The newsletter of the ISBA’s Standing Committee on Women and the Law
Is reform a reality for women in Saudi Arabia?
The Arab Spring focused attention this past year on political reforms throughout the Middle East. One country in the news with respect to women’s rights in particular is Saudi Arabia. In the fall of 2011, the King of Saudi Arabia announced that women would be allowed to vote and run for office in local elections beginning in 2015. To many of us in the United States, it seems incredible that there are still countries in the world that do not extend the right of suffrage and other basic human rights to women. This article provides some background on the Saudi Arabian political and legal systems and on the possibilities for future reforms to expand women’s rights.
I. Saudi Legal System Overview
The Saudi legal system is neither comparable to the civil nor common law system. The Saudi system is based on traditional Islamic law, known as Shari’ah. The sources of Shari’ah in Saudi Arabia come from the Quran and the Sunnah.1
The King of Saudi Arabia is an absolute monarch and has power to implement laws regarding subject matter that is not expressly mentioned in Shari’ah.2 Since the creation of the modern state in 1932, the Kings of Saudi Arabia have slowly attempted to reform the legal system from a collection of tribal structures and unorganized courts to a modern legal system.3
Accordingly, the King implemented the Law of the Judiciary in 1975, which still regulates the modern Court System.4 However, the King but did not formally authorize legal representation until 2001. Thus, the concept and role of attorneys in Saudi Arabia was an unfamiliar one until very recently.
Additionally, since Saudi Arabia strictly abides to Shari’ah, the Ulama also play a vital role in the Saudi legal system. The Ulama are a group of trained Shari’ah jurists and scholars who are often appointed to various positions within the government including as judges and advisors to the King.5
The Ulama have spoken out against the codification of legal procedures.6 However, since legal procedure is not expressly addressed in Shari’ah, the subject falls under jurisdiction of the King.7 As a result, civil and criminal procedure has been codified though Resolutions and Royal Decrees.8
II. The Saudi Court System
After coming to power in 2005, King Abdullah came to be known as a ‘cautious reformer’.9 One of his reforms was the new Law of the Judiciary in 2007. This 2007 Law of the Judiciary mandated judicial reforms with the main objective of creating more judicial independence.10 In regards to independence, the Supreme Judicial Council (part of the judicial branch) is now in charge of all administrative tasks regarding the judiciary which had formally been controlled by the Minister of Justice (part of the executive).
Structurally, the Saudi Court system consists of Courts of First Instance, which as of 2010, consist of separate civil and criminal courts, Courts of Appeal, and a Supreme Court.11 The Board of Grievances is an administrative tribunal that was set up in 1955.12 Other separate non-independent tribunals are also present in the Ministry of Commerce and Labor and resolve disputes under their jurisdiction.13
However, Saudi Arabia was lacking a Supreme Court (also known as the High Court) until the new Law of the Judiciary mandated its creation in 2007. Now the Supreme Court is composed of judges from various appellate courts and the Court’s decisions are final and not subject to approval by the Minister of Justice, as was previously required.14
III. Qadis (Judges)
Qadis are appointed by Royal Decree from the King after recommendation from the Supreme Judicial Council.15 According to Shari’ah, the greatest role of the Ruler is to establish justice and therefore appointment by the King to the judiciary is not seen as an infringement on judicial independence.16
Because Shari’ah is derived from God, it is interpreted by religious officials as opposed to members of the State.17 Therefore, qadis are extensively trained in religion and the process of using sacred Islamic texts to ascertain the will of God.18 Graduates of Shari’ah institutes automatically qualify to become qadis but graduates of law schools must pass an exam administered by the Supreme Judicial Council (judicial branch).19
Qadis apply Shari’ah law to individual cases and the outcome becomes binding and final on the parties only, unlike common law which follows precedent.20 Therefore, qadis are not obligated to consider previous decisions.21 The qadis and Ulama have consistently ruled against codifying qadis’ decisions arguing that choosing a particular view takes away the legal reasoning of a qadi.22 Instead, the qadis are given significant freedom when performing the religious task of ascertaining God’s will.23 Qadis are instructed to use six standard (medieval) canonical texts in which majority and minority views are all considered valid.24 Qadis are free to choose among these views, with the result that some rulings over identical disputes may diverge.25
Saudi Arabia was one of the last countries in the Middle East and the world to formally recognize the practice of legal representation.26 Historically, the function of a lawyer did not exist and only the limited notion of attorney-in-fact was known, in which a party would appoint (or perhaps hire) another party to pursue its claims in its stead before the court.27 The non-existence of lawyers in Saudi Arabia until recently occurred because the role of the law in Shari’ah is to ascertain God’s will and was therefore performed by a religiously trained member of society.28
Not until 1997, during a highly publicized trial, was the first person defended by a lawyer.29 This does not mean that a legal field did not exist; it just did not exist in its modern capacity. At the time of the 1997 trial, the Kingdom’s economy was rapidly developing with hopes of increased foreign investment. In response to international publicity in regards to the trial and a desire to increase investment, the King administered a Royal Decree that officially authorized legal representation in the Kingdom in 2001.30
According to the Decree, practicing lawyers must be qualified and have an appropriate legal degree from either a Shari’ah college or from one of the Saudi Kingdom’s universities or its equivalent, if obtained from an overseas university.31 Additionally, a graduate with a bachelor’s degree must have completed three years of practical training while a graduate with a masters’ degree need only receive two years, and a PhD graduate is not required to have any practical experience.32 Furthermore, a lawyer must practice according to the principles of Shari’ah and the laws in force in the Saudi Kingdom.33 Other than upholding the principles of Shari’ah, there are no laws that govern the profession and no uniform criteria for granting licenses.34 As a result, the standard of the legal representation varies.
V. The Role of Lawyers in Saudi Society
Despite having a late start and a legal system based on Shari’ah, much of the legal profession in Saudi Arabia is similar to that in other parts of the world. Much of a lawyer’s work in the Kingdom is transactional. A basic Google search of “law firms Saudi Arabia” confirms that there are a large number of firms in the Kingdom that cater to business, investment and all the consulting, litigation and arbitration that comes with those fields.
However, there are a few practical and historical differences. Neither civil nor criminal Shari’ah is codified.35 Without codified criminal law, society is left with an unclear picture of what constitutes an ‘illegal’ act. Therefore, a judge may determine that televised fortune telling is “witchcraft,” or that dressing ‘emo’ is un-Islamic.36 Likewise, ascertaining the meaning of laws in Shari’ah court is extremely difficult as judges are given significant freedom in interpretation and are not bound by previous decisions.
The role of the attorney in litigation in Saudi Arabia also differs slightly from the role of Western lawyers as it is less adversarial and more inquisitive. In Shari’ah Court, it is the role of the judge to question the opposing party and any witnesses, somewhat similar to the judge’s role in civil law.37 However, attorneys are still given the responsibility of presenting an oral argument, any relevant evidence, witnesses and defenses before the court.38
Lawyers are still not as present in the courts as lawyers in Western countries because of the long held view that one does not need a representative because breaking the law is an issue between you and God, to be resolved by a religious official. However, with Saudi Arabia’s economy growing and foreign investment increasing, the legal profession is taking on a more important role in society. Specifically, the commercial and labor tribunals have become important forums for lawyers to represent their clients in business disputes.
VI. Legal Status of Women
Women have little ability to function independently in Saudi society, which limits their legal rights and roles. Women in Saudi Arabia are assigned legal guardians. Women must then seek permission from their legal guardian to make personal decisions such as to travel, elect to have surgery, apply for a job or attend school. Legal guardians are a woman’s closest male relatives; a father, husband or in the case of a widow or divorcee, her son or uncle.
The Saudi tradition of guardianship is rooted in an arguably misinterpreted verse of the Qu’ran that names men as the protectors of women.39 Many scholars have argued that the reasoning for male guardians has become obsolete in modern society while other Islamic scholars have argued that guardianship should only be applied to minors and not extended throughout a woman’s life.40 Despite the various views on guardianship, the Saudi Ulama have chosen to interpret the verse to be the most restrictive on women’s freedom.41
Requiring women to have a legal guardian places an enormous obstacle to a women’s equality in society and burdens her everyday life. Many Saudi women find daily activities impossible. Mundane tasks like purchasing a cell phone, enrolling a child in school, picking up a birth certificate or taking a business trip cannot be done without a male guardian. Additionally, extremely personal decisions cannot be made without permission of a male guardian. Many hospitals still require male permission for certain surgeries and a woman is often denied the ability to file a police report without the presence of a legal guardian.42 Women are forced to be completely dependent upon their male guardian.
In addition to women being subjected to the guardianship system, women are not allowed to be the legal guardian of their children.43 However, in exceptional cases, women may be permitted to act in an advisory role (wisaya) for children that do not have any available male guardians.44
Internal and international forces have routinely pressured King Abdullah to abandon the male guardian system. In 2009, the King accepted recommendations by the United Nations to take small steps to eliminate the guardianship system in the Kingdom.45 Despite the Kingdom’s promise to eliminate the system, almost no changes have occurred. However, many women have chosen to challenge the system. One woman has been involved in drawn out litigation so that she can chose the husband of her choice.46
Despite outcry for change to the guardian system, a number of Saudi women have started a campaign against the pressure to abandon the guardianship system. The “My Guardian Knows What’s Best for Me” campaign has gained the signatures of over 5000 Saudi women and seeks to guarantee the guardianship system is kept in place to ensure “strict adherence to Shari’ah law and family customs”.47
VII. Women and the Courts
The male guardianship requirement is a major barrier to women’s access to the court system. If a woman chooses to file a complaint in court she will find it difficult if she does not have a legal representative.
Within the court itself, one report found that courts generally refuse to recognize women as witnesses and instead will only hear testimony through a male representative.48 Another barrier to appearing in court is the fact that a woman is required to bring along a male guardian who is able to confirm the identity of the women while she is wearing niqab (headscarf).49 One attorney told Human Rights Watch that “the attitude in the Shari’ah courts is that people don’t need lawyers to deal with the sheikh (judge). Of course a woman shouldn’t address the sheikh herself. If she does, she needs to wear niqab. It’s preferred that a mahram (legal guardian) speaks for her.”50 While women are not officially banned from appearing in courts, in practice women face many obstacles and hostilities that constructively prevent their participation in the judicial system.51
VIII. Female Lawyers
Considering the obstacles women face with legal guardianship and court participation, it is no wonder that only 5 percent52 of the workforce is female. Although women were allowed to attend law school beginning in 2006, female attorneys are essentially blocked from practicing law. Currently, female law graduates can work in the women’s section of law firms and government offices, but cannot argue cases before court as lawyers.53 Some women have been allowed to argue cases in court on the behalf of other women as legal representatives, but not officially as lawyers.54
The government has yet to issue rules and regulations certifying the profession of female attorneys in Saudi Arabia.55 For this reason, women are unable to receive the official title of lawyer in the Kingdom and, therefore, are not able to become officially certified which prevents them from opening their own offices.56 Saudi Arabian society is highly segregated and opening law offices run by women would afford women the opportunity to practice law without violating the societal taboo of mixing the sexes.57
Despite the large obstacles women face in Saudi Arabian in regards to gender equality, there has been some recent progress. In 2010, the Saudi government officially released its plan to ‘reform’ the court system by allowing women to argue cases on child-custody, divorce and other family-related issues in special courts as lawyers.58 Currently, those special courts for women are still in development within the Kingdom.59
IV. Current Developments in
Despite the bleak reality of lack of women’s freedoms in the Kingdom, King Abdullah has pushed women’s rights further than any other Saudi monarch. On September 25, 2011, the King announced that women would be able to vote and run for municipal office in the 2015 elections.60 Three months later, the King announced that women would be able to participate in the elections without the permission of their guardians.61 In this same announcement, the King announced that women would also be able to join the Shura Council with full voting powers.62 The Shura Council is an appointed advisory board to the King and currently contains 12 women that do not yet have the power to vote.63 However, women in Saudi Arabia still cannot drive and do not enjoy many other basic human rights and fundamental freedoms. Thus, it appears that the King is continuing to live up to his reputation as a “cautious reformer.” ν
Cindy G. Buys, Professor of Law at Southern Illinois University School of Law and Stephanie Macuiba, JD expected 2013, Southern Illinois University School of Law.
1. Hossein Esmaeili, On a Slow Boat towards the Rule of Law: The Nature of Law in the Saudi Arabia Legal System, 26 Ariz. J. Int’l & Comp. L. 3, 31 (2009). The Sunnah is the oral tradition of the Prophet Muhammad documented in the hadith, Charles P. Trumbull, Islamic Arbitration: A New Path for Interpreting Islamic Legal Contracts, 59 Vand. L. Rev. 609, 626 (2006).
2. Esmaeili, supra note 1 at 31.
3. Id. at 29.
4. Id. at 32.
5. Id. at 40
6. Abdulaziz H. Al Fahad, The Prince, the Shaykh - and the Lawyer, 32 Case W. Res. J. Int’l L. 307, 315 (2000).
7. Esmaeili, supra note 1 at 31.
9. Angus McDowell, Saudi King Abdullah, a Cautious Reformer, Reuters, October 27, 2011.
10. Abdullah Fakhry Ansari, Saudi Judicial Reform and the Principle of Independence (May 5 2009) <http://carnegieendowment.org/2009/05/05/saudi-judicial-reform-and-principle-of-independence/6bfn>.
12. Samir Shamma, Law and Lawyers in Saudi Arabia, 14 Int’l & Comp. L. Q. 1034, 1037 (1965).
13. Christoph Wilcke, Human Rights Watch, Looser Rein, Uncertain Gain 30 (September 2010) available at <http://www.hrw.org/sites/default/files/reports/saudi0910webwcover.pdf>.
14. Abdullah F. Ansary, A Brief Overview of the Saudi Arabian Legal System (2008), <http://www.nyulawglobal.org/globalex/saudi_arabia.htm>.
17. Trumbull, supra note 1 at 630.
18. Id. at 627.
19. Ansari, supra note 10.
20. Trumball, supra note 1 at 626.
21. Id. at 629.
24. Al Fahad, supra note 6 at 315.
25. Trumball, supra note 1 at 629.
26. Esmaeili, supra note 1 at 35.
27. Al Fahad supra note 6 at 317.
28. Joseph L. Brand, Aspects of Saudi Arabian Law and Practice, 9 B.C. Int’l & Comp. L. Rev. 1, 15 (1986).
29. The first case in which parties to a case were represented by a lawyer was the case of two British nurses, Deborah Parry and Lucille McLaughlin, accused and convicted for the murder of an Australian nurse, Yvonne Gilford, in 1997. Both the victim and the defendants were foreign, Western nationals. The case was the subject of international media attention and both the British and Australian governments intervened to protect their nationals, Esmaeili, supra note 1at 35.
30. Id. at 34. See also Royal Decree M/38, 28 Rajab 1422 (Oct. 15. 2001) (The Code of Law Practice).
32. Khaled Benjelayel and Nima Mersadi Tabari, How to Qualify as a Lawyer in Saudi Arabia, International Bar Association, <http://www.ibanet.org/PPID/Constituent/Student_Committee/qualify_lawyer_SaudiArabia.aspx>.
34. Al Fahad supra note 6 at 318.
35. Frank E. Vogel, Saudi Arabia: Public, Civil and Individual Shari ‘a in Law and Politics in Shari’ah Politics: Islamic Law in the Modern World 55, 58 (Robert W. Hefner ed., 2011).
36. Christoph Wilcke, Human Rights Watch, Looser Rein, Uncertain Gain 37 (September 2010) available at <http://www.hrw.org/sites/default/files/reports/saudi0910webwcover.pdf>. In October 2009, for example, a court in Medina found television presenter Ali Sibat guilty of “sorcery” for his work in Lebanon on a program that gave callers-in advice about the future while girls and women were arrested for wearing black clothes associated with ‘Western style emo’ music, Id.
37. Law of Procedure before Shari’ah Courts (2000), Royal Decree No.M/21, 20 Jumada I, 1421 [19 August 2000], Part Five, Hearing Procedure and Order, Royal Embassy of Saudi Arabia Washington D.C., available at <http://www.saudiembassy.net/about/country-information/laws/Law_of_Procedure_before_Shariah_Courts.aspx>.
39. Farida Deif, Human Rights Watch, Perpetual Minors 10 (April 2008) (“Sura 4 verse 34 of the Quran states, “Men are the protectors and maintainers of women, because God has given the one more [strength] than the other, and because they support them from their means.””).
40. Id. at 11.
41. Id. at 12.
42. Id. at 23.
43. Id. at 32.
45. UN: Saudi Arabia Pledges End of Men’s Control Over Women, Human Rights Watch, June 12, 2009, <http://www.hrw.org/news/2009/06/12/un-saudi-arabia-pledges-end-men-s-control-over-women>.
46. Dave Lee, Saudi Arabian Woman Challenges Male Guardianship Laws, BBC, June 29, 2011, <http://www.bbc.co.uk/news/world-middle-east-13932287>.
47. Katherine Zoepf, Talk of Women’s Rights Divides Saudi Arabia, The New York Times, May 10, 2010, <http://www.nytimes.com/2010/06/01/world/middleeast/01iht-saudi.html?pagewanted=all>.
48. Farida Deif, Perpetual Minors 24, Human Rights Watch (April 2008).
49. Id. at 25.
51. Abeer Allam, Saudi Female Lawyers Fight For Right to Work, Financial Times, April 2, 2010, <http://www.ft.com/cms/s/0/2f82c32c-3e67-11df-a706-00144feabdc0.html#axzz1hmR3ifPj>.
52. Dalia Mortada and Imani M. Cheers, Will Changes in Saudi Arabia Increase Women’s Rights?, PBS Newshour, November 1, 2011, <http://www.pbs.org/newshour/extra/features/world/july-dec11/saudi2_11-01.html>.
53. New law will end male dominance in Saudi courts, ArabNews.com, February 10, 2010, <http://arabnews.com/saudiarabia/article20117.ece>. Joe Avancena, Saudi Women Can Set Up Their Own Law Firm, Saudi Gazette, <http://www.saudigazette.com.sa/index.cfm?method=home.regcon&contentID=2010030265001>.
54. Female Lawyers Seek Justice, Saudi Gazette, June 23, 2011, <http://www.saudigazette.com.sa/index.cfm?method=home.regcon&contentID=20110723105845>.
55. Muhammad Humaidan, Women lawyers call for expediting rules to streamline their practice, Arabnews.com, Nov. 28, 2011, <http://arabnews.com/saudiarabia/article539584.ece>.
58. New law will end male dominance in Saudi courts, ArabNews.com, February 10, 2010, <http://arabnews.com/saudiarabia/article20117.ece>.
59. Dina Al-Shibeb, Saudi women aim to practice law, traditionally a male domain, Al Arabiya News, 23 April 2011, <http://www.alarabiya.net/articles/2011/04/23/146400.html>.
60. Saudi Arabia: Women to Vote, Join Shura Council, Human Rights Watch, September 26, 2011, <http://www.hrw.org/news/2011/09/26/saudi-arabia-women-vote-join-shura-council>.
61. Saudi Women to Vote Without Male Approval, Huffington Post, December 28, 2011, <http://www.huffingtonpost.com/2011/12/28/saudi-women-vote-male-approval_n_1172778.html>.