Saudi Arabia, Asharq Al-Awsat – Asharq Al-Awsat speaks to Saudi Minister of Justice Mohammad al Issa. The interview proceeded as follows:
Q) One of the reform projects adopted by the Custodian of the Two Holy Mosques King Abdullah Bin Abdulaziz is the development of the judicial system. What progress has been made in this regard?
A) We are still in the early stages. We have formed a task force to complete this project and we have high hopes that we will achieve positive results as soon as possible. This is particularly with regards to the role of the judiciary that will begin renting [buildings] as an immediate solution but will then build courthouses following the model of the judicial cities and their architectural diversity that enable an individual to identify a courthouse from its exterior, as well as identifying the type of court, and the court’s jurisdiction. The [architectural] blueprints to be used for these courts are ready. Also on the agenda is the implementation of the decree of the Custodian of the Two Holy Mosques, namely to improve the judicial and administrative infrastructure, and the [justice] ministry has several options for drawing up strategic plans.
Q) Can you tell us about some of these options?
A) We will be seeking the assistance of think tanks in drawing up most of these plans. At the moment we’re in contact with some think tanks including international ones.
Q) What about the schedule for the construction of the headquarters of the specialized courts established under the new judicial arrangement?
A) We are currently in talks with a large national [construction] corporation [on this issue] and we have reached an initial agreement to proceed with the construction of these courts which we expect to take approximately three years.
Q) Which issues have been given priority following your appointment to the head of the Saudi judicial system?
A) First and foremost we must put the executive structure of the [new] judicial system in place and to find solutions to the problem of the delay in judicial decisions being made, even if this problem is limited in scope, so that we do not suffer from this except in large cities and with regards to specific cases, the nature of which require a long length of time [to resolve]. We are not the only ones with this problem [of delay], a few years ago France was issued with a provision from the European Court of Human Rights…based on the tardiness of the French courts. [Therefore] yes, there are delays, but this is a common issue experienced on a global scale, and we are seeking to address this in the knowledge that what some consider delay is in fact a natural length of time for a case to be considered, especially with regards to cases that do not require urgent decisions.
Q) It is possible that one of the main reasons that people do not join the judiciary is the fear of injustice while there are others who say that the low salary awarded to judges is one of the reasons that people do not want to enter the judiciary. Are there any studies to improve judicial salaries?
A) We will address this problem in the future, God willing, through the existence of rules for the selection of judges provided by the new [judicial] system and under the purview of the Supreme Judicial Council. Judicial salaries, allowances and benefits may be studied in the operational regulations for judges under the new system.
Q) The new judicial development stipulates establishing specialized courts, for example, one court will specialize in civil cases. Are these specialized judicial courts expected to result in non-Islamic laws and judges?
A) The judicial system is clear on the conditions of who can become a judge; these conditions include obtaining a certificate from a Saudi Islamic Shariaa law institute, or an equivalent award, in which case they must pass a special examination. Judges must also now gain a postgraduate law degree [in non-Islamic law].
Q) You previously said that there would be no specialized traffic court under the [new] judicial system, although there are indications that this type of court is required. What are the reasons for this?
A) The new judicial system has been named specialized courts, and does not include a traffic court, for this issue is sufficient to be tried in general court…especially since traffic cases are not a huge phenomenon in court, contrary to civil, commercial, and labour cases. But if the time comes for the establishment of a new [specialized] court, such as a traffic court, this will take place after there has been a royal decree and then be implemented by the Supreme Judiciary Council.
Q) What is your initial analysis of the judiciary after becoming Minister of Justice? What are the strengths of the Saudi judiciary? What are its weaknesses? What has hindered its development?
A) We urgently need to codify judicial decisions, and a royal decree was issued in 2005 to adopt this idea, and there is – praise be to God – active and serious implementation of this in accordance with the provisions of Islamic Shariaa. It is compulsory for judges [to follow this code] unless the judge sees something that requires him to interpret matters differently, in which case he must give his reasons for this. It is then up to the Court of Cassation [Appeals] to support this provision or not. Cases such as this more often than not end up in front of the Supreme Court, which is a court for systems and principles, rather than a court to try cases. If the Supreme Court approves the judge’s interpretation of any of these codified laws, they must then be included in the text of the codified law as a secondary indicative guide. The judicial system has prepared a process to clearly resolve this, and so a judge’s decision is final and correct unless it is appealed at the Supreme Court [and overturned].
Q) Was this process of resolution to which you refer present under the previous system?
A) Yes, it was present, but it was difficult to implement properly due to the presence of two Courts of Cassation [Appeal], one Court of Cassation in Mecca, and another in Riyadh. As for now, there is a unified Supreme Court, and there can be no doubt that this will avoid the former gap [between the two separate courts] and so we are fully confident that this [Supreme Court], God willing, will fulfil its duty fully.
Q) Saudi women have begun to play an important role in society with regards to many issues, but they seem to be completely absent from the judiciary, despite the fact that the need for women to play a role here is stronger now than at any time before. What is your opinion in this regard, in particular since female lawyers eager to work in the legal sector have begun to appear, and female Shariaa graduates may benefit from this?
A) There is a study that is on the verge of being completed and that will be presented to the King within the next three months, that is, before the month of Ramadan.
The main topic of this study is to look at the possibility of issuing women permits to open legal and Islamic Shariaa consultation practices in order to fill the niche for specialist female practices to which Saudi women can take their legal problems. In reality there are many women who are compelled by circumstance to go to law firms that are run by men, this has resulted in many women not receiving their full [legal] rights and losing their cases because of their inability to personally appear before a judge. The study also proposed the option of granting women a lawyer’s license as long as they only defend female clients. Since a woman is entitled to defend herself in a court of law, then, consequently, she has the right to a female lawyer. This might be restricted to cases of personal status where confidentiality is required between the client and the lawyer; and this would be difficult to have if the female client’s lawyer is a man. If the only benefit of these women-run firms would be to end all sorts of disputes and litigations between women in a court of law, then that would be an advantage.
The ministry has been receiving cases calling for emergency treatment amid the absence of a female role in juristic and standard consultation as well as specialized legal practice. We are facing circumstances and facts that have to be closely examined in order to come up with solutions. The profession of a woman lawyer, which has been governed by certain conditions as the study pointed out, will not be a career for women among a much wider circle of men, or else that would challenge the permissibility granted to them in defending themselves. By taking upon themselves the duty of defending clients from their own gender, these women lawyers would be carrying out an excellent job for which they will be rewarded by God, particularly as they would be practicing it under regulations pertaining to the entrance of women to a court of law whether as lawyers or clients.
This is a necessity that ought to be seriously taken into account, mainly after the need for addressing this situation has become increasingly pressing, on account of the natural and ever-growing spectrum of issues in general, and women’s issues in particular. The abovementioned study suggested restricting this proposal to personal status lawsuits as I said earlier, simply because the proceedings of personal status legal actions take place in non-open courts in most cases. A fact that would guarantee privacy for all female parties present in court: the judge, the plaintiff, the defendant and the witnesses if there are any. This would consequently lead to the serving of the required juristic interest without any trouble.
Some judges and academic students have written to us stressing the importance of such a proposal and urging us to embark on a rapid implementation owing to the problem they have encountered that must be dealt with swiftly. This is because it is a vested and religious right for all women to defend themselves. As I said, it is a study that is under final examination. We would appreciate it if people contributed and interacted with us by sending their opinions in an email to me: [email protected] or to the office mail: [email protected]
We just hope this study would be accurate and complete so as to be brought before the King very soon, God willing, in order to receive instruction on it.
Q) So what are the chances of a woman becoming a judge in Saudi Arabia; is this possible or impossible?
A) The answer goes beyond possibility or impossibility; we all know that some countries that do not follow Islamic Shariaa do not have female judges even today. In many countries there are only a few female judges in comparison to male judges, for well known reasons. It’s not due to any fault in women and does not reduce their importance. Only a short while ago we decided on the possibility of women becoming lawyers, which is an important profession, and takes into account scientific and mental potential, and other skills.
Q) What do you mean by well-known reasons?
A) I mean the natural condition of women, and the family role that a woman plays that men are unable to fulfil. I am talking about the clear physiological differences between a man and a woman. This is why some countries that are not governed by Shariaa law do not have any reservations with regards to their reluctance to allow women to become judges.
Q) The Ministry of Justice has recently begun to involve itself in internet technology and is looking at the internet court system. How far has this project gone?
A) It is still in the early stages and we are seeking to unite efforts to reach positive results as soon as possible, and we hope to witness the birth of this court in the near future, which is a dream for all. This mechanism reduces the time and effort and simplifies procedures in a way that until recently would have been considered imaginary, and we will start, God willing, from where we left off with regards to this technology, and we promise everybody an unprecedented shift in this area, with all transactions being computerized.
Q) There have been many questions raised about the extent to which [legal] pardoning protects the community from the actions of criminals who are given light sentences, and released after serving only half their sentence. What is your comment in this regard?
A) There are procedural and Islamic Shariaa conditions that come with pardoning that take all of these things into account. For example, pardoning does not apply to those who have criminal records or those that have committed serious crimes, nor does it apply to those involved in private cases [between individuals]. Pardoning takes into account rehabilitation and gives an opportunity to those who will potentially benefit from a pardon.
Q) What is the role of the judiciary and the Judicial Council in the judicial system?
A) It is a complimentary role; the Judicial Council covers judicial affairs with regards to judicial appointments, promotions, transfers, leave and other issues. Its [direct] relationship with judicial proceedings [i.e. court cases] ended with the inception of the Supreme Court. The Judicial Council also oversees the judges, courts, and their action, but without compromising the judge’s independence or ruling. The Ministry of Justice [on the other hand] is in charge of the administration and budget, as well as operational management, oversight, and development of the [entire] judicial system.
Q) But what kind of supervisory work is undertaken by the Judicial Council regarding judges, the courts, and their actions?
A) Let me clarify this. The preparatory work for this system was undertaken by the [Saudi] Bureau of Experts for the Council of Ministers who studied this issue and discussed the drafting of a provision for the oversight of the judiciary and the court system via judicial inspection after the jurisdiction of this was given to the Judicial Council. The Judicial Council benefits from this by finding a balanced equation with regards to the establishment of courts and the number of judges in each court, and the creation of an information database on judicial decisions. But the technical aspects of the judiciary and the supervision of this fall under the jurisdiction of the Supreme Court.
Q) Do you believe that the alternative judiciary system can solve the problem of in prison overcrowding, and to what extent does the project [for solving this problem] apply to the courts?
A) This project is interesting, and is under consideration by the ministry, and God willing we will hold a symposium on this issue in which we can explore the Islamic Shariaa law provisions, practical experience, and political theories on this issue, in order to achieve a set of recommendations.
Q) A number of cases have been made against a group of court secretaries who were accused of manipulating court documents. Where has this case reached and what penalties will they face?
A) A court secretary is a position of trust, a position similar [in this regard] to that of the judge in the judicial system. This case is an exception; it is not the norm…and the number of court secretaries who are accused [of this] is very small. The judicial regulation system has shown the details of who is responsible administratively, criminally, and disciplinarily. From another standpoint we have looked at the operational method of court secretaries throughout Saudi Arabia, and this method will help in an exchange of experience and to give an opportunity for all, along with avoiding the deficiencies of some court secretaries in certain places.
Q) Do you believe that the registering of land boundaries and property by the government will eliminate the manipulation of borders and property?
A) Yes, and we hope to contribute to this system in order to address these problems, it is all a matter of timing.
Q) Has this system [of registering land boundaries and property] begun?
A) Operation in this system will begin but we need some time. The prevailing belief that the ministry will be able to implement this without benefiting from local and foreign experience is incorrect. This is a model system, and efforts must be concerted [to implement this] otherwise it will not work. After this system is implemented it will not only serve the ministry, but will also serve as a reservoir of information and an important source [of information] to the public and private sectors. This project will take some time and money [to implement], however this is an investment in the system that will be successful by all standards, and will be, God willing, a qualitative shift that will result in an improved documentation system, to the point that others will wish to emulate it.
As you can imagine this system will allow for the collection of data and information with regards to who owns the land, its boundaries, satellite images of the land, as well as copies of all the relevant documents, and records of all the previous transactions with regards to original maps for each city, country, or governorate in Saudi Arabia. The benefits from this system are that these detailed maps will include, for example; buildings, services, streets, regulatory figures, the land boundaries, waterways, and network of roads, and land uses. This will be beneficial due to the ease of accessing, modifying and updating information, as disseminating this information to real estate offices for a certain fee, which will allow for live information to be accessed at any time…which will clearly contribute to economic growth.
Q) You have recently disclosed your decision to grant lawyers the power of attorney [in Saudi Arabia]. What are the reasons that led you to take this step?
A) This is designed to motivate the lawyer’s role in society, and it is no secret that this will improve the private sector’s participation in the documentation system that accepts the nature of this [power of attorney], particularly the lawyers who are at the front line of the judiciary, and our partners in the pursuit of justice.
Q) How do you assess the development of the legal profession in general in Saudi Arabia?
A) Praise be to God, the legal profession is taking active steps towards excellence, and it must be supported.
Q) In Saudi Arabia recently, a number of legal cases have been brought to light at the regional, national, and international levels for example the case of the Qatif Girl and the cases of [disputed] lineage. What are the reasons for this? Is there a mechanism to deal with this?
A) The media gets excited at such cases at the expense of an objective approach. It is what turns them into issues of public opinion. Often behind this are a number of unprofessional editors who receive news and information from unreliable sources. It is not for the media that has a viewpoint and objective [to do this] and causes an artificial glare [on these issues]. The system to deal with this issue will focus upon data and feedback that will be dealt with by the [Justice] Ministry’s spokesman. This spokesman will have the ability to deal with the media and speak English well in order to communicate with the foreign media in the event of judicial proceedings if there are issues that affect the judiciary in the Kingdom.
Q) What are the main obstacles that hinder rulings issued by the Saudi Judiciary?
A) There are almost no problems in this regard. Soon, God willing, however, there will be a system for implementing rulings and this includes the best implementation and formulation of laws that can be reached. A key feature in the anticipated system will be assigning the all the operational tasks to an executive judge. This system grants the executive judge more authority including the right to issue travel bans and ban the use of public services. The system, moreover, activated the theory of disclosure and decreased sentencing on the grounds that the executive judge has sufficient procedural laws to handle defendants, in addition to a number of important provisions that have tightly controlled means of procrastination in the implementation of this system. In the administrative judiciary whenever we notice that operations are being stalled by certain bodies we think of what [Alexis de] Tocqueville said: “If the legal system in France is required and indispensable, then arbitrariness would seek refuge in the execution.” This is true but it rarely happens here. I recall that some of parties delayed the implementation of a ruling issued by the Board of Grievances and tried in vain to seek refuge in the King who decided that the ruling would be implemented, committing those authorities to execute the judgment without an appeal.
Q) You mentioned the administrative courts; have any privileges that go against the law been given to some government bodies after going to court?
A) No, none at all.
Q) Do you endorse granting privileges in the form of legal immunity to government bodies on the basis of sovereignty and non-liability?
A) Perhaps you are referring to the rulings issued by judicial councils and committees of judicial jurisdiction. These rulings have been granted immunity by the state in a court of law and there is good reason for this. Firstly, these rulings are issued by supreme judiciary councils that enjoy absolute guarantees. Secondly, these councils were originally formed so that their rulings would have the power of irrevocability. The new judicial system does not have jurisdiction over these councils. We must distinguish between that and acts of sovereignty that the administrative courts cannot deal with whether in our country or in any other country. These are considered special cases that take into consideration the general welfare through initiatives that are by far above any intention that might not take into account the well-being of the nation.
It is common knowledge that acts of sovereignty bear a special significance whether in the sphere of international relations or internal affairs. Therefore, it is not in the common interest to have these acts heard in a court of law, as that would call for open trials and investigations, especially as sovereign decisions, in most cases, would have very good reason and would be considered by the supreme interest of the state unsuitable to be displayed before the public. Consequently, and by virtue of this justification, we can argue against the famous saying by the jurists of administrative causes who claim that the theory of sovereign acts is a stain to legitimacy. This is totally untrue. Reality as it is and the interests of states that serve their nations reject this claim completely.
Judges within the administrative courts who have experienced these matters first-hand believe in the truth of what I say. There is a basis for this in the Islamic Shariaa. The guardian is considered the chief justice and the source of all authorities including the judicial authority. It is not befitting that his decision would be open to re-examination by protesting it in a court of law because this contradicts the chain of authority and the tenet of hearing and obeying. Therefore, it is correct to say that Islamic Shariaa is more supportive than other creeds of the theory of sovereign acts, unlike some might think. We must know that the scope of sovereign acts is very narrow as it is limited to the domain of administrative decisions only. It is inconceivable that contracts or compensations be subject to the jurisdiction of sovereign acts. The only authority that has the power to say whether an act is sovereign or not is the judiciary. There is no standard definition or regular list of sovereign acts. Though criteria vary in considering whether an act is sovereign or not, there exists a criterion that cannot be disputed, namely anything that poses a threat to internal or external security, or the country’s reputation and its position in the international community. A keen observer of the administrative courts’ rulings in the Kingdom of Saudi Arabia would see that it is rare to issue rulings in this respect.
Q) You stated recently that there a mechanism will be set up to handle the issue of the marriage of minors. Can you tell us about this?
A) Regulating the marriage of minors falls under the ministry. The ministry has the discretionary authority to undertake any necessary measures that are likely to serve the common interest and ward off corruption in light of the provisions of Islamic Shariaa, especially as there is no general system governing this matter. Special instructions with respect to marriage officials are issued by the ministry but since this issue is not a public matter then it must be referred to the King for further instruction.
To be honest, the ministry has suffered a lot in this regard. The rate of divorce is very high, it is disturbing. According to initial surveys, age difference has been marked as a major cause of divorce. Another relatively prime cause of divorce has to do with the marriage of female minors, even if the age difference is not so big.
It is common knowledge there is no correlation between obligatory rulings and positive law. There are scholars who prohibited marrying off female minors, especially in this day and age in which parents or guardians have become vulnerable to temptation and, as a result, there have been regrettable cases. Moreover, religious rulings according to precise settings vary with the change of time, place, conditions and outcomes.
I recall that Sheikh Mohammed Bin Uthaiman, may he God rest his soul, ruled that fathers should not marry off their daughters until they had reached puberty and they should be asked for their opinion on the matter. He ascribed this fatwa to the fact that some fathers have lately developed a tendency to sell their daughters to the highest bidders and some of these poor girls felt that they could do nothing but commit suicide to escape these forced marriages. Sheikh Bin Uthaiman, may God rest his soul, also said, “There is no objection to people marrying off girls who are yet to reach puberty,” as Omar Ibn Al-Khattab, may God be pleased with him, prohibited the return of the husband to his wife if he divorces her three times in one session, though it was deemed permissible for the husband to return to his wife even if he had divorced her three times in one session at the time of the Prophet (PBUH) and at the time of Abu Bakr and over a span of two years during Omar’s caliphate.
Furthermore, Omar prohibited the selling of women with children. If a man engages in sexual intercourse with a female servant and she gives birth to a child, she becomes the mother of that child officially. During the time of the Prophet (PBUH) and the time of Abu Bakr, may God be pleased with him, women with children were sold. But when Omar saw that people had grown not to fear God, and that they were so coldly willing to separate a mother from her child, he decided to prohibit the selling of women with children. Omar, may Allah be pleased with him, also dropped the punishment for theft during the year of mass famine.
What is important here is that obligatory ordinance has not changed. But there are hindrances that ought to be taken into account. Among the available options, other than the issue of puberty is banning marriage to those under 18. When a girl turns 18, she becomes more mature and more capable of calculating the consequences of her actions. But a girl who is under 18 would most probably be unable to shoulder the responsibility of starting a family, particularly after giving birth at that age.
It is worth mentioning that Islamic Law has given much attention to the institution of marriage and is keen on building it on solid foundations.
Last but not least, there are religious edicts that allow for the marriage of female minors and these are fatwas that we must regard with respect and appreciation. They were issued by scholars who were learned in jurisprudence. But as we said earlier, these fatwas are mainly concerned with unquestionable obligatory ordinances. It is well-known that the debate of jurists over this issue has been focusing on its actual permissibility. The debate does not touch on the issue of benefit and mischief.