A $2 billion undertaking will codify Islamic law, make judges accountable
Written by Rob L. Wagner
The Media Line
Published Thursday, February 24, 2011
In 2009, a Saudi judge sentenced a Turkish barber Sabri Bogday to death for blasphemy, and in the same year Lebanese television personality Ali Sibat also received death for “sorcery.” Another judge, in Medina, refused to release a well-respected physician from the guardianship of her abusive father because the family’s tribal ties outweighed the woman’s right to be released from her father’s custody.
The three cases received a lot of media attention – in the case of the two death sentences enough attention that King Abdullah set them aside – but they are not unusual in the Saudi judicial system where a hodgepodge of justice provides little protection or appeal rights for criminal defendants and women in family court.
That is about to change. A plan to codify the country’s Islamic law and require accountability from judges is near completion, a Saudi sharia expert and former Shoura Council member told The Media Line.
“Soon Saudi scholars are going to implement the sharia according to the new drafts,” said Khalil Al-Khalil, who was a member of the Shoura Council when it started the reform plans in 2009. “These days qualified Saudi experts in sharia and international law are working on this new codification system and I believe it’s going to be shocking when it is announced.”
Most Saudi judges earned their postgraduate degrees in Islamic studies from Imam Mohamed bin Saud Islamic University in Riyadh. Few have formal legal training. Judges currently exercise wide interpretations of sharia more or less on an individual basis. Tribal customs, social pressure and regional differences heavily influence rulings, especially in domestic cases.
Derived from the Quran and the example set by the Prophet Muhammad during his lifetime, sharia encompasses laws addressing public issues such as crime and business as well as private ones, like hygiene, diet and prayer. Codifying it will not only eliminate tribal customs, but also shift judges’ responsibilities from interpretation to the application of the law.
Court officials, however, have complained that codifying sharia will alter it and dilute Saudi Arabia’s Islamic identity, opening the door to secularism. Abdulla Al-Shami, professor of comparative jurisprudence and Islamic Studies at The Petroleum Institute in Abu Dhabi, United Arab Emirates, insisted otherwise. “Codifying Islamic law has nothing to do with Muslim identity, but doing this [codification] will be more adherent and meritorious to the Islamic law,” he said.
Al-Khalil said the Shoura Council, Saudi Arabia’s consultative assembly, has made significant progress in judicial reforms. However, a timetable for completion hasn’t been set. The Council of Senior Ulama, the country’s top religious panel, endorsed codification of sharia in March 2010.
Saudi King Abdullah announced extensive judicial reform measures in 2007 with a budget of $2 billion. He hoped for five-year transition period before the new laws became effective. But the absence of at least 10,000 qualified lawyers and hundreds of trained judges has hindered progress on some aspects of reform.
Legal reform is perhaps the king’s most ambitious program in scope and lasting impact on Saudi society. The reforms call for expanding the kingdom’s appeals courts from two to all 13 provinces and establishing a Supreme Judicial Council, which is now in place, to take over responsibilities once belonging to the Minister of Justice.
The SJC now supervises training, judicial appointments and disciplinary issues of the kingdom’s 721 judges that serve a Saudi and expatriate population of 26 million. The SJC’s role significantly reduces the justice minster’s power. The minister previously approved all rulings by Court of Cassation. Now the court bypasses the justice minister and its rulings are final.
Reform measures receiving the most attention, however, are efforts to codify criminal law to serve as precedent for cases. Judges in theory will render consistent rulings under a codified Sharia in criminal, civil, and the domestic courts where women usually end up on the wrong side of rulings.
Al-Khalil said codifying sharia is “shocking” because “Saudi Arabia is perceived as the only Muslim country that seriously implements sharia.” A codified sharia could serve as a precedent for other Muslim countries that use sharia in varying degrees to implement justice.
Al-Khalil said the Shoura Council made “major changes” to Saudi laws following a review of the judicial system over three years. He said most Islamic scholars believe the codification and sharia are compatible.
“Codifying the judicial system is allowed in the Islamic sharia,” he said. “Nowadays, the majority of Saudis and Muslims think it is a necessity to codify Sharia so it can be understood and reviewed. Judges can be held accountable for their rulings. Accountability is a very important issue when it comes to rulings.”
Al-Khalil and Al-Shami said codifying sharia is rooted in the Ottoman Empire.
“Islamic law can be codified, and has already been codified during the Ottoman dynasty,” Al-Shami told The Media Line. “Many Muslim countries did the same as seen in Yemen and United Arab Emirates. Although a codified sharia is nearly ready for implementation, the kingdom is still struggling to find qualified judges and deal with resistance from current judges who believe only they can interpret Islamic law.
Perhaps the face that best represents the judicial system’s old guard is the Saudi courts’ chief, Sheikh Saleh Al-Lohaidan, who gained notoriety in September 2008 for demanding on Al-Arabiya television that satellite television owners should die for airing “immoral” programs during Ramadan. The Saudi government fired Al-Lohaidan four months later as part of the king’s effort to bring sheikhs more in line with the government’s new policies on jurisprudence.
The Saudi government also forced Sheikh Sa’ad Bin Nasser Al-Shethri from the Council of Senior Scholars to step down following his criticism of co-educational policies of the King Abdullah University of Science and Technology. The government then reassigned Justice Minister Abdullah bin Ibrahim Al Al-Sheikh in favor of the reform-minded Mohammed Al-Eissa, a former deputy director for a tribunal that settles commercial contract disputes. Also heading reform efforts is Sheikh Ibrahim Al-Huqail, the former chief of the Saudi Board of Grievances.
A Saudi lawyer, who spoke on the condition that he not be identified, said the religious conservatives’ resistance to change is the primary roadblock to full implementation of a codified Sharia.
“The conservatives think that any change to the way Sharia is implemented means liberal modernization and modernization is a western influence,” said the lawyer who practices in Jeddah. “I sincerely hope the government pushes them to the sidelines and move as fast as possible so we can have a real judicial system.”
Al-Shami said Saudi judges should embrace Western legal concepts because the foundation of the world’s penal codes is in the Ten Commandments of Moses. Sharia, he said, is a direct descendant of the laws appearing in the Pentateuch law, or the Five Books of Moses.
“I do recommend the Saudi judges to be trained in Western law, to gain more experience in commercial property law as now practiced in most countries,” he said. “And also, I would recommend the West to do the same training in Muslim courts.”