In Saudi Arabia, the judiciary has never been independent in any era. However, since the arrival of the current Crown Prince, he has systematically, continuously and intentionally destroyed what remains of any paper that covers the faults of the judiciary or covers its dispersal. These windows and margins, which have been the subject of judicial jurisprudence or a future space for independence, have been dismantled and fragmented and the remainder have been displaced.
In Saudi Arabia, judges who were legally trained for decades relied on informal mechanisms that gave them relative independence and influence despite some ideological issues.
You can say what you want about these informal historical mechanisms, but they were instrumental in making the Saudi courts’ position linked to the judiciary and not outside of it. This relative autonomy was largely the product of traditional methods of education, qualification and integration (such as workshops) and practical training, which created an opportunity for jurisprudence and judicial discretion. Training and education have come together to give judges a strong sense of belonging to a collective identity.
Successive Saudi rulers showed great respect and caution in dealing with it. They often saw the legitimacy of the judiciary as very important to the legitimacy of the regime and the survival of the image of independence among people, despite significant breaches in the political and civic aspects.
Of course, not all tools were entirely informal. The judicial system had a codified legal basis. In 1926, King Abdulaziz Al Saud issued a decree providing for the Hanbali School of thought (the dominant doctrine in Najd) to be the official tradition to be applied in Saudi courts. In general, the Hanbalis, and a large number of Islamic scholars trained in classical doctrines, usually resist comprehensive institutionalisation.
The reason is that scholars have traditionally suggested that this might pave the way for the dominance of the State (or other external powers) over jurisprudence and religion.
Over the years, the Saudi state has strengthened its work on formalisation in ways that have gradually reduced the role of the judiciary. Recently, with the current Crown Prince, the pace of diminishing judicial power has accelerated through the use of three main tools:
- The first was to rely on royal and government decrees and decisions for fundamental legal issues. Decrees and resolutions are codified legislation that result in reducing the space for traditional independent thinking known as ijtihad, which judges were practicing. Recently, the torrent of intermittent edicts has become a constant flow. Some judges fear that it will soon become a flood, as some have told me.
- The second was the establishment of specialised courts and quasi-judicial agencies based entirely on governmental decrees and official procedural directives that gradually demolished the jurisdiction of the general courts. These agencies have become so vast that a judge in the general courts has called it a “shadow judiciary.” Many judges have noted that taxes, insurance and bank affairs became under the responsibility of quasi – judicial commissions. These committees now became the pillars in their area of competence and their opinions can no longer be appealed to the general courts. As for judges in the General Courts, this change means that “shadow justice” is completely out of the spotlight.
- The third tool- which in my opinion is the the most dangerous element of the equation – is the greater exercise of the executive authority over the judicial sector and its direct involvement in judicial action. In addition to its direct orders for court presidents and their representatives through the Ministry of Justice and the executive authorities to sentence some and acquit others abruptly.
In 2012, Minister of Justice, Mohamed Al-Issa, became the first to hold the highest judicial position, as Head of the Supreme Judicial Council, without abandoning his ministerial portfolio. While the Minister and his supporters considered it necessary to speed up the implementation of legal and judicial reforms, some judges expressed their dismay on the conflict of interest arising from the fact that Issa is obtaining two positions at the same time.
Judges also objected to his use of his powerful authority to manage various matters of judicial affairs down to the smallest details, and and considered his behaviour to be burdensome.
One of the most important aspects of the judicial intervention is the series of executions and the politicised sentences of activists, intellectuals, academics and scientists in exchange for the acquittal of the country’s political, administrative and financial corrupts and those involved in well-known international crimes recognised by many concerned authorities, such as in the case of journalist Jamal Khashoggi, may he rest in peace.
For all that, I can clearly say that the judicial institution in Saudi Arabia is being completely destroyed and tampered with in a crude and direct manner.
