MOTION GRANTED: KING OVERHAULS SAUDI JUDICIARY

C O N F I D E N T I A L SECTION 01 OF 05 RIYADH 000361 SIPDIS DEPARTMENT PASS TO NEA/ARP (HARRIS, BLONG),DRL/NESCA (HICKEY) E.O. 12958: DECL: 02/22/2019 TAGS: PGOV PHUM SA SUBJECT: MOTION GRANTED: KING OVERHAULS SAUDI JUDICIARY REF: A. 08 RIYADH 1780 ¶B. 08 RIYADH 01615 ¶C. 08 RIYADH 00731 ¶D. 07 RIYADH 02051 Classified By: Political Counselor Lisa M. Carle reasons 1.4 (b) and (d) (C) KEY POINTS -- King Abdallah's February 14 judicial appointments finally began a judicial reform process ordered in 2007. The ministerial reshuffle replaced key judicial officials whose job descriptions also changed per the 2007 Law of the Judiciary. -- The 2007 law does more than restructure the judiciary. It changes the function of the Ministry of Justice, redefines the Supreme Judicial Council, and narrows the role of the Board of Grievances. -- With the advent of a Supreme Court, Saudi Arabia will now have a system of judicial review. The Chief Justice of the Supreme Court will oversee the newly created body that will review cases, expanding on a function taken from the Supreme Judicial Council (SJC). -- The Supreme Court will have the power to confirm or overturn cases, something the SJC could not do. Decisions will be reached by majority vote. -- The expanded jurisdiction of the Shari'a courts, divided into five branches based on case type, is striking. Dispute resolution now returns to the Shari'a court system, having crept into the Board of Grievances in recent years. Finance, banking and customs cases remain outside the Shari'a courts. -- When the changes are implemented, the Board of Grievances will return to its original purpose of handling cases against the government. -- Along with these changes, a restructuring of the Senior Board of Ulama (religious scholars) expands the sources of Islamic jurisprudence beyond the strict Hanbali school which was the primary source mandated by King Abdalaziz at the founding of the Saudi state. -- New faces mark this group of appointees, who bring more of a change in perspective than a change in ideology. The new Minister of Justice participated in drafting the 2007 Law of the Judiciary as a member of the Majlis Al-Shura. (C) COMMENT: FAR REACHING STRUCTURAL REFORMS -- The king's shake-up sent a clear message to the staid judiciary: reform, or else. The king removed some inflexible figures who had filibustered judicial modernization. The changes will transform the Saudi judicial system by implementing the 2007 Law of the Judiciary. Outgoing Justice Minister Abdallah al-Sheikh recently said publicly that the reform process will take 20 years. The king does not appear inclined to wait. -- Boldest among the appointments appears to be Mohammad al-Issa as Minister of Justice. At nearly half the king's age, al-Issa breaks a mold where seniority and decades of experience have long been prerequisites for ministerial-level positions. --The removal of SJC head Saleh al-Luhaidan signified the king's willingness to challenge the religious establishment. Under al-Luhaidan's stewardship, the SJC frequently upheld strict lower court verdicts based on a rigid interpretation of Shari'a, putting the king in the position of correcting egregious decisions via royal pardons, such as the case of the Qatif girl who was sentenced to lashings after she was raped for having been in the company of unrelated males. The new Supreme Court, endowed with the ability to overturn verdicts, could relieve some of this burden for the throne. -- While the appointments are historic, the work ahead to change the judiciary is immense. This will not be done by flipping a switch, and a multi-year transition can be expected. Nonetheless, Saudis across the spectrum appear satisfied with the king's moves. RIYADH 00000361 002 OF 005 -- The joke in Riyadh is that the time to have fun was under King Saud, the time to go to jail was under King Faisal, the time to get rich was under King Khaled, the time to go bankrupt was under King Fahd, and the time to reform is under King Abdallah. In other words, reform now while you have the chance. END KEY POINTS AND COMMENT ¶1. (C) INTRODUCTION: Saudi King Abdallah's February 14 reshuffle targeted the judicial and education sectors of government. In addition to high-level position changes across-the-board, several lower-level appointments signify a deeper reach to mold the court system. The king did not place his appointees in existing positions - rather, he made appointments to positions in a future judicial structure. To appreciate the appointments, one must first understand Saudi's future legal system. The following description is based on our interviews with a number of Saudi legal specialists and reviews of the new laws, as well as an excellent new study by a Saudi Harvard-educated lawyer, Dr. Abdallah F. Ansary, "A Brief Overview of the Saudi Legal System" published in July 2008, which can be found at www.nyulawglobal.org/globalex/Saudi Arabia.htm. -------------- CONTEXT: THE 2007 LAW OF THE JUDICIARY -------------- ¶2. (U) OVERVIEW: The sequence of events leading to this week's announcements can be traced to 2001, when the Law of Criminal Procedure was established by royal decree. The new code prompted corresponding reform of the judiciary, manifested in an April 2005 royal order. This order outlined the basis for a restructured Saudi court system, eventually fleshed out by the October 2007 Royal Decree establishing the Law of the Judiciary. The 2007 decree established new laws regulating both the judiciary and the Board of Grievances, and budgeted 7 billion riyals (US $1.87 billion) for the cause. Despite this, implementation sputtered between October 2007 and February 2009. ¶3. (U) Of the numerous changes mandated by the 2007 Law of the Judiciary, five stand apart and are brought nearer to fruition by this month's appointments: ¶A. Restructured Shari'a court system ¶B. New Supreme/High Court ¶C. Sweeping redefinition of the SJC's role ¶D. Codified judicial independence and limits to ministerial interference ¶E. Narrowed role of the Board of Grievances and the administrative courts ¶A. THE NEW SHARI'A COURT STRUCTURE: The 2007 plan upends the 1975 Law of the Judiciary, which defined the 11-member SJC as the kingdom's highest Shari'a court. The 2007 law establishes the court hierarchy as follows: -- One Supreme Court (AKA High Court) -- Courts of Appeals: One per province -- Courts of First Instance (AKA First-Degree Courts) with five specializations: (1) General (2) Criminal (3) Personal Status (divorce, family status, etc.) (4) Commercial (5) Labor What changes does the 2007 law bring? First, it establishes a Supreme Court. Second, the number of Appeals Courts increases from two (in Riyadh and Medina) to at least 13 (one or more per province). Third, the law reorganizes and expands the reach of the lower-level Courts of First Instance. Judicial leaders face the task of converting the court system to reflect the 2007 law. ¶B. SUPREME COURT: The Supreme Court replaces the SJC as the country's highest court authority. The Court's main purposes are to: (1) ensure the proper interpretation and implementation of Shari'a law, and (2) review, and sustain or overturn, rulings from the Courts of Appeals. The second of these formerly rested with the SJC. The Supreme Court Chief RIYADH 00000361 003 OF 005 reports to the king and holds a seat on the SJC. The Chief presides over a General Council, comprised of judges assigned to the High Court. The Council establishes precedents as well as principles for determining verdicts and sentencing. The court decides cases by vote, with the Chief's vote serving as the tiebreaker. ¶C. SUPREME JUDICIAL COUNCIL: The SJC relinquishes responsibilities (such as case review) to the High Court, but absorbs duties formerly with the Ministry of Justice. For example, the SJC, fully part of the "judicial branch," takes over the MoJ's function as administrator of the Shari'a court system. New powers include the ability to establish and abolish courts, define jurisdiction, and name judges for Courts of Appeal and Courts of First Instance. The SJC oversees judicial assignments, transfers, promotions, reprimands and training - all formerly with the MoJ. The SJC President continues to report directly to the king. ¶D. STRENGTHENED JUDICIAL INDEPENDENCE: The Law's architects endeavored to further insulate the judiciary from outside influence. Saudi ministries are similar in function to the U.S. executive branch. The MoJ, represented on the Council of Ministers, for years had significant influence in court system administration and judicial assignments. Realizing this conflict of interest, designers of the 2007 law safeguarded judicial independence by taking court supervision away from the MoJ. For example, the MoJ no longer influences a judge's assignment, transfer, or promotion - the SJC assumes responsibility for such actions. Also previously, the MoJ held the ability to reprimand a judge. Not anymore. The 2007 law's Section 5 dictates that the SJC is the only body allowed to discipline a judge. The MoJ focuses on administration, modernizing the judiciary and ensuring that it functions effectively and efficiently. ¶E. BOARD OF GRIEVANCES: The 1982 Law of the Board of Grievances (BoG) established the independent judicial body of the same name. Completely separate from the Shari'a courts, the BoG hears claims against the government, but its jurisdiction had grown to encompass commercial and other dispute resolution cases. The 2007 changes included a Law of the Board of Grievances alongside the Law of the Judiciary. The Shari'a Courts of First Instance assume cases that had migrated to the Board's jurisdiction. Thus, the Board's responsibilities will narrow, more in keeping with the original intent. The Board's structure parallels that of the Shari'a court system: -- Supreme Administrative Court -- Administrative Court of Appeals -- Administrative Courts The 2007 law establishes a separate Administrative Judicial Council (AJC). The function of the AJC mirrors that of the SJC, except that it administers the Board of Grievances and affiliated administrative courts. Similar to the High Court, the Supreme Administrative Court has a chief and a General Council who decide rulings by majority vote. A Board of Grievances president oversees both the Supreme Administrative Court and the AJC. This position, an extra line in the hierarchy, represents structural difference from the Shari'a courts. -------------- -- BOARD OF SENIOR ULAMA - BASIS FOR LEGAL OPINION -------------- -- ¶4. (U) SAUDI LEGAL FOUNDATIONS: Much as the constitution is the foundation for the U.S. legal code, the Saudi legal system is built upon three key sources: the Qur'an, the Sunnah (teachings of the Prophet),and the fiqh (consensus of opinion of Islamic scholars, also referred to as Islamic jurisprudence). For centuries, Islamic scholars have developed the fiqh, which guides judges in rulings not specifically proscribed in the Qur'an. In Saudi Arabia, the Board of Senior Ulama (religious scholars) oversees research of Islam for legal purposes. This research is the basis for Saudi laws and for the issuance of fatwas. The Grand Mufti heads the Board. ¶5. (SBU) FOUR SCHOOLS OF SUNNI ISLAM: Not surprisingly, the fiqh is subject to interpretation. Sunni Islamic scholars follow one of four schools: Hanbali, Maliki, Hanafi and Shafi'i. Saudi leaders, in 1928, decided to followed the Hanbali school, which was preferred practice in the Nejd, principally for ideological reasons, though they claimed they RIYADH 00000361 004 OF 005 preferred its clarity. (Comment: Other schools have been followed, in small pockets, in the Western Hijaz region and in the Eastern Province. End comment.) Thus, the Hanbali school has been the basis of Saudi Arabia's Shari'a court system since the country's beginnings. The Board of Senior Ulama traditionally have been Hanbali specialists, with nearly two-thirds emanating from the same town in Qassim (the central Saudi/Wahhabi heartland). ¶6. (SBU) A LANDMARK SHIFT: A separate February 14 decree reorganizes the Board of Senior Ulama, fixing membership at 21 and incorporating scholars from all four Sunni schools of thought. This will impact the judiciary by broadening the available interpretations of Shari'a law. It will also be seen as a move to recognize sects outside the Nedj, and to transform the Board into a national body. (Comment: it will be some time, however, before the Shi'a are invited to participate. End comment.) -------------- FEBRUARY 14 APPOINTMENTS -------------- ¶7. (C) NEED FOR A JUMPSTART: Despite the king's support and generous funding, his reform plan progressed little since ¶2007. The public has grown increasingly dissatisfied with backlogged courts and widely divergent rulings. The system deters investors, who find the judiciary opaque. Outdated administrative procedures and inadequate judicial training remain problems in a system employing fewer than 800 judges despite serving a population of over 27 million. ¶8. (C) ASSESSING THE NEWCOMERS: In light of a transforming judiciary and opening interpretation of Shari'a, the new judicial leaders appear fit for the task. They bring reputations as moderate, open-minded reformers, but not as liberals. The king appointed five leaders to positions in the future judicial structure as outlined in the 2007 law. Dissecting the impact of the February 14 appointments warrants a position-by-position look. ¶9. (C) SUPREME JUDICIAL COUNCIL: Few mourn and many applaud the departure of outgoing Supreme Judicial Council (SJC) President Saleh al-Luhaidan. Broadly viewed as an obstacle to reform, al-Luhaidan's ill-considered remarks embarrassed the kingdom on more than one occasion (Reftel B). Al-Luhaidan remains on the Board of Senior Religious Scholars (Ulama),a prominent but less influential role. The incoming SJC president, Saleh bin Humaid, recently earned his reformist stripes by speaking out in support of the king's Interfaith Dialogue Initiative (Reftel A) -- one of the few members of the religious establishment to publicly do so. Bin Humaid moves from his position as Shoura Council Chairman. His religious bona fides are beyond question: bin Humaid has been an Imam at the Holy Mosque in Mecca since 1983, as was his father before him. Bin Humaid has periodically hosted USG contacts, including DRL visitors in 2007 (Reftel D) and as recently as February 15 when he met a twenty-member congressional staffdel. ¶10. (C) MINISTRY OF JUSTICE: The conservative Ministry of Justice (MoJ) has been something of a family business for the al-Sheikh family, direct descendants of Mohammad ibn Abd-al-Wahhab. Sheikh Abdallah bin Mohammad al-Sheikh departs after 14 years as justice minister, moving laterally to chair the Shoura Council. Forty-four-year-old Sheikh Dr. Mohammad bin Abdalkarim bin Abdalaziz al-Issa replaces al-Sheikh. Dr. al-Issa moves from the Grievance Board, where he rose through the ranks to become a judge and, in 2007, Deputy Minister. He possesses an impeccable background in Shari'a law. He acquired a Ph.D. in Islamic Jurisprudence (fiqh) from Imam University in Riyadh, where he also obtained his Bachelors and Masters degrees. Early in his career he worked as a researcher for the Board of Senior Ulama. When it comes to modernizing the courts, al-Issa is the ultimate insider. He worked on the 2001 Law of Criminal Procedure (para 2) and served on a Council of Ministers Expert Committee that studied judicial reform. Later, he helped formulate the 2007 Law of the Judiciary. Little surprise that in a November 2007 meeting with USG officials, al-Issa expressed enthusiasm for the king's reform plans, stating that they will strengthen the concept of an independent judiciary (Reftel C). Now at the MoJ's helm, he has the difficult task of implementing the reforms he helped design. ¶11. (SBU) CHIEF OF THE SUPREME COURT: Sheikh Abdalrahman bin Abdalaziz al-Kelya accepts the role as chief justice of the RIYADH 00000361 005 OF 005 Supreme Court (AKA High Court) for the Shari'a, or regular, court system. A separate decree appointed nine members to the Supreme Court. Al-Kelya brings experience to the job: he has four decades in the Saudi court system. ¶12. (C) BOARD OF GRIEVANCES: Sheikh Mohammad Abdallah bin Mohammad al-Amin al-Shanqiti departs the Board of Grievances (BoG),which handles claims against the Saudi government. Reportedly, he had heart surgery within the past two years and had asked to be relieved of his post. BoG Deputy Chief Mohammad al-Issa moves over and up to lead the MoJ. Sheikh Ibrahim bin Shayie bin Abdallah al-Haqil replaces al-Shanqiti as President of the Board of Grievances. He comes from within the BoG, where, most recently, he headed the commercial division. Sheikh Ali bin Abdalrahman bin Abdalaziz al-Hammad replaces al-Issa as BoG Deputy Chief. Meanwhile, Sheikh Mohammad bin Fahd bin Saad al-Dossari becomes chief judge of the kingdom's first Supreme Administrative Court. A separate decree appointed seven judges to join him on this court. Both the Grievance Board president and chief justice of the Supreme Administrative Council carry the rank of minister, though the latter reports to the former. FRAKER