The Constitutional System of Saudi Arabia

19 mins read
Source: CBN – The Quran and the Sunna are the primary sources of the Saudi Constitution

The Kingdom of Saudi Arabia has long been regarded in the Arab world as an exemplum of the complex and intertwining relationship between tribal manners of governance, Islamic Law, and Western-like, rather ornamental, institutional practices.

Introduction 

The early stages of the Saudi Arabian State date back to the mid-eighteenth century, at a time when Central Arabian tribes attempted to obtain greater independence from the Ottoman Empire. The political effort carried out by those tribes soon turned into an attempt to unify the region under a single authority, which had to be distinct from the Ottoman one.

However, it was only with the rise of King Abd Al Aziz and through his military successes that the Saudi Arabian State was formed (1902-1930)[1]. On a legal level, the first ruler of the Saudi dynasty convened a constituent assembly shortly after his inauguration as “King of Hijaz”. The primary purpose of this Assembly, whose members were chosen by secret ballot, was to legitimate the political dominance of the Saud family. Notably, the Assembly did so under the pre-Islamic/Islamic practice of Shura, whereby rulers receive investiture through consultation. In confirmation of this intent, King Abd Al Aziz defined the newly created one as a consultative Islamic State[2]

The legal establishment of the Kingdom of Saudi Arabia (hereinafter KSA) was then sanctioned via Royal Decree on September 23, 1932. The early institutional framework of the KSA included no distinction between legislative and executive powers, nor did it mention the possibility of holding elections. Yet, as renowned Islamic scholar H. Al Fahad maintained, the original Saudi governance permitted a modicum of accountable and participatory governance.

Quite significantly, local elections were regularly held in the main villages of Hijaz, including in the Capital city of Riyadh, between 1926 and 1963. A democratic backslide, or better to say, “a re-centralization of State powers”, began with the peak of the Oil boom. As the citizens of the KSA enjoyed inevitable advancement in the quality of their life, the embryonic form of participatory politics experienced in the early years of the Saudi State was soon aborted.

Detachment of the ruling elite from society following the transition of the KSA from a tax-collecting State to a rentier/benefactor-State completed the picture. Elections, which were more rooted in the pre-Islamic tribal-consultative traditions than in genuine affection toward political participation, proved soon obsolete and were halted for much of the Kingdom’s subsequent history. The Law of Provinces of 1992 further restricted the value of municipal politics providing that all local officers were to be appointed by the King[3].

The Advent of the Basic Law 

Not long after the end of the First Gulf War, which saw the United States liberate Kuwait from Iraqi occupation and deploy a large number of forces on the territory of the KSA, which provided logistical support to the operations, the so-called Basic Law of the Kingdom of Saudi Arabia was enacted (March 1, 1992). The Basic Law can be regarded as the first written Constitution of the KSA. In many respects, however, the pronunciation of the Basic Law did not produce an entirely new constitutional system.

According to Professor of Law Ali M. Al Mehaimeed, the Basic Law of 1992 has been a mere codification of fragmented constitutional principles adopted and applied in the country and derived mainly from Islamic, traditional, and international theories[4]. Even though the Basic Law did not transform the form of government of the KSA, it is noteworthy that it was only on March 1, 1992, that the KSA was enlisted among the nations that have written constitutions in a recognizable modern form[5].

The Basic Law was drafted in secrecy, and there was no public debate neither before nor after it was enacted. The fact that the drafting of the “Constitution” was not subject to political discussion is in line with the idea that popular sovereignty is not the foundation of the KSA authority[6]. In this respect, the Basic Law is reasonably straightforward and transparent in that it says that “the true Constitution of the country is the Book of God (the Quran) and the Tradition of his Prophet Muhammad”.

No popular ratification was therefore needed. From this viewpoint, the way the Basic Law presents itself resembles European Octroyed Constitutions, issued by European Kings\Heads of State without the participation of representative institutions (e.g., the French Constitutional Charter of 1814 or the Constitution of Prussia/the Statuto Albertino, both issued in 1848).

General Principles of the Basic Law

Chapter 1 of the Basic Law provides for the general principles and features of the “new constitutional system” of the KSA. Importantly, it sets forth the Islamic identity of the KSA, stating that the latter is an “Arab, independent Muslim State, its religion is Islam, and the Quran and the Sunnah (the tradition of the Prophet Muhammad) are the ultimate and main source of the legal and constitutional rules”.

Furthermore, it enshrines explicitly that Islam and State are indivisible, removing doubts which may be cast on the Islamization of the constitutional system of the KSA. However, the Islamic attributes of the Saudi state emerge with particular intensity in the subsequent paragraphs of the document (especially concerning the source of the Judiciary law and the Executive power), which shall be considered in the following sections.

The System of Government and the State Powers

Article 5 of the Basic Law sets forth Monarchy as the KSA form of government[7]. It further specifies that the throne is hereditary and shall go to the sons of the founder of the Kingdom, Kind Abd Al Aziz, and the sons of his sons (paragraph b, art. 5)[8]. Paragraph c of the same article regulates the issue of the throne’s inheritance, establishing that the King is recognized the power to appoint\discharge the Crown Prince[9].

Concerning the State Powers, it is worth noting that before enacting the Basic Law, both legislative and executive powers were exercised by the Council of Ministers (headed by the King in the vests of the Prime Minister). Article 44 of the Constitution, which governs the separation of powers (for the first time in the history of the Saudi state) is probably the most significant, albeit more in form than in practice. It affirms the division of powers into Executive, Judicial and Legislative. Under article 44[10], Executive authority is exercised by the King and the Council of Ministers, the King and the Consultative Council exercise legislative authority, and the Judiciary exercises judicial authority. 

Executive, Judicial and Legislative powers of the KSA

  • The Executive branch

The KSA Executive is formed by the King – who is also the Prime Minister Ex-officio – and the Council of Ministers[11]. According to the Basic Law, the King exercises his powers via his Ministers and Deputies. Moreover, pursuant to Chapter 6 of the Basic Law, the King is given the capacity of appointing\discharging Deputies and Ministers, executing judgments of the Judiciary branch, commanding the Armed Forces, declaring war, or the state of emergency, as well as conferring Honours. Importantly, Chapter 6, article 56, describes the functioning of the Council of Ministers.

In this respect, the KSA Basic Law affirms that the “Council of Ministers sees that the good running of Government departments is safeguarded and well maintained”[12]. For ministers to be appointed, they must have a clean criminal record and, of course, be Saudi citizens. Under normal conditions, the Council’s decisions pass with a quorum of two-thirds, while in exceptional circumstances, even half of the ministers constitute the quorum. In this case, however, the approval of two-thirds of those present is required. Meetings of the Cabinet remain secret. More remarkably, decisions of the Council of Ministers, including those relating to the endorsement of legislative proposals and emendations, are not considered final until sanctioned by the King. 

  • The Judiciary branch

The courts and other judicial bodies embody the Judicial branch of the KSA. As mentioned earlier, Judicial power is exerted according to and under Islamic Law, which is broadly speaking made of the Quran itself and the prophet’s tradition (i.e., the Sunnah). The latter comprises an ensemble of further regulations not directly expressed by the Quran but derived from the teachings of the prophet Muhammad. Sharia law is also seen as a guarantee of the independence of the Judiciary. Under article 46 of the constitutional charter, “there is no power over judges in administering justice, except that of Shariah”[13]

Article 51[14] of the Basic Law is also essential to the functioning of the Judiciary system as established by the document under Sharia law. According to the original version of this last article, the Supreme Judicial Council oversaw the Judiciary, and its judges – under the same article – were appointed and removed via Royal orders. On October 1, 2007, King Abdullah issued a Royal Decree passing a set of reforms regarding the KSA Judicial system[15].

Among these reforms, one (Law of the Judiciary, 2007) designated a High Court, which took over the functions of the Supreme Judicial Council as the ultimate Judicial authority in the KSA. Equally important, the 2007 reform created appellate courts for each province of the Kingdom, which were previously non-existent. These courts have been designed to specifically address labor, criminal, commercial, personal status, and civil matters[16]. The KSA also has an Administrative Court (which responds to its objections to judicial proceedings before the High Court), which deals with administrative issues, contracts, and disciplinary measures[17].

  • The Legislative branch

Broadly speaking, the King and the Shura (i.e., Consultative Council) embody the KSA Legislative authority[18]. In many respects, the Kingdom’s Legislative power is the most figurative of the intertwining relationship between the Islamic tradition and the running of State institutions. There is more than a valid reason to say that, given that the Islamic Sharia forms the basis of the KSA legal system, speaking of proper “legislative procedures” might be inaccurate.

The constitutional charter phrases the KSA Legislative authority as “regulatory authority”, which is empowered to pass statutory laws, approve international agreements, and assign institutional honors. According to Islamic Law, God is the “only and undivided” lawgiver; therefore, the term “legislation,” which indicates secular law, is not employed in the KSA. However, in complement to the regulations of Sharia Law, there is an ensemble of statutory rules passed in criminal, administrative, and commercial areas to keep pace with the evolution of the KSA. 

As for many other institutional domains, the King has a significant and self-dependent role in the “Legislative” branch. The Basic Law assigns the King the supreme power over State authorities, including the “regulatory authority”. According to the Basic Law, the Crown is empowered to pass, veto, or amend any regulation\law by Royal decree[19]. Besides, the King is also given the right to approve or nullify international agreements, conventions, and treaties as proposed by the Council of Ministers or the Consultative Council.

Conclusions

This short article has reviewed and analyzed specific issues in relation to the KSA constitutional system and offered a quick overview of the KSA authorities and their functioning. What emerged is that the nature and concept of law in the KSA is based primarily on Sharia law. The KSA is clearly not a democracy, nor it presents democratic features or aims to move in this direction. Its legal framework is tailored on the governing Saud family and most, if not all, State institutions directly respond and depend on the Saudi Crown.

Both in the Executive and Legislative branches, the Council of Ministers, and the Shura Council/Consultative Council cover roles, although complementary, unquestionably subordinate to the royal authority. The case of the judiciary may constitute a small but significant exception. Although its independence must be questioned, the “customary norms” of the pre-Islamic and Arab-tribal tradition, together with the institution of Sharia, which the ulama (scholars of Islamic Law) draw upon, guarantees a certain linearity of judgment. As the KSA Basic Law of Governance mentions, “there is no power over judges in administering justice, except that of Shariah”. From this point of view, the KSA continues to represent a unicum in the Arab world.


[1] Abdulaziz H. Al-Fahad, Ornamental Constitutionalism: The Saudi Basic Law of Governance, The Yale Journal of International Law, 2005, p.378

[2] The king ordered the formation of a constituent assembly (hayah tasisiyyah) to determine the name of the chief of the government of the Hijaz, the nature of its relations with Najd, the form of government, the international posture of the region, and the Hijazi flag and currency. The assembly consisted of fifty-one members from all over the Hjiaz who eventually recommended the proclamation of Abd al-Aziz as King of the Hijaz and Sultan of Najd and its Dependencies.

[3] A minimum degree of political activity at the municipal level would have resumed in the early 2000s. In 2003 the KSA Council of Ministers decided “to broaden the participation of citizens in administrating local affairs by means of elections in conformity with the ruling concerning municipalities issued by Royal Decree in 1977 “, ensuring that one half of the members of all municipal councils would be elected. From this sentence, the elections held in 2005, 2011 and 2015 would have taken legitimacy, although the powers recognized to municipal offices were minimal, such as the care of urban decor and the choice of waste disposal policies.

[4] Ali M. Al-Mehaimeed, The Constitutional System of Saudi Arabia: A Conspectus, Arab Law Quarterly, Vol. 8, No. 1, pp. 30-36, Published by Brill, 1993, JSTOR, p. 31

[5] Ibidem

[6] Abdulaziz H. Al-Fahad, Ornamental Constitutionalism: The Saudi Basic Law of Governance, The Yale Journal of International Law, 2005, p.384

[7] Basic Law of Governance, 1 March 1992, Published in Umm al-Qura Gazette, Part II, Article 5 (a)

[8] Ivi, Part II, Article 5 (b)

[9] Ivi, Part II, Article 5 (c)

[10] Ivi, Part VI, Article 44

[11] Ali M. Al-Mehaimeed, The Constitutional System of Saudi Arabia: A Conspectus, p. 33

[12] Ivi, p. 34

[13] Basic Law of Governance, Part VI, article 46

[14] Ivi, article 56

 

[16] Ibidem

[17] Ibidem

[18] Ali M. Al-Mehaimeed, The Constitutional System of Saudi Arabia: A Conspectus, p. 34

 

Latest from IARI WORLD