no more than a month or a month and a half." Finally, on March 1, 1992 -- sixty years after King Abdel-Aziz's order and thirty years after Prince Faisal's abortive reform program -- King Fahd approved the three laws, which were issued by royal orders.6
The Constitutional Framework under the New Laws
The government of Saudi Arabia has always rejected the idea of adopting a secular written constitution, arguing that the constitution of the country already existed, namely the Qur`an, the Muslim holy book. Although the newly-issued Basic Law of Government addresses some fundamental legal issues, it is not a constitution. According to Article 1, the constitution of Saudi Arabia is "God's Holy Book and His Prophet's Tradition."1 The new law thus leaves intact the traditional role of the government-appointed clergy as the nominal arbiters of constitutional matters while the king retains the real authority in effect on such issues.
The religious establishment expresses its authority through the Council of Senior Scholars, whose members are appointed by the king.2 While the council has had a significant degree of autonomy in matters purely religious, in political matters it has traditionally adhered to government wishes. In most of its decisions on political issues, the council has made it explicit that its opinions are purely advisory and that according to its interpretation of Islam, the king has near absolute authority. In the officially sanctioned Wahhabi school of theology, the king is both the temporal and the spiritual leader of the community and the commander of the faithful. According to this long-standing interpretation, unless a royal decision openly contravenes Islamic principles or is clearly blasphemous (kufr bawah), all citizens are required to obey it even if they disagreed with it, lest they become guilty of fitna or sedition.
The Basic Law thus keeps the king and the appointed Council of Senior Scholars as the only legally permitted interpreters of the "constitution". The council's written interpretations are usually issued at the request of the government or, less commonly, private individuals. For example, the government has sought the council's opinion in politically-motivated cases of sabotage or insurrection. In 1980, the government secured a majority decision by the council against the fundamentalists who, in November 1979, had carried out an armed attack on the holy sites in Mecca. Armed zealots took over al-Masjid al-Haram, the holiest Muslim shrine, and for weeks withstood a government counteroffensive. The bloodshed resulted in the death of hundreds of government troops and rebels. After government forces had retaken of the mosque, then-King Khaled ordered the execution without trial of sixty three of the captured rebels, basing his order on the council's statement that the rebels had committed hiraba, or armed insurrection.
Saudi Shari`a scholars interviewed by Middle East Watch have pointed out, however, that, under Shari`a rules, an opinion of the council or a fatwa by one of its committees cannot be legitimately considered a substitute for a judge's order. They also pointed out that whilejudges usually follow the guidance of the council, they are not obliged to do so. In addition, these scholars said, only judges should have the right to evaluate evidence against the suspects and determine their guilt or innocence. In their view, the 1980 beheading of the Mecca insurgents was extrajudicial killing.3
Constitutional rules implicit in the Shari`a are not codified in written form but are a result of the interpretations given by the Council of Senior Scholars to certain religious edicts. Because of the intractability of some of the underlying texts, ordinary citizens are not able to avail themselves of their protection if their conflict is with the government, the most likely adversary in cases of denial of constitutional rights. Nor is there a constitutional court to settle such disputes between citizens and the government. A serious flaw in the newly-issued laws is that they do not call for the establishment of such court.
The religious basis of government is further emphasized in Article 7 of the Basic Law which states: "God's Holy Book and His Prophet's Tradition are the source of authority of the government. They are the arbiters of this Law and all other laws." Fundamentalist groups have welcomed this provision, regarding it as a check on the absolute power of the state. The text also appears designed to assure these groups that there is no attempt to separate religion from state. But it is not yet clear what this text will mean in practice. The Council of Senior Scholars is assigned a nominal role in defining constitutional authority. While this role is admittedly important, it is still an advisory role nevertheless. The king remains in effect the final arbiter of any interpretation of authority, including religious authority itself.
All three new laws, it should be noted, were issued by royal orders that were not based on decisions by the Council of Ministers or any other governmental body.4 Moreover, according to Article 83, only the King can amend these laws.5 Normally, the Consultative Council or the Council of Ministers has the right to propose amendments to existing laws. The new laws were issued directly by the king's office without consultation with other governmental bodies and without any public discussion. The king's decision not to consult with his full cabinet, with the existing Consultative Council or with the public at large, was probably meant to exclude any appearance of sharing of authority.
Rules of Succession
The Basic Law of Government strengthens the king's authority within the royal family. It confirms that the system of government is a monarchy and reserves the right to rule to the children and grandchildren of King Abdel-Aziz ibn Abdel-Rahman ibn Faisal al-Saud who founded the Third Saudi Dynasty in 1902 and ruled Saudi Arabia from 1902 until his death in 1953. Traditionally, the oldest of King Abdel-Aziz's sons was chosen by the family to rule and the next oldest to be heir apparent, unless either one declined the offer or was disabled. The Basic Law introduces changes in the rules of succession by allowing the selection of a king or crown prince from among the offspring of Abdel-Aziz on the basis of "suitability" (Art. 5.b) rather than seniority. In addition, the new law gives the reigning monarch unprecedented absolute authority over the appointment and dismissal of his heir apparent (Art. 5.c), doing away with the traditional role of the family in this decision. The law allows the king, for example, to choose as his crown prince a son or a nephew instead of one of his brothers who traditionally have been the only ones eligible for succession. While the Basic Law strengthens the hand of the King in the rules of succession, it is silent on the conditions under which the king himself may be legally removed.
The Basic Law completely overlooks the possibility of replacing a reigning monarch by one of his relatives, despite the obvious need for regulating such cases. In November 1964, King Saud was dethroned after a bitter intra-family power that for a while threatened to escalate into armed conflict. Following secret family meetings, a decision was reached by its senior members to settle the conflict by deposing King Saud and crowning his brother Faisal instead. For months afterwards, King Saud rejected the family's decision, relying on the absence of formal rules allowing the dethroning of a reigning king.
A Separation of Powers?
The Basic Law gives the impression that a separation of authorities is intended by its framers. Article 44, for example, states that "authorities are composed of a judicial authority, an executive authority and a legislative authority." However, while the new law states this composition, it in no way calls for separation between the three authorities. Specifically, the legislative and the executive authorities are both to be exercised by the King and the Council of Ministers.6 Although the Consultative Council is granted authority to discuss, interpret and, to a limited extent, propose laws, the enactment of laws is reserved for the Council of Ministers and ultimately to the King. Article 67 states that the exercise of this authority is governed by the Consultative Council law and by the Council of Ministers law. The new laws make explicit, meanwhile, that nothing in them may be interpreted as superseding or amending existing legislation.7 This means that the Law of the Council of Ministers is still in effect, a fact that is explicitly stated in Article 67 of the Basic Law. The 1958 Law of the Council of Ministers, as amended, is at the heart of the Saudi legal system. It grants near absolute authority to theCouncil, whose authority is checked only by the King who can veto any decision by the Council and whose decision is final.
As if the issue needed further clarification, according to Article 44 of the Basic Law, "the King is the supreme authority above all three authorities."
The Powers of the Council of Ministers
None of the new laws promulgated by King Fahd on March 1 restrains the power of the Council of Ministers or provide any formal check or balance. Its wide-ranging authority is defined by the Law of the Council of Ministers approved by royal decree No. 38 of May 11, 1958, and subsequently amended by royal decree in 1961, 1964, 1971 and 1975. Most of these amendments appeared aimed at solidifying the king's authority. For example, under the 1964 amendment the king became the president of the council.8 The King appoints and dismisses its members (Art. 8 of the Law of the Council of Ministers). There is no requirement that the choice be informed by consultation of any kind, nor is there known to be consultation in practice. The meetings of the council are secret and its decisions can be classified (Art. 15).
The mandate of the council covers all aspects of life in the Kingdom. Under Article 18 of the Council of Ministers law:
The Council of Ministers sets internal, external, financial, economic, educational and military policies, as well as other affairs of the state. The Council supervises the implementation of these policies. It has the legislative, executive and administrative authorities. The Council is the final authority on financial affairs...International agreements do not become effective until they are approved by the Council.
The Council's authority includes approval of draft laws, concessions and international agreements, which then come into effect after they are ratified by the King (Art. 19). It imposes taxes (Art. 29) and decides on the sale, lease or the otherwise disposal of government property (Art.31). It approves the annual budget and the development plan (Articles 28 and 37). In addition, "the Council of Ministers, as the direct executive authority, has complete control over executive matters. It has original jurisdiction to take any decisions it deems beneficial to the country..."(Art. 25).
The King exercises his authority in two ways: as president of the Council of Ministers, i.e. prime minister, and in his capacity as King to whom decisions by the council must be submitted for approval.9 In the present cabinet, King Fahd is the Prime Minister; his brotherAbdalla, the Crown Prince, is the First Deputy Prime Minister; and his brother Sultan, the Defense Minister, is the Second Deputy Prime Minister. Other princes occupying other important portfolios include Prince Nayef, the Interior Minister, who is also King Fahd's brother, and Prince Saud al-Faisal, the Foreign Minister, who is a nephew of the King.
In theory, the prime minister has significant but limited powers (Art. 44).10 In practice, since 1964 when the law was amended to combine the post of king and the post of prime minister, the office of the prime minister has exercised more pivotal powers than those envisioned in the law. That amendment was a significant step in the long trend towards centralization of authority and unchecked royal power. The new laws are the most recent examples of this trend.
The king exercises his veto powers independently of his position as prime minister. In those rare cases when the Council of Ministers makes decisions in the face of the King's opposition, or, more commonly, when he did not have a chance to voice an opinion because he did not chair the meeting when the decision was passed, the King can veto these decisions (Articles 7, 19 and 20). The Council cannot override a royal veto.11
In addition, the king has both legislative and executive powers that are separate from, and in many cases superior to, his authority as president of the Council of Ministers. Articles 55 through 62 of Basic Law of Government list some of those powers. Through a royal order (amr) -- to be distinguished from a royal decree (marsoom), issued pursuant to a decision by the Council of Ministers -- the King can introduce new laws, amend existing laws or reinterpret them. For example, during the first two months of 1992, the King issued eighty-nine orders, many of which introduced new legislation or amendment to existing laws.12 There is nothing in the newly-issued laws that puts limits or safeguards to royal authority. Instead of restoring the pre-1964 limited division of authority between the cabinet and the office of the king, the new laws appear to codify the post-1964 practice that has given increasingly more power to the King.
Article 70 of the Basic Law mandates that "laws and international treaties are issued and amended by royal decrees." By referring to royal decrees, rather than orders, the law appears to require a decision by the Council of Ministers before the King approves a law or a treaty. This provision is similar to articles 18 and 19 of the Law of the Council of Ministers of 1958, which gave the Council of Ministers the authority to propose legislation and approveinternational agreements. Although legislation and treaties did not become effective without the King's approval, that process allowed the cabinet to discuss important issues. In practice, however, these provisions enunciated in the Law of the Council of Ministers were routinely ignored as the King passed laws and amended them without first submitting them to the Council of Ministers. A case in point is the three new basic laws themselves. Given this long-standing practice, it is doubtful that the office of the King would abide by newly-issued law that implicitly requires consultation with the cabinet.
Under the Basic Law, members of the cabinet and all senior government officials occupying the top three ranks -- minister, deputy minister and the "distinguished rank" -- are appointed and dismissed by royal orders (Art. 58), without a vote by the cabinet or the consultative council. As the commander-in-chief of the armed forces, the King also appoints and dismisses officers (Art. 60).
The Consultative Council
According to royal order No. 91 of March 1, 1992, the Consultative Council Law will come into effect "within a maximum of six months." Since Saudi Arabia already has a council by the same name, the royal order stipulated that the newly formed council shall replace the existing body. The old Consultative Council, in place since 1926, will be reorganized under a different name by a royal order to be issued later.
The new Consultative Council will be composed of a president and sixty members -- all of whom are to be appointed by the King. The King will also issue an order specifying "all of the members' matters, including their rights and duties" (Art. 3 of Law of the Consultative Council).1 "When the position of a member of the Consultative Council becomes vacant, the King chooses a substitute who is appointed by a royal order" (Art. 7).
"The President of the Consultative Council, his deputy and the Secretary General of the Council, shall be appointed by a royal order. A royal order shall specify their duties and rights and all other matters concerning them," (Art. 10). Discipline of the members is also to be regulated by the King: "If a member of the Consultative Council is remiss in the fulfillment of his duties, his interrogation and trial are conducted according to the principles and procedures set forth by a royal order," (Art. 6). The bylaws of the Council specifying its functioning will also have to be approved by the king (Art. 29).2
Further emphasizing the king's unchallenged authority, the Consultative Council is required to operate "on a special budget approved by the King; its expenditure shall follow the rules set forth by a royal order" (Art. 27). All financial affairs of the council, including auditing and final accounting shall be run according to special rules set forth by a royal order, (Art. 28).
The term of the Consultative Council is four lunar years starting from the date specified in the royal order appointing the council. A new council must be formed at least two months before the end of the term of its predecessor. The law limits the incumbency of council members by requiring that at least half of them be retired and replaced by new members at the start of each term (Art. 13). While this clause may be presented as a liberal gesture, to prevent the perpetuation of an oligarchy, it could also give the king a handy tool to replace those members who show zeal in performing their duties or who may take their role too seriously from the viewpoint of the government.
The new Consultative Council will replace the existing council by the same name which was established in 1926 following the capture of Mecca by forces loyal to Abdel-Aziz ibn Saud, then Sultan of Najd. The fall of Mecca and the other holy places into the hands of the al-Saud loyalists produced an outcry in Muslim countries. Most Muslims considered the Wahhabi doctrines, which inspired the victorious warriors, heretical. But calls for internationalizing the holy sites were defeated by Ibn Saud during a hastily-arranged international Muslim conference in Jiddah. To preempt those calls, Ibn Saud had negotiated with the notables of Mecca the form of government they desired in exchange for their support for his rule. The 1926 Consultative Council was the result. Prince Faisal, the King's son, was appointed both viceroy for the western region and president of the Council. The Council members, however, have traditionally been commoners.
The old Council, like the new, was appointed. Members of that Council served at the pleasure of the king who had the right to "dissolve the Council or change all or some of its members at any time."3 Nevertheless, the 1926 Council was given limited but relatively significant powers. In several respects the old Council had more authority than the new will. The government was required to submit to the Council the budget, planned public ventures, new laws, concessions, and contracts for carrying out government projects.4 By contrast, no such requirement is envisioned for the new council. Similarly, heads of government agencies were obligated to attend the old Council's sessions when matters related to their departments were discussed by the Council, a requirement that is absent from the new Council.
Although in theory the old Consultative Council has more power than the newly proposed Council, it has never fully exercised them. Between 1926 and 1953 the Council developed some power as a consequence of the authority of its speaker, Prince Faisal, who was then viceroy in the western region of the country, serving as the head of both the legislative and executive branches of government. In 1953, however, most of the Council's legislative powers were transferred to the newly established Council of Ministers. The Law of the Council of Ministers of 1958 and its subsequent amendments completed the marginalization of the Consultative Council. In fact, until the March 1, 1992, royal order was issued to reorganize and re-name the old Council, few citizens were aware that it remained in existence.
There is nothing in the new Consultative Council Law to indicate that the new council will be more effective in practice than the old. Indeed, according to its law, the new council has been given very little authority to propose legislation, question officials and debate government bills. Nevertheless, circumstances may have changed to force the government to yield some power to the new council despite its limited mandate, if the appointed members are able to challenge the absolute authority of the King and his cabinet. However, it is difficult to imagine that such attempts would succeed without changing both the 1959 Law of the Council of Ministers and the 1992 Law of the Consultative Council, as well as the mindset of a government long used to absolute rule.
Whatever its makeup, the fact remains that the role of the Consultative Council is intended to be purely advisory. According to Article 15,
The Consultative Council expresses its opinions on the general policies of the state that are referred to it by the President of the Council of Ministers.5 In particular, the Council may:
a Discuss the general plan of economic and social development and voice its opinions on it.
b Study laws, regulations, concessions, and international treaties and agreements, and offer suggestions on them.6
c Interpret laws.
d Discuss annual reports submitted by ministries and other government agencies, and offer suggestions on them.
Article 17 makes the advisory nature of the Council explicit:
Decisions of the Consultative Council shall be submitted to the President of the Council of Ministers who refers them to the Council of Ministers to study them. If the Council of Ministers agrees with the Consultative Council decision, they are issued after the King approves them. If the two councils disagree, the King decides what he sees fit.
The right to propose legislation is also limited: "Any ten members of the Consultative Council have the right to propose to the president of the Council new legislation or the amendment of an existing legislation. The Council President shall submit this suggestion to the King" (Art. 23). No such restriction on proposing laws was imposed on the 1926 Consultative Council. Thus, in some ways, the new "reforms" can be interpreted as a backward step towards greater authoritarianism and unchecked executive power.
Even the authority to question government officials is delineated in a narrow fashion: "The president of the Consultative Council shall submit to the president of the Council of Ministers requests for the attendance of any government official at a Consultative Council meeting discussing areas of his competence"(Art. 22). The limitation of the council's authority to question government officials is in sharp contrast to the 1926 Consultative Council's authority to question heads of government agencies, who were required to attend if asked by the council.
Also restricted is the power to ask to examine government documents: "Requests to examine documents or statistics available at government agencies that the Consultative Council deems necessary for facilitating its work shall be submitted by the President of the Consultative Council to the President of the Council of Ministers" (Art. 24).
The Consultative Council cannot change these restrictive rules regulating its operation: "This law cannot be amended except by the same method it was issued," (Art.30). In other words, only through a royal order can these rules be changed.
Royal Order A/91 of March 1, 1992 under which the Consultative Council Law was issued makes clear that this new law must not be interpreted as superseding any existing law. Real power is thus still retained by the Council of Ministers, headed by the King, and ultimately, by the Office of the King.
As noted above, King Fahd dismisses democracy and free elections as unsuitable for Saudi Arabia.7 None of the new Saudi laws therefore envisions elections of any kind. All members of the Consultative Council are to be appointed by the king by September 1992. Under the new Law of Provinces, governors and members of provincial councils are to be appointed by the king by March 1993; local administrators are to be appointed by the Minister of Interior.
The absence of provisions for elections, of any kind, in the new legislation completes the long trend in Saudi Arabia towards the elimination of all vestiges of the electoral process that traditionally existed in several areas of public life. The 1940 Law of Administrative Councils, for example, mandated the election of members of administrative councils to be formed in the Kingdom's provinces (Article 29).8 Superseded by the 1963 Law of Provinces, the then-new law eliminated elections and instead gave the king the authority to appoint all members of provincial councils. The 1992 Law of Provinces continued this trend.9
Similarly, the 1939 Law of Municipalities and the 1942 Law of Municipal Elections both mandated the election of members of municipal councils in the country. Between 1926 and 1963, elections took place on a regular basis in major cities of the western region of the Kingdom. Subsequent to the adoption of the 1962 reform program, the government decided to extend the system of municipal elections to other parts of the country, including the capital city of Riyadh.
In 1963, however, after voters cast their ballots the government disregarded the results and announced that the system of elections was going to be revised and that new municipal elections would be subsequently held under the revised rules. The revision came fourteen years later, in 1977. The government issued the Municipalities and Villages Law No. 5 of February 10, 1977 which repealed the previous two laws (Article 49) and delineated the relationship between municipalities and the then-newly created Ministry of Municipal and Rural Affairs. Remarkably, although the 1977 Law strengthened the authority of the central government in municipal affairs, it nevertheless kept a limited form of election for members of municipal councils. Under Article 8, "The Minister of Municipal and Rural Affairs determines the total number of members of a municipal council, but that number shall not be less than four or more than fourteen, including in all cases the head of the municipality." Article 9 allowed for the election of half the members of a municipal council with the balance to be appointed by the minister. However, this law remained a dead letter. Since it came into effect, no municipal elections have ever been held. Revival of municipal elections was one of the demands of Saudi notables in a December 1990 petition.10
A recent report in The Nation (Dilip Hiro, "Saudi `Reforms': Too Little and 32 Years Late," April 13, 1992) inaccurately reported that the ten-point program called for the formation of a consultative council. There was no reference to such a body. The proposed reforms were part of the struggle at the time between Crown Prince Faisal (who was prime minister) and King Saud who wanted to keep to himself some of the powers of the council of ministers. As such, there was no dispute over the need for a new body; neither side wanted a consultative body with any significant power. After all, there already existed a consultative council since 1926 that the royal family had succeeded in marginalizing, long before the reform program was announced.
After King Saud was deposed in November 1964 and Faisal replaced him as King, the Law of the Council of Ministers was amended so that the king became ex officio the prime minister, underscoring the fact that the source of the difference was merely a power struggle and not principle, whether that of separation of powers or of the need to check the king's authority. Most of the proposed reforms, especially the call for a basic law, were abandoned, with one notable exception. During 1963 and 1964, slavery was abolished, as the government bought and emancipated the slaves, who had been owned mostlyby members of the royal family.
3 On November 2, 1964, King Saud was deposed and his brother Prince Faisal -- then crown prince and prime minister -- became king. On November 18, the Law of the Council of Ministers was amended so that the king is always the prime minister, thus allowing Faisal to continue as prime minister.
6 A royal order (amr), is a directive from the King's office. It is distinguished from a royal decree (marsoom) in that an order is issued without the need to consult with the cabinet or any other formal governmental body. A decree ratifies or amends a decision by the Council of Ministers.
4 It is also noteworthy that the ten-member drafting committee was headed by Prince Nayef, the Interior Minister, under whose supervision the security forces, including the police, the internal intelligence agencies and the immigration authority, operate. These forces are the same groups that are usually implicated in most human rights abuses in the Kingdom. It is probably not a coincidence that the new law are especially brief or totally silent on due process guarantees.
5 Article 83 of the Basic Law of Government: "This Law may be amended only in the same manner in which it has been approved." Similarly, Article 30 of the Consultative Council Law states: "This Law may not be amended except by the same method in which it was issued."
9 There are two major governmental departments through which King Fahd exercises his direct authority: the Office of the Royal Court and the Bureau of the President of the Council of Ministers. Through the first, royal orders are discharged and through the second department, his orders as primeminister are issued.
10 Under Article 44 of the Law of the Council of Ministers, "the President of the Council of Ministers directs the general policy of the state, provides direction, coordination and cooperation between ministers. He assures consistency and unity in the work of the Council...,orders notification of government agencies of the Council's decisions, supervises the Council, ministries and other government agencies. He supervises the implementation of laws and regulations issued by the council."
1 Article 9 requires that, "a member may not combine membership in the Consultative Council with any other position in the government, or in any other public or private agency or company, unless the King deems a need for this."
2 Aspects to be included in these bylaws include, according to Article 29, duties of the president of the council, his deputy and the secretary general; the manner in which its sessions are conducted; the method of voting; and rules of debate and discipline.
8 This law was issued by Royal Order No. 41/1/1 of February 22, 1940. In addition to elected members, Article 29 stipulated that representatives of government agencies with business to be discussed at a meeting of an administrative council be ex officio members at that meeting.