Bassam A. Elqasem Advocates & Counselors at Law
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Bassam A. Elqasem Advocates & Counselors at Law |
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The legal system in the Kingdom of Saudi ArabiaThe sources of such system are the Kingdom’s constitution, which is the Qur’an and the Prophet’s tradition (Sunnah). These two form the umbrella for the legitimacy of every laws and rules that are passed. Even the smallest courts in the Kingdom do exercise control over the legitimacy (constitutionality) of all laws and resolutions passed. Thus, the Pleadings Act has mandated the judge the power of enforcing the Islamic legal provisions (rules) and what is ordained by the ruler, which is not inconsistent with the Qur’an and Sunnah. The Islamic Shariah rules contained in the various Islamic books of jurisprudence books are derived from the Qur’an and Sunnah, this does not however mean that all matters, whether minor or major are governed by rules in the form of legal provisions (articles) in the Qur’an or Sunnah. But there are general provisions and principles from which every diligent scholar derives the required rule on a given issue in accordance with well-established rules, and he arrives at such rule through a series of arguments and foundations supporting the validity of the outcome. Accordingly the legal system in the Kingdom is founded on the books of Islamic jurisprudence based on one of the main four Sunnite Schools of Thought, which is the Handbali School. The said references of jurisprudence form the input required by the judge in the rules he passes on all the cases brought before him. Consequently, the judge has got almost an absolute freedom in formulating his final conclusions based on the transaction jurisprudence “the civil and commercial law”. The advocate, who has begun to assume his role under the Kingdom’s legal system is becoming more and more important as an aide than is the case in any other country. That is the task defense faced by the Saudi advocate is more difficult than that of other advocates outside the Kingdom who have free access to legal material codified in an easily accessible way. The ruler passes, after consulting the Shura (consultative) Council, laws (regulations) for organizing the general affairs by means of Royal Decrees, and the ministers issue executive (implementing) regulations, and all these regulations constitute the laws in their modern sense. The courts respect these executive regulations; provided that they do not contradict the provisions of the Islamic Shariah (the Qur’an and Sunnah). In most cases, Shariah is strictly observed before issuing these laws.
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