Legal and Academic

The Judicial Precedent In Saudi Arabia

Improvement and Implementation Study

Based on US Legal System

By

Abdulrahman Malki

S.J.D Proposal

2019

I. Introduction

The law is a set of rules and regulations that apply to all members of society to preserve and guarantee their rights. The laws are related to the application of the penalty in case of violation or disobedience. Therefore, it is very important of having a reliable sources of law that the judges can refer to in order of making the right decisions. One of the significant source of law is Judicial Precedents which is going to be the subject of this proposal dissertation.

The Judicial Precedent is a source of law where the decision has been made previously and created a law for judges to refer back as guideline in the future cases that have similar facts and circumstances.[footnoteRef:1] There are some countries who use the Judicial Precedent as source of law to make final decision such as, United State of America, England and South Africa.[footnoteRef:2] [1: lTeacher, Law. (November 2013). Judicial precedent is source of law. Retrieved from https://www.lawteacher.net/free-law-essays/judicial-law/judicial-precedent-is-source-of-law.php?vref=1] [2: Id ]

The sources of legislation in Saudi Arabia are four. First one is Quran,[footnoteRef:3] the holy book of God that Muslim’s first guideline. Second one is Sunnah[footnoteRef:4], where prophet Muhammad's actions and says made an approach for Muslims. Third one is Unanimity, which is a general [3: The Qur’an, the last revealed word of God, is the primary source of every Muslim’s faith and practice. It deals with all the subjects which concern human beings: wisdom, doctrine, worship, transactions, law…etc., but its basic theme is the relationship between God and His creatures. At the same time, it provides guidelines and detailed teachings for a just society, proper human conduct, and an equitable economic system. http://www.splendidarabia.com/kingdom/religion/what-is-quran/. ] [4: Sunnah, (Arabic: “habitual practice”)also spelled Sunna, the body of traditional social and legal custom and practice of the Islamic community. Along with the Qurʾān (the holy book of Islam) and Hadith (recorded sayings of the Prophet Muhammad), it is a major source of Sharīʿah, or Islamic law. https://www.britannica.com/topic/Sunnah. ]

agreement between jurists on an Islamic case that has been controversial. Last one is Qeyas, and this one is similar to the precedent yet Qeyas based on Islamic rules that has been decided long time ago.

However, in Saudi Arabia the Judicial precedent it is not considered as source of law or even as a persuasive law except in administrative courts. In addition, most of the judges do not consider the precedents as an important argument when the lawyers state that in their memorandum actions even if the same circumstances are applied at the case at hand.

Therefore, there are some issues because of not to consider the judicial precedent one

of the sources of law in Saudi Arabia. Although the law in Saudi Arabia is written but sometimes there is no reference to some of the cases of the existing law and that force the judges to diligence and issue a ruling commensurate with the incident and does not contradict with the existing law and often these cases are escalated to the courts of appeal and then the decision will be either affirmed or reversed. If it was affirmed, it would be better to consider it a binding precedent to be referred to in the future if the same court faced a similar case. In addition, much of the effort will be shortened to the judges and also reduce their diligence in many cases, and this is what puts the judge in the embarrassment when he can not find a clear law to refer to when he should be giving a final decision.

Considering the judicial precedents binding source of law to the judges, it speeds up the process of trial and also limits the judge's diligence in making a judgment. However, not all judicial precedents can be considered as a binding law, particularly in decisions that have not been contested and have not reached the appeal court. The research will focus on the importance of considering the judicial precedents as source of law in Saudi Arabia but in a certain way in order to facilitate the process of trial and the multiplicity the sources of law that can be referred by the courts.

This is what is done in the United States of America, which is the judicial precedent one of the sources of US law but in different way and other aspects as US law is a common law not civil law like Saudi Arabia.

II. The significance of study

The importance of this research is the development of the judicial system in Saudi Arabia and the multiplicity of sources of judicial legislation as well. When the judicial precedent exists as a source of legislation in the Saudi law, it will certainly have a significant impact on improving the performance of judicial circuits and minimizing the contradiction in issuing some decisions. Moreover, judges will be less susceptible to personal judgment in issuing decisions, especially when there is no clear law that can be referred to. In addition, if the judges are bound by judicial precedents in the courts, the decisions will be issued more quickly than they are now and this will benefit the public interest, as well as achieving the purposes of justice for which the law was built.

On the other hand, the judicial precedents has been raised in Saudi Arabia before but it was met with opposition because the Saudi regime is the most widely said system of Islam and also a civil law, so it is been said a lot that the judicial precedents is not in line with the method of the Saudi system. However, it has not been an empirical study in Saudi Arabia, so this research it will be referring to a country that use judicial precedents as a source of law, such as America, to try to emulate the US system and to use it in how to judicial precedents can be used as a compulsory source in the Saudi’s courts, but not in contradiction with the principles and customs of the Saudi regime.

III. Study Questions

1- Considering the law in Saudi Arabia is civil law under Islamic perspective (Sharia Law), would it be possible to consider the judicial precedents as a source of law in the Saudi system?

2- Some of the Islamic jurist disagreeing with using the judicial precedents to bind the judges when they are making decisions, what is the best argument that can be persuade them and how can this research approve the importance of having the judicial precedents as a source of law?

3- As it is known, the United States is a common law country, how can Saudi Arabia extract the US system and apply it in their system without conflicting with the principles of their own.

4- Not all decisions that the court makes can be used as a judicial precedents, so what are the features that should be determining the appropriate decision to become a bound precedent?

IV. Scope of study

In this dissertation, the topic of the judicial precedent will be presented in details in terms of the main subject of the research, which is to make the judicial precedent one of the sources of law in the Kingdom of Saudi Arabia to achieve the desired goals. So the research will be divided into four separate chapters and each chapter will be linked directly to the core of the subject of this research.

Chapter one: Introduction.

In this chapter there will be a historical narrative and an overview of the subject of judicial precedent in both countries the Saudi Arabia and America. In addition, this chapter will deal with many aspects in terms of how the application of the judicial precedent and where the idea came from and what obstacles faced the countries that took the precedent as a source of legislation and there are many countries applying this system, including England and South Africa.

Moreover, the focusing will be placed on the US method of applying the system, since the research aims to rely on the US system to apply the judicial precedent system in Saudi Arabia. On the other hand, this chapter will explain how Saudi Arabia has dealt with the subject of judicial precedent over the years since the establishment of the Saudi judiciary.

Chapter two: The Importance of Judicial Precedents.

The second part of the research will discuss the importance of the judicial precedent and its positive impact in the process of the trial, especially in US courts. There are many benefits that accompany the application of this system in the judiciary and therefore the research will be focusing on this part in detail. There is no doubt that the US legislator considered the judicial precedent one of the most important sources of law in the United States of America and this has a significant impact on the development of the judicial system and from this point this part of the research will have enough to talk about it.

There are some jurists in Saudi Arabia who have supported the importance of the role of the judicial precedent and considered it an important part in the application of the law, but some of others did not agree with the opinion. Therefore, the research in this section will explain the experience of the US system to support the opinion of the jurists who sought that the judicial precedent to be one of the sources of law in Saudi Arabia.

Chapter three: Extent of Applicability of Judicial Precedent.

Due to some research that raises the issue of the authoritative of judicial precedent in Saudi Arabia and mentions its advantages and disadvantages, no one has never suggested that the judicial precedent should be binding on the judges just in certain cases, due to the existence of written law and various sources of the Saudi law. Therefore, in this chapter it will shows to what extent can the judgment be considered as a precedent to the judge and what are the cases where the judges should consider the judgment of a Supreme Court is a binding precedent over the courts under its jurisdiction.

There are some conditions and specifications if applied to the decision then it can be considered as a precedent, especially in some courts, which there is not enough law to refer to in all cases and that also what will be discussed in this chapter of the research.

Chapter four: Implementation Study.

In this chapter, an implementation study will be conducted on some commercial and civil cases which, if the previous rulings issued by a higher court used as an binding precedent over the court under its jurisdiction, will there be any difference in the final judgment and what benefits will be derived from applying this study on the real ground.

References