FN11 The Judiciary 2007 Statute and the Board of Grievances 2007 Statute were enacted by Royal Decree No. M/78 dated 19/9/1428 AH.
FN22 Umm al-Qurra Newspaper, 7 June 1926. It is noteworthy that Umm al-Qurra Newspaper is the official newspaper. Legislative acts (Statutes), royal orders and the decisions of the Council of Ministers are published in this newspaper. The general rule is that legislative acts (statutes) do not come into affect at the date of their announcement in the official newspaper. However, the legislative statute may include a profession declaring a date for its effect. See the Basic Law, Art. (71). It reads, “Statutes are to be published in the Official Gazette and come into effect from the date of publication unless another date is specified in the statute.”
FN33 Experts and writers in the Saudi Public Administration divide the development of the Saudi State into three major stages: (1) creation of the State between 1319 and 1373 AH (1902-1953); (2) establishment of the central administration between 1373 and 1389 AH (1953-1969); (3) development of administration still ongoing since 1390 AH (1969). For a discussion of these stages see, Mohammed Abdualahman Al-Twail, Public Administration in the Kingdom of Saudi Arabia, The Institute of Public Administration, Riyadh, Saudi Arabia, 1995. See also, Taṭawwur al-idarah al-ʿammah fī l-mamlakah al-ʿarabiyyah al-saʿūdiyyah khilāla mi’āt ʿām (1902-1999) wa daur maʿhad al-idarah al-ʿammah fī tanmiyaha (Development of Public Administration in the Kingdom of Saudi Arabia during One Hundred Years and the Role of the Institute of Public Administration in its Development), Institute of Public Administration, Riyadh, Saudi Arabia, 1419 AH 1999.
FN44 Art. (17-24) of the Council of Ministers Statute which was enacted by Royal Order on 12/7/1373 AH (1954) dealt with the Board of Grievances affairs. It should be noted here that this Statute was amended when a new Council of Ministers Statute was enacted by Royal Decree No. 38 dated 22/11/1377AH (1958). The latter Statute was amended by the new Council of Ministers Statute, enacted in 1993. For more on the Council’s Statutes of 1954 and 1955 see, Summer Scott Huyette, Political Adaptation in Saudi Arabia (Boulder, CO: Westview Press, 1985).
FN55 Art. (18) of the Council of Ministers Statute which was enacted by Royal Order on 12/7/1373 AH (1954).
FN66 Ibid., Art. (21).
FN77 It was enacted by Royal Decree No. 2/13/9578 dated 17/9/1374 AH (1955).
FN88 In addition to its general jurisdiction over grievances and complaints, the Board of Grievances was provided with specific jurisdictions in different areas.
FN99 It was cancelled by the Prime Minister’s Decision No. 391 on 6/1/1384 AH (1964).
FN1010 See, e.g., the Board of Grievances Decision No. 39/86 in 1401 AH (1981) and Decision No. 35/175 in 1400 AH (1980).
FN1111 During that period of time, the King was not considered to be the head of the Council of Ministers. The Prime Minister was his heir apparent. Therefore, when the Board of Grievances was established, the King was Saud ibn Abdulaziz, and the Prime Minister was his brother, Faysal ibn Abdulaziz, who became King in 1964 and at that time held the office of the Prime Minister.
FN1212 See Art. (2), Clause 3, of the Board of Grievances 1955 Statute.
FN1313 Board of Grievances Decision No. 34/T in 1402 AH (1982).
FN1414 The Chief Judge’s letter No. 1/3298 on 8/10/1387 AH (1967). See Muhammad bin Qassim, Fatawā wa rasāʾil al-Shayk Muḥammad bin Ibrahīm Al-Alshayk, 1st edn. (Mecca: 399 AH), at 250.
FN1515 Board of Grievances 1982 Statute, Art. (1).
FN1616 Ibid., Art. (8).
FN1717 Two points are worthy of illustration here. First, government contractual disputes can be submitted to arbitration; however, the approval of the Council of Ministers has to be obtained before such action. More importantly, the Council of Ministers can alter the arbitrator’s decision. See Art. (3) of the Arbitration Statute, enacted by Royal Decree No. M/46 dated 12/7/1403 AH (1983). Second, the Board of Grievances does not decide on two types of government contracts even though Art. (8) of its 1982 Statute explicitly grants the Board the authority to decide all types of government contracts. All disputes related to government labour contracts are adjudicated by the Labour Dispute Settlement Committee and later will be adjudicated by the Labour Courts after they have been established.
FN1818 It should be noted here that disciplinary power over government employees is in general divided between two authorities: the Board of Grievances and the concerned ministers and heads of independent administrative agencies. The Board of Grievances, according to Art. (8/1/E) of its 1982 Statute, is authorized to try disciplinary suits against public employees that are filed by the Board of Surveillance and Investigation. The Civil Service Disciplinary Statute which was enacted by Royal Decree No. M/7 on 1/2/1391 AH (1971) declares the Board of Grievances to function as a Disciplinary Court in the following situations: (1) if the Board of Surveillance and Investigation intends to disciplinarily dismiss a particular employee; (2) if two employees who work for different administrative agencies together commit offensive conduct under the Civil Service Disciplinary Statute and the Civil Service Statute; (3) if a public employee commits an offensive conduct under the Civil Service Disciplinary Statute and the Civil Service Statute while temporarily working for another public authority or while being on its premises; and finally (4) if the public employee who will be punished has already retired. It seems that such authorization is attributed either to the seriousness of the punishment that will be inflicted on the employee, so the Board will provide for fair and impartial trial, or to the nature of the committed offenses, so the Board will solve any conflict of jurisdiction between administrative agencies and ministries. The concerned ministers and heads of independent administrative agencies, on the other hand, are authorized to impose certain disciplinary punishments on their subordinate officials. They have disciplinary authority over their employees in all situations except of those situations that are under the authority of the Board of Grievances. Their decisions can be reviewed by the Board of Grievances under Art. (8/1/B) of its 1982 Statute. For additional discussions about the Saudi Civil Service Disciplinary System see, Abe Mandi Masadeh, “An Analysis of the Civil Service Disciplinary System of Saudi Arabia and Kuwait: An Islamic Perspective and A Comparative Overview”, 10 Dickinson J. Int’l Law, (1992) 461. It should be noted here that the author of this article does not include any discussion about maintaining disciplinary punishment by disciplinary councils.
FN1919 The jurisdiction of the Board of Grievances over criminal cases and commercial disputes is temporary. The Explanatory Notes of the Board of Grievances 1982 Statute declared that:The Board has also become concerned with the adjudication of panel cases . . . However, as the Board is a body of administrative law, then its panel jurisdiction is temporary until the necessary arrangements have been made for the Shari’ah Courts to adjudicate such cases in accordance with the Judicial System Statute. However, although the Explanatory Notes of the Board’s 1982 Statute declared that the Board of Grievances jurisdiction over criminal cases is temporary, the Board of Grievances was granted the jurisdiction over criminal cases under different Statutes.
FN2020 The Board of Grievances was authorized to adjudicate most of the commercial disputes. It has been granted this authority by Royal Decree No. M/63 on 26/11/1407AH (1987). It was clearly indicated that the Board’s jurisdiction over commercial disputes would be temporary until the implementation of the Council of Ministers Resolution No. 167 on 14/9/1401AH (1989) which prescribed the establishment of specialized commercial, labour and traffic courts.
FN2121 The Board of Grievances authority to enforce foreign judgment was granted by Art. (8/1/G) of the Board’s 1982 Statute and its authority to enforce foreign arbitration decisions was granted by Royal Decree No. M/11 dated 16/7/1414 AH (1994) after the ratification of the New York Convention on Arbitration Decisions. Consequently, the Board has been granted the authority to enforce foreign judgment and foreign arbitration decisions regardless of the nature of the disputes, whether they are administrative, commercial, labour, or civil disputes. For more discussion regarding the issue of enforcing foreign arbitration decisions in Saudi Arabia see, Kristin T. Roy, “The New York Convention and Saudi Arabia: Can a Country Use the Public Policy Defense to Refuse Enforcement of Non-domestic Arbitral Awards?”, 18 Fordham Int’l Law J. (1995) 920.
FN2222 The ʿulamā consider commercial banks to be un-Islamic banks because their activities involve ribā (interest or usury) which is prohibited explicitly by the Qurʾān and Prophetic Hadīths. Consequently, Saudi banks have faced problems regarding non-performed loans: when the borrower refused to perform the loan, courts always rule against banks. They always commonly disapprove of interest on loans. For more information on this issue see, Peter Wilson, A Question of Interest (The Paralysis of Saudi Banking), 1st edn. (Boulder, CO: Westview Press, 1991) pp. 93-136. Actually, not only the Shariah Courts, but also the Board of Grievances, have refused to decide such disputes on the basis of their illegality. The standpoint of Shari’ah Courts about bank loans, as well as on cases that involve non-Islamic banks, led in 1987 to the establishment of the Banking Disputes Settlement Committee under the supervision of the Saudi Arabian Monetary Agency pursuant to the Prime Minister’s Decision No. 8/729 on 10/7/1407 AH (1987). This committee is authorized to adjudicate all disputes that may arise between banks and their customers. The most striking aspect of this committee is that, although the members of this committee are not independent judges, their decisions are final and the appeal of their decisions is to the committee itself.
FN2323 The Government has found that it is critical for the expansion of commerce and industry to have insurance instruments; however, it could not have enacted regulations promoting insurance activities or create an insurance corporation because insurance contracts under Shari’ah law, according to the Board of the Senior ‘ulamā and other ‘ulamā, are prohibited because they are considered to be aleatory contracts, which are prohibited explicitly in Hadīths of the Prophet, and they involve some form of ribā. In addition, they involve the concept gharar, which means gambling or speculation. The policyholder in an insurance contract does not recover unless a loss has occurred, which is not a guaranteed incident. Even if it does occur, the policyholder may recover more than what he has paid or vice versa. Because of this rule, the Government had to resort to the ʿulamāʾ to find an acceptable Islamic solution. The ʿulamā issued a fatwā legalizing the use of cooperative insurance, wherein each policyholder is a partner in the corporation and all corporation funds are invested. This type of insurance is not seen to be immoral because there is no ribā. If there is a loss, the policyholder recovers and, if there is no loss, the policyholder recovers a return. It is strictly a non-profit organization that is designed to meet the need for insurance without compromising Shari’ah principles. (See the Board of the Senior ʿulamās fatwā No. 55 and fatwā No. 51 on 4/4/1397 AH (1977)). Consequently, relying on that fatwā, in 1405 AH (1985) the Government created the National Corporation for Cooperative Insurance to provide adequate insurance protection to government projects, corporations and individuals. The company was established pursuant to the Royal Decree No. M/5 on 17/4/1405 AD (1985). The Company has its ownership shared between the following three government organizations: (1) the Public Investment Fund, (2) the general Organization For Social Insurance, and (3) the Retirement Pension Agency. Soon after the company started its activities, it became clear that there was no difference between the company and any other commercial insurance company. Thus, the Board of the Senior ʿulamā issued a new fatwā illustrating that the Corporation’s functions were not in accordance with the framework of the Board’s earlier fatwā. It is very important to note here that neither the Shari’ah Courts nor the Board of Grievances accepts to hear disputes that are based on insurance contracts. In fact, it has become a well-established precedent by the Board of Grievances that the Board refuses to hear disputes between insurance companies and their clients. See the Board’s Decisions No. 140/T/3 in 1407 AH (1907). However, if a case partially involves a dispute that is based on an insurance contract, the Board of Grievances usually accepts to decide the case, while ignoring the insurance contract dispute. Because neither the Shari’ah Courts nor the Board of Grievances has accepted to adjudicate disputes that are based on insurance contracts, the Ministry of Commerce has been authorized by the Prime Minister, Decision No. 4/s/8151 on 1398 AH (1978) to decide disputes between insurance companies and their clients in a consensual way between adverse parties. Finally, an administrative committee was established, according to the Supervision of Cooperative Insurance Companies that was enacted by Royal Decree No. M/32 dated 2/6/1424 AH (2004), to decide disputes between insurance companies and their clients.
FN2424 Board of Grievances Decision No. 7/B in 1400 AH (1980).
FN2525 Board of Grievances 1982 Statute, Art. (1).
FN2626 Ibid., Art. (6).
FN2727 Although the Explanatory Note for the Board’s 1982 Statute does not provide for any reason for vesting the President of the Board with the authority to establish other branches for the Board and to determine the number, formation, and geographical and subject matter jurisdiction of the Board’s circuit courts, it seems that the reason is to have more flexibility in order to meet the development and expansion of administrative activities throughout the Kingdom.
FN2828 The jurisdiction of the circuit courts is defined by several decisions of the Board President.
FN2929 Board of Grievances 2007 Statute, Art. (1) was enacted by Royal Decree No. M/78 dated 19/9/1428.
FN3030 Criminal cases will be adjudicated by criminal courts after they have been established. According to Art. (9) of the Judiciary 2007 Statute states that:Courts shall consist of the following: (1) Supreme Court. (2) Courts of appeals. (3) First-Instance courts, which are: (a) General courts, (b) Penal courts, (c) Family courts, (d) Commercial courts, (e) Labour courts. Each shall have jurisdiction over matters brought before it in accordance with this Law, the Law of Procedure before Shari’ahʿah Courts and the Law of Criminal Procedure. The Supreme Judicial Council may establish other specialized courts upon the approval of the King.
FN3131 Commercial disputes will be adjudicated by Commercial Courts after they have been established. See Art. (9) of the Judiciary 2007 Statute.
FN3232 The Board of Grievances, when reviewing decisions of administrative committees, study the language of the respective regulations of these committees. If they provide finality to the committees’ decisions, the Board always refuses to review such decisions on the basis of lack of jurisdiction. However, in order to preserve individual rights, the Board has in recent cases developed a new approach to review decisions of the administrative committees under Art. (8/1/B) of the Board’s 1982 Statute, although their respective regulations provide finality to their decisions. For example, the Board has accepted to adjudicate cases involving taking private property for the public use, if the properties were procedurally or substantively valued in contradiction to the Public Domain Statute. In one case, the Board overturned the decision the Public Domain Committee because the committee was not formed according to the Public Domain Statute. It seems that if the Board is confronted with defective procedural or substantive decisions of other committees whose respective regulations exclude judicial review by the Board, it is willing to resort to the new approach that it developed to review decisions of the Public Domain Committee. Dealing with complaints against administrative committees, whose respective decrees are silent about the finality of their decisions, the Board of Grievances has defined judicial decisions and distinguished them from administrative decisions, and on a case by case basis has applied this definition. A judicial decision, according to the Board of Grievances, is a decision solving controversial or disputable issues between two parties, issued by a body that is granted by law the authority to adjudicate disputes while performing its judicial function. As indicated earlier, decisions of some administrative committees according to their respective regulations are reviewable by the Board of Grievances, if they are appealed within the time limit that is prescribed by these regulations, which for all these committees is sixty days that starts from the time the concerned parties become aware of the decision. These regulations, however, do not constitute any standard to be applied by the Board when reviewing such decisions, nor do they declare the scope of judicial review that can be placed by the Board of Grievances. Notwithstanding, the Board of Grievances has differentiated between such committees when reviewing their decisions without textual supports.
FN3333 These committees were established under the supervision of the Ministry of Finance pursuant to the Unified Custom Statute of the GCC Countries which was enacted by Royal Decree No. M/41 on 3/11/1423 AH (1953) to try and adjudicate all criminal cases under the Custom Statute, such as smuggling of goods.
FN3434 This Committee was established under the supervision of the Saudi Arabian Monetary Agency pursuant to the Prime Minister’s Decision No. 8/729 on 10/7/1407 AH (1987) to adjudicate all disputes that may arise between banks and their customers: Shari’ah Courts and the Board of Grievances have rejected adjudication of such disputes. The most striking aspect of this committee is that the appeal of its decision is to the committee itself.
FN3535 This Committee is established pursuant to the Stock Market Statute enacted by the Royal Decree No. M/30 dated 2/6/1424. the Board of Grievances has refused to review decisions of the Stock Market Committee on the basis that the Board does not have the jurisdiction to review its decision. See for example, The Board of Grievances Decision No. (830/ES) in 1430 AH (2009), and the Board of Grievances Decision No. 617/ES, 1430 AH (2009).
FN3636 The Executive Plan for the Judiciary 2007 Statute and the Board of Grievances 2007 Statute was enacted by Royal Decree No. M/78 dated 19/9/1428 AH.
FN3737 Board of Grievances Decisions No. 21/86 in 1400 AH (1980) and No. 4/86 in 1401 AH (1981). For additional discussion about this issue refer to supra note 18.
FN3838 Article (27) of the Statute of the Judiciary Statute states that:If a case is brought before a court subject to this Statute and the same case is also brought before a court of the Board of Grievances or of another authority having jurisdiction to decide on certain disputes, and if both courts insist on reviewing the case, or both decline to do so, a petition shall be submitted to the Conflict of Jurisdiction Committee at the Supreme Judicial Council for designating the competent authority. This Committee shall be composed of three members: a member from the Supreme Court to be selected by the Chief Judge of the Court, a member from the Board of Grievances or from the other authority to be selected by the President of the Board of Grievances or the other authority, as the case may be, and a member from among the full-time members of the Supreme Judicial Council to be selected by the Chairman of the Council, who shall head this Committee. This Committee shall also have jurisdiction to decide the dispute which arises in respect of execution of two conflicting final judgments, one of which is rendered by a court subject to this Statute and the other by a court of the Board of Grievances or the other authority.
FN3939 Board of Grievances 1982 Statute, Art. (28).
FN4040 Article (6) of the 2007 Judiciary Statute states that:In addition to the other powers provided for in this Statute, the Supreme Judicial Council shall: (a) attend to judges’ personnel affairs such as appointment, promotion, disciplining, assignment, secondment, training, transfer, granting of leaves, termination of service and the like, in accordance with established rules and procedures, in such a way as to guarantee the independence of the judiciary. (b) issue regulations relating to judges’ personnel affairs upon the approval of the King. (c) issue judicial inspection regulations. (d) establish courts in accordance with the nomenclatures provided for in Article 9 of this Statute, merge or cancel them, determine their venue and subject jurisdiction without prejudice to Article 25 of this states and constitute panels therein. (e) supervise courts and judges and their work within the limits stated in this Statute. (f) name chief judges of courts of appeals and their deputies from among the appeals judges and chief judges of courts of first instance and their assistants. (g) issue rules regulating jurisdiction and powers of chief judges of courts and their assistants. (h) issue rules specifying the method of selecting judges as well as procedures and restrictions pertaining to their study leaves. (i) regulate the work of Trainee Judges. (j) determine equivalent judicial work required to fill judicial ranks. (k) make recommendations relating to the Council’s established jurisdiction. (l) prepare a comprehensive report at the end of each year including achievements, obstacles and relevant recommendations, and bring the same before the King.