Part 4: Organization of the Saudi Judiciary
In 2005, as Saudi Arabia was negotiating its accession to the World Trade Organization with US backing, officials announced a significant restructuring of the judiciary by instituting specialized courts, codifying elements of a penal code, and moving towards institutionalizing rules of precedent. The primary focus of a new Law on the Judiciary, finally published on October 1, 2007, lay in the restructuring of the court system. The government hopes to speed up cases and ensure fair and equitable results through the new judicial system having specialized courts in labour, commercial, domestic law and criminal cases, one reporter wrote.428
Under the new, amended Law on the Judiciary, the old Supreme Court, the Supreme Council of the Judiciary, loses its powers of adjudication and becomes responsible for appointing judges and inspecting their work. The judiciary law expands the number of courts of appeals from two to 13 (one for each region) and establishes new courts:
The king announced a budget of $1.8 billion for building the new courts and training new and old judges.430
The new Law of the Judiciary of October 2007 nominally granted the courts greater independence. It cancelled a provision in Article 20 of the old Judiciary Law that allowed the executive to interfere directly in judicial proceedings. If the minister of justice does not approve of a decision by the Court of Appeals,
The new law also gives the Supreme Judicial Council powers to supervise courts and promote or discipline judges, which had previously fallen to the Ministry of Justice. The office of the inspector of the judiciary was also moved from executive control under the Supreme Judicial Council.432 Despite these improvements, the judiciarys independence remains insufficiently protected. The Ministry of Justice maintains financial and administrative control over the judiciary, and the king appoints the heads of the Supreme Judicial Council (of which the chief prosecutor and a representative of the Ministry of Justice are ex-officio members), and of the Supreme Court.433
Changes to the court system were in part inspired by the high caseloads of judges. Al-Hayat newspaper quoted the Justice Ministrys legal adviser Ashraf Siraj as saying that each judge has between 15 and 20 cases on his docket every day.434 A 2003 study of Saudi Arabias judicial structure observed that the number of judges per hundred thousand citizens is 4.2 in the Kingdom, whereas it is 27.76 in Egypt, 41.77 in France, 43.5 in Germany, 55.17 in Britain and 22.8 in the US.435 Saudi Arabia has just 662 active judges working in over 266 courts for a population of 21 million, in addition to an estimated 5.5 million legal and up to several million undocumented foreigner residents.436 By far the two busiest jurisdictions are Riyadh and Mekka, which includes Jeddah. In the hijri year 1426 (2005-6), 18 judges in Riyadhs Summary Court considered 26,298 cases, averaging 1,461 cases per judge per year. Of these cases, 9,837, or 37.4 percent, were criminal cases, and judges issued a verdict or decision in 6,376 cases.437 Prior to the new law the countrys only two appeals courts were also located in Riyadh and Mekka.
Until the new courts become functional, Saudi Arabia will retain its current structure of courts of first instance, general courts, and two appeals courts. Summary (also known as Lesser or Partial) Courts take on criminal cases and civil cases where the disputed amount is below SAR 20,000 ($5,400).438 General Courts, or Greater Courts, take on a limited number of criminal cases involving hadd and qisas punishments. Under the new Law of the Judiciary, the Summary Courts will become criminal courts, and the General Courts will become civil courts.
Many Saudis, including high officials, told Human Rights Watch that stresses on the judicial system, such as the high caseloads, resulted from the increase of foreigners working and living in the kingdom. Ministry of Justice statistics tell a different story: Saudis commit more crimes than foreigners in all Saudi regions and in almost all categories of crime, with very few exceptions (in Mekka and Jazan, foreigners commit more thefts).439 The number of cases reaching Saudi courts peaked in 1424, declining by 5.2 percent in 1425 and again by 6 percent in 1426, while the number of foreigners has not declined.440
Prior to 2000, the king could appoint any person deemed to have sufficient qualifications to the position of judge, whereas today the king can only appoint judges who have trained at the High Judiciary Institute. Former judge Abd al-Aziz al-Qasim told Human Rights Watch that judges receive three years training on the job, during which they perform administrative tasks, without substantive legal training. After that, they are appointed as assistant judges (qadi mulazim) and are usually posted to a position outside the big cities, where they begin to adjudicate cases. Al-Qasim said that supervision over judges work is only pro forma, not substantive. There is an inspector who every year will conduct a review of verdicts, but only along formal lines.441 The High Judiciary Institutes president, Zaid Abd al-Rahman al-Zaid, told Human Rights Watch that of the 100 current students at the institute, 70 were assistant judges, the remainder being individuals who had an interest in pursuing further education in the institutes two main areas of study, comparative jurisprudence and Sharia public policy (siyasa sharia).442 Under a new Cabinet order on judicial training, al-Zaid said, judges are appointed assistant [mulazim] judges, spend two years in the institute where they obtain a Masters degree, and then do one years practical training. They do not work as judges throughout those three years, whereas previously they could work as judges right away during their three-year practical training.443 Arif al-Ali, a professor at the institute, told Human Rights Watch that in 2006 the institute added a new comparative law course that touches on human rights. Among the topics studied under the two courses Introduction to Regulations are international human rights treaties and their implementation.444 Al-Zaid added that students also study comparative law, including Egyptian and French civil and criminal codes.445
While no women studied at the institute, al-Zaid saw no legal barrier to their future participation, but explained instead that, the facilities [for ensuring segregated instruction] are not there.446 Regarding the absence of Shia students studying at the institute, al-Zaid explained that instruction touches upon all four Sunni and two Shia schools of legal thought, but that there are no Shia who study here.447 The two Shia courts in Saudi Arabia handle chiefly cases of marriage, divorce, inheritance for up to two million Shia Saudis in the Eastern Province, but do not have jurisdiction over criminal or other civil cases. Al-Zaid said that the institute was the oldest judicial training institute in the Arab world, founded in 1965.448 Al-Zaid did not answer a question regarding the geographical provenance of students. Najran and the Eastern Province are home to most of Saudi Arabias Shiites, and the Western Hijaz has not traditionally followed the Wahhabi Hanbali jurisprudence. Critics frequently accuse the judiciary of recruiting only from Qasim and Riyadh provinces, the historic Wahhabi heartland. One critic remarked, For every 25 judges from al-Qasim, there are 24 from Riyadh, and one other one. But we cannot question discrimination.449
According to one source, the number of judges has more than doubled from 900 in 2002 to 1,844 in 2006. Ministry of Justice statistics listed 662 active judges in 2005/2006 (see above). To reach the average ratio internationally for the number of judges per 100,000 persons, the kingdom would require over 5,200 judges.450
428 Sabria S. Jawhar, Specialization, legal precedent to make a difference in courts, Saudi Gazette, April 4, 2005, republished as Saudis Introduce Legal Precedence in Sweeping Judicial Reforms, Global News Wire - Asia Africa Intelligence Wire, reproduced in BBC Monitoring/BBC , April 4, 2005.
429 Law of the Judiciary, art. 11, published in al-Watan, October 3, 2007.
430 Tariq Alhomayed, The Judiciary is the Gateway to Reform, Asharq Alawsat (English Edition), October 3, 2007, http://www.asharqalawsat.com/english/news.asp?section=2&id=10420 (accessed October 18, 2007).
431 Law of the Judiciary, art. 20.
432 Human Rights Watch is grateful to Saudi criminal law expert Dr. Abdullah Fakhri Ansary for additional comments on the new Law of the Judiciary.
433 Ibid., arts 71, 5, and 10.
434 Saud al-Tayawi, 20 Cases Daily for Each Judge, and 745,000 a Year, Because of the Population Increase and its Expanding Usage [رقعة] in Our Country, al-Hayat, October 9, 2006.
435 Ibrahim Al-Esa and Abdullah An-Nassiry, The Legislative and Judicial Structure in the Kingdom of Saudi Arabia, Executive Summary, December 25, 2003. The study was prepared in light of Saudi Arabias negotiations to join the World Trade Organization, which it joined in December 2005.
436 Ministry of Justice, Book of Statistics, 2005-2006, http://www.moj.gov.sa/Layout/showpage.asp?art_id=377 (accessed April 24, 2007), pp. 5 and 12.
437 Ibid., p. 76.
438 Human Rights Watch interview with Yasir Khuja, December 11, 2006. The law cites the value as SAR10,000. Law of Procedure before Sharia Courts, art. 31.
439 Ministry of Justice, Book of Statistics, 2005-2006, p. 14. Foreigners legally and illegally residing in Saudi Arabia make up roughly one third of the population. Foreigners are predominantly young adult workers, and mostly male, which would put them in the categories of those most likely to commit crimes, whereas over half the Saudi population is children under age 18. Also less likely to commit crimes are the elderly, and Saudi women whose movements are severely restricted.
440 Ibid., p. 16.
441 Human Rights Watch interview with Abd al-Aziz al-Qasim, December 6, 2006. He lost his judgeship for his membership in the Committee for the Defense of Legitimate Rights.
442 Human Rights Watch interview with Zaid al-Zaid, university professor, Riyadh, December 19, 2006.
444 Human Rights Watch interview with Arif al-Ali, university professor, December 19, 2006. Al-Zaid provided Human Rights Watch with a course outline for the human rights module. It contained, among other subjects, UN human rights treaties and the Special Procedures of the UN Human Rights Council.
445 Human Rights Watch interview with Zaid al-Zaid, December 19, 2006.
447 Ibid. Al-Zaid clarified, The two Shia judges in the two Shia personal status courts in Qatif and Hofuf must have been appointed before the time of the High Judiciary Institute, when the king could appoint judges who had not undergone training at the Institute.
449 Human Rights Watch interview with Zhafir al-Yami, lawyer, Riyadh, November 30, 2006. Al-Yami is an Ismaili Shia originally from Najran.
450 Hamad al-Jumhur, New and Complete Laws Covered Litigation Procedures in All Branches. The Judiciary in King Fahds Era Enjoyed Special Attention Represented by the Completion of the System of Judicial Laws, al-Riyadh, August 8, 2005, http://www.alriyadh.com/2005/08/08/article86249_s.html (accessed August 7, 2007). Musa bin Marwa, Global Average Is 26 Judges for Every One Hundred Thousand and in the Kingdom Only Four. Number of Judges Raised to 1844, and Saudi Needs 5213, al-Watan, October 31, 2006, http://www.alwatan.com.sa/daily/2006-10-31/local/local01.htm (accessed August 7, 2007).