LEGAL SYSTEMS IN THE GULF STATES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP09T00207R001000100011-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 16
• Document Creation Date: December 22, 2016
• Document Release Date: September 23, 2011
• Sequence Number: 11
• Publication Date: February 1, 1983
• Content Type: REPORT

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Legal systems in the Gulf States
BY Dr S. /1. Amin, Senior Lecturer in Law,
Gla.vgott' Collc,ac o/*Technoloat'.
i)urine this century, three distinct leg'd sv:stcnls haa%e been administered X~ltllill tile
Gulf region. They are (a) English law or And lo-Mohammedan (b) Shari:ih or
Islamic law, and (c) the National Legal Systems of each inJi?.idual Gulf State,
c.1*. Iranian Legal System.
The British predominance in the Gulf was formally established in 1520 under the
terms of the "General Treaty v.ith the Arab States for the Cessation of Plunder and
Piracy by Land and by Sea". Bahrain Order in Council 1913 and subsequent Orders
enforced British Indian laws in the Gulf Protectorates. This was allegedly necessitated
by the lack of "satisfactory legal and judicial systems" in Bahrain and other British
Protectorate States. This was not true as far as the Muslims v~crc concerned. The
nationals of the Gulf States were satisfied with the operation of the Islamic system
assimilating different degrees of local cutoms. The introuuction of English law into
the Muslim world, particularly British India and the Gulf area, produced a mixed
legal system known as "Anglo-Mohammedan law". Although the influence of English
law is still vividly present in both Indian and Pakistani legal svst~~rn,. all Gulf States
have developed their own codified legal systems since attaining independence.
Bahrain, Qatar, and the seven Trucial States were commonly know n as the British
Protected States because of their treaty relations with the United Kingdom (1820-19711).
love cver, the Gulf States did net enjoy the status of standard protectorates in which
the protecting Power acts merely as agent for the protected Pov~er in conducting
international affair's. On the contrary, the U.K. was solely responsible for the
international affairs of the Gulf Protectorates in the sense that the protectorates
themselves lacked the legal capacity to conclude directly any international engagements.
I urthen,iore, the internal affairs of these Protectorates vycrc gcnerally, ii' not strictly,
controlled by the U.K. The British Protectorates attained independence in the
follo ing order: Kuwait on June 19, 1961, Bahrain on Auc. I5, 1971, Qatar on
Sept. 3, 1971, and the UAE on Dec. I, 1971.
I'm-thcrmore, English common law has been adopted as the inspiring source of
"modern" or "imported" law in many parts of the Islamic ',~ orld including Pakistan,
Malaya, Northern Nigeria and the Sudan. Only Indonesia has been influenced by the
Dutch model, whereas the majority of the Islamic States (e.g.. An_lo-phone African
States, Arab States and Iran) have been influenced by the French system.
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LLOYD'S MARITIME AND COMMERCIAL LAW
istinct Prior to British withdrawal from the lthe Britishecourt rexer~saig impore d
systems in operation in the lower Gulf State
law and the local courts administering the Shari-ah/Islamic law.
2. SHARI-AH/ISLAMIC LAW ath" or "the right path") is a
Islamic law or as it is known in Arabic Shari-ah ("p
world major system distinct from nboth civil and common law systems. Unlike ot an independent branch of scholarship, but other
major legal systems, Islamic law is vine revelati
that one of the facets of the Islamic faith e thelrulesof behaviourofor the
the Muslim jurists and theologians havPronounced
the relations among men and between man and God. The science
believers governing
of Islamic law, called fiqh, is divided into two major parts: usul usul (roots) ) and furu
upon which
(branches). The "roots" establishes the methodology and the procedures
the legal solutions should be based. The other basic soled doctrine Iof the "branches" (furu),
containing the systematic elaboration
There are four primary sources of Islamic law: (a) the Quran, (b) the Sunna (the
Analogy
Prophet's traditions), (c) Consensus of Muslim Jurists (lima), and (d) and odd
(Qiyas) or reasoning (aql). Only about 80 verses (out of a total 6,000 aQuranic verses) are concerned with law. The Sunnah includes the Prophet's hadith
(speech), deeds or tacit approval.
12 -h lima, and the
t
law -e. the Quran, the a I
Mohammed only
The primary sources of Isla
the lifetime of
rin
I t
t d
h
n
g
u
a
se t
e se
h
in
clivasl should be distinguished . _ L.... t, Aprived its authority from clear
subordinated sources of isia--,~. Ian,^~~ R"1 fl sides these four primary sources, u?
(a) Al-Istihsan, or the oevtauv~1-i rPacnn that requires such deviation.
A another rule for a more icic.a--- ..,b-- - public interest to which
t0 (b) A1-Istislah, or the unprecedented judgment motivated by p 1
refer
itl
li
y
c
neither the Quran nor the Sunnah exp
eech and
'~
th in s
p
society, bo
~
and the usage of a particular
t
om
(c) AI-rf, or the cus
I
the Quran and the Sunnah ttne rrup" , t "--- --
ist independently of man. The Shari-au
ex
h
The Shari-ah or Islamic law is the legal system
Its basics - --- ____ as contained
1;--o of a large section of the world's population.
_ , ti- traditions of the ea
ey
Muslims), are pervasive-that is, t
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the I
Afgh
wort,
Sunii
Sunr
on tl
equil
a ba
text
(b) I
Twel
W
State
scho
Kha
UA I
Shat
ea s
In rc
State
Islay
Islay
thou
Prot
pmb
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s a
ler
my
hat
the
nce
uru
rich
ru),
(the
logy
odd
tdith
A the
only
clear
other
) and
s, the
ted the
fined in
c early
ri-ah is
the law of a gist area stretching from Northern Nigeria to Indonesia and from
Afghanistan to Ceylon. As Islamic law has not been uniformly applied throughout the
world, different schools of interpretation have emerged. The main division is between
Sunni schools on the one hand and the Shi'a schools on the other. The Orthodox
Sunni schools of law are (a) Malik: (strict adherents to Sunnah and reluctant to rely
on the role of opinion), (b) Hanbali (relying on reason and opinion, using analogy and
equity as sources of law), (c) Shafi'i (the closest of Sunni schools to Shi's schools-with
a balanced and reconciling attitude in law), and (d) Hanbali (strict adherence to the
text of the Quran). Among the Shi'a schools, reference may be made to (a) Zaydiyah,
(b) Ismaili and (c) more importantly Ja'fari, otherwise known as Imamiyyah or
Twelvers.
Within the Gulf region there are six different Shari-all schools of law, Iran's official
State religion is Shi'a which has its Ja'/ iri/lniamiyrah school. Oman has her traditional
school of Ebadi, (derived from Khawarij who fought against Ali, the Fourth Islamic
Khalif). Other Gulf States of Iraq, Saudi Arabia, Kuwait, Qatar, Bahrain and the
UAE follow to varying degrees different orthodox schools of Malik, Hanbali, and
Shafi'i.
The term Islamic law should be used to mean Shari-ah law only. The term, therefore,
does not apply to the present laws as applied and administered in the Islamic countries.
In referring to the law of individual Islamic countries reference should be made to the
State/Municipal law of the country in question. However, unless it is specified, the
Islamic law or Shari'a should be taken as the Islamic law common to all schools.
Islam, like Judaism, has the character of a jural order which regulates the life and
thoughts of the believer according to an ideal set of revelations communicated to
Prophet Mohammed. Thus Islam established its own order of right and wrong,
embodying its own justice, as the correct and valid one.
In the Islamic legal theory only God, as the source of ultimate authority, has
originally a law of contracts, not of contract; it has been observed that Islamic law
It is disputed whether, like Roman law, the Islamic law of obligations was
knowledge of the exact law. In the same way as natural law was regarded in the West
as the ideal legal order consisting of the general maxims of right and justice, so Islamic
law was in the eyes of the Muslims the ideal legal system. As a divine law it is regarded
as the perfect, eternal and just law, designed for all time and characterised by universal
application to all men.
did not have a general concept of contract but only rules governing a number of
individual kinds of contracts. This view, however, was later rejected and all
mutually agreed contracts were enforceable whether or not formulated under one of
the individual kinds of contractual legal frameworks called oqud. Furthermore,
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LLOYD'S MARITIME AND COMMERCIAL LAW
the law of some Islamic countries (such as Art. 10 of the Iranian Civil Code)
formally sanctioned all private contracts regardless of their formal specifications. The
traditional view is no longer upheld in the contemporary Muslim world. Agreements
which do not conform to one of these legal frameworks are nowadays considered
as binding in Shari'ah. Indeed, to suit the realities of the commercial and private
situations of the changing social-economic orders various frameworks or oqud have
been modified and varied considerably from their simple genesis originated in early
Islamic eras. Furthermore, the legal framework of Solh, namely agreement, originally
designed for the particular purpose of the settlement of disputes, has served in later
times as a method to accommodate almost any sort of private contracts.
By way of example the legal concepts of "contract of service" and "contract for
services", as currently used in advanced legal systems, are clearly understood and
distinguished in Shari-ah. However, the terms themselves are non-existent in Shari-ah
and even quite new to the contemporary students of law in vast parts of the Muslim
world. There is certainly a need for comparative legal studies in such fields. One may
use the term "service contract" in Islamic law to include both the contract of service
and the contract for services in Sharia-ah as well as the contemporary Islamic States'
laws.
Although a study of the Shari-ah is called for, a study of the development of the
contemporary laws of the Islamic States is much more important. Such studies will
demonstrate how the Islamic States import, adopt and modify foreign laws, whereas
at the same time they Islamise the alien concepts. Thus the traditional "models"
should be kept in focus, compared and contrasted. This "reformative" approach
would interpret the existing provisions of Islamic laws in a way which is more suitable
to the modern world.
A glance at the obvious difference of the political, social, economic and industrial
scenes in the Islamic countries on the one hand, and the Western world on the other,
justifies any difference in the laws compared. However, despite all differences in
terminology and legal structure in Islamic and Western jurisdictions, there is not much
contrast in essence as both systems are, broadly speaking, based upon the same
foundation, i.e. fairness and common sense.
3. NATIONAL LEGAL SYSTEMS
Iran, since 1906, Iraq, since the 1920s, Saudi Arabia, since the 1930s, Kuwait, since
have developed
1971
i
,
nce
1961, Oman, since 1967, Bahrain, Qatar and the UAE, s
are distinct from ea*
i
i
ons
ct
modern codified system of municipal law. These jurisd
other and from the previously common traditional Islamic law. The trend in all Gt
States was to adopt new codes of law comparable to the European and Ameria
legislat,
simply
inarriai
wherea
compat
Iran (I'
Gulf St
The i
arc Sur
(called
the ima
Prophci
Khalif/I
of Persi
his son-
Mohair
(Abu &
his own
of succc
In th,
authorit
mmat
6mat
powc
4i
ha
ha
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Ic)
he
its
ed
ate
the
rly
dly
.ter
for
mnd
-all
;lim
nay
vice
ties'
the
will
areas
le Is"
oach
,able
strial
ther,
es in
nuch
same
since
ped a
each
Gulf
;rican
legislation. In particular, Bahrain adopted several British codes as her municipal law
simply by translating the English texts into Arabic. In general, only laws relating to
marriage, divorce and succession remained under total influence of the Shari-ah
whereas all major areas of Public and Private law (and particularly commercial and
company law) were imported from the West. However, since the Islamic Revolution in
Iran (1979) there has been a tendency to revive the Islamic legal traditions in most
Gulf' States.
3.1. Iran
The majority of Iranians are Shi'a as opposed to the majority of the Muslims who
are Sunni. The Shi'as differ from the Sunnis in their concept of constitutional law
(called caliphate in Sunni school and imamate in Shi'a school). The Shi'as believe in
the imamate doctrine. The doctrine is relevant to the issue of "succession" of the
Prophet Mohammed. The Sunnis believe that the Muslim community could elect the
Khalifjleader. The Shi'as, who seem to perpetuate the previous monarchical tradition
of Persia, disagree. Whereas the Sunnis acknowledge that Mohammed recommended
his son-in-law (Ali) to assume leadership after his own death, the Shi'as believe that
Mohammed duly appointed Ali as his successor. They regard the first three Khalifs
(Abu Bakr, Omar and Othoman) as usurpers of Ali's seat. After Ali, the Shi'as believe
his own sons succeeded him as Imam, but the 12th Imam, who was the last of the line
of succession, disappeared in 873 A.D. and has since remained "in occultation".
In the absence of the 12th Imam, the Shi'as considered themselves not subject to the
authority of the Islamic States (usually dominated by Sunnis). In the course of history,
the Shi'as have indiscriminately considered the authority of secular sovereigns over
Ummat as "illegal" on the ground of the doctrine of Imamat. Since the leadership of
Ummat is an exclusive right bestowed by Allah upon the 12th Imam, all other rulers
in power can be described only as usurpers of the divine right of Imamat.
The illegality of secular sovereignty has never been disputed by Imamiyah jurists.
Such has been the strength of the Imamat doctrine that none of the rulers of the Shi'a
community has ever claimed to be the leader of Ummah or to derive his authority from
the Imam. The only exception is the claim by the Fatemite Khalifs who were, of
course, Ismaelite not Twelvers. Among the Twelvers, when the Safavit dynasty came
to power, they nominally acquired their authority from grand jurists who were
acknowledged to represent the Imam in his, it seems eternal, absence. In real terms,
however, the authority was vested in the Safavit Shahs who would appoint jurists
both nationally and locally. It is, therefore, the very first time in the course of history
that an Imamiyah jurist (in the person of Ayatollah R. Khomeini) has actually become
the sovereign of the Shi'a community. This the ayatollah calls "the authority of the
jurist",
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The establishment of the Islamic Republic in Iran (1979) has profoundly affected all
aspects of Iranian life, not the least the legal system. It is interesting to note that the
well established Principle of Imamat is absolutely irreconcilable with the notion of
Republicanism. Republicanism is an open contradiction to the Imamat doctrine
based on succession by descent from the Prophet.
The jurisdiction of the Shi'a jurist had been steadily declining since the First
Iranian Constitution (1906). The independence of the Mullas, especially in legal terms,
was practically stopped by the rise of Reza Shah Pahlavi in 1924. Secular judicial
machinery has now been established in Iran for more than 60 years. The judiciary
under the jurisdiction of a Ministry of Justice was until 1979 headed and staffed by
secular educated lawyers and jurists.
After the Ottomans, Iran was the first Islamic country which accepted the codi-
fication of its laws by promulgating the Iranian Civil Code 1927-35. Certain aspects
of law such as those concerned with marriage, divorce, succession and inheritance
are directly influenced by Islamic law. In some areas, such as the law of contract,
the code is a cross-breed between Islamic tradition and the French Civil Code. In
many areas, such as Iranian Business Law, the system is basically Western.
Since the Revolution of 1979, and on the grounds of the Imamat doctrine, the
present Iranian authorities prima facie regard the bulk of the existing secular legislation
and legal precedents as ipso facto invalid so far as they contradict the Imamiyah law.
This position is evident in all legal developments occurring in Iran at the present time.
By way of example, reference may be made to the establishment of independent
revolutionary courts under the jurisdiction of Shi'a jurists, the virtual abolition of the
no-longer functioning Iranian judicial machinery, the strict enforcement of Imamiyah
law in criminal areas (such as the penalty of death for homosexuality, flogging for
drinking alcohol, stoning to death for prostitution and amputation of hands for theft).
Fortunately or unfortunately, there is no uniform pattern of law enforcement through-
out the country. The Kerman Islamic Tribunal is particularly known for its rigid
application of the Islamic penal code. For instance, as reported by the Agence France
Presse, two thieves had the four fingers of their right hands cut off in Kerman on July
27, 1981. All aspects of family law and women's rights have also been affected (the
"temporary marriage" is now "legal"; the female age limit for marriage has been
reduced from 18 to 13).
The foregoing leaves no doubt that the Iranian legal system is undergoing a ver)
substantial change of structure. An investigation into this legal development is
therefore, necessary not only for all its academic merits, but also for clarifying the leggy
position in various uncertain areas for the benefit of those lawyers and practitioners
Iran and abroad who are engaged in the legal profession dealing with Iranian la'
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The source,
However, t,
from clear.
Iraq owe,
similar to tl
reorganisati
affected fort
within the J1
disputes aril
imported th
adopted fro
Code in Lan
was, howeve
in maritime
Varna, writij
on trade, rt
commercial
The Otton
jurisdiction. '
of law. Altl -
legislation in
Majellah. Fo
Majellah
e 1863 an
91
man Coi
the ii
the F
tern
with
'the co,
tged
ten
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di-
ets
ice
ict,
In
the
tion
law.
i me.
dent
& the
iiyah
,g for
heft).
ough-
rigid
ranee
n July
,d (the
s been
a very
ient is,
he legal
aners in
,an law.
LEGAL SYSTEMS IN THE GULF STATES
The sources for such research as far as the lmamiyah law is concerned is voluminous.
I-lowever, the future Iranian-Islamic legal system as it is now being developed is far
from clear.
3.2. Iraq
Iraq owes its legal system to the Ottoman Empire. The Iraqi system is in this way
similar to that of Libya, Syria, Lebanon, Jordan and Egypt. The Turks began with
reorganisation of the judicial system in the 1830s and the first judicial reform that
affected foreign trade was the creation in 1840 of a new ad hoc commercial tribunal
within the Ministry of Commerce. This tribunal had a limited jurisdiction to deal with
disputes arising between European and local merchants. From then on the Ottomans
Of the codes
al reform
l
i
h
.
eg
r
e
imported the European codes of law as part of t
adopted from European systems, the first and most important was Commercial
Code in Land and Sea of 1849 (enacted on 18 Ramazan 1266 Hijrah). Maritime law
was, however, not dealt with at this stage and thus any problem arising from disputes
in maritime business was solved by consulting a foreign law. The British Consul in
Varna, writing to the British Ambassador in Istanbul in November, 1859, to report
on trade, reported that "The Code Napoleon" was generally consulted in all
commercial and maritime matters by both Muslims and Greeks.
The Ottoman Empire codified the existing laws in the Empire and reformed the
jurisdiction. The Ottoman Civil Code (called al Majellah) was based on Hanaii school
of law. Although Islamic influence was very substantial, the subsequent Ottoman
legislation introduced other concepts which contained some differences with the
Majcllah. For instance, the Ottoman Family Law had material differences with the
old Majcllah provisions. The Ottomans also promulgated several European-styled
codes, such as the Ottoman Commercial Code 1849, the Penal Code 1858, Maritime
Code 1863 and the Civil Procedure Code 1879. The Civil Procedure Code and original
Ottoman Commercial Code were based on French law. As part of the Ottoman
Empire, the inhabitants of Iraq were subject to these codes.
Aftcr the First World War and the collapse of the Turks, Iraq became a British
mandate territory. Upon its formal independence in 1922, Iraq signed a Treaty of
Alliance with the U.K. This Treaty recognised the elected ruler of British-dominated
Iraq as the constitutional King of the country. Although the U.K. had always formally
acknowledged Iraq's "national" sovereignty, the legal status of Iraq was until 1922
an "A" class mandate. Significantly, capitulations were regarded as suspended
within the terms of Art. 9 of the Iraq-U.K. Treaty of 1922.
Between 1914 and 1921, during direct British administration, no change was made
in the commercial, civil and maritime codes which had been promulgated by the Turks;
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and all these codes remained in effect after the national administration was established
in 1922-32.
From the 1930s onwards Iraq began to develop its own national legal system and in
doing so was much influenced by the Egyptian legal system. Many Iraqi law students
would go to Egypt to study law, particularly for higher degrees and research. Many
more would consult Egyptian legal literature in Iraq both for academic and professional
purposes. Egyptian legislation and Egyptian professors were (and still are to some
lesser extent) cited by their disciples in the Iraqi law schools and in Iraqi legal works
and to a lesser degree in the Iraqi courts and tribunals. So far as substantive laws were
concerned, Iraq in 1936 revised the Ottoman Commercial Code to adopt the similar
amendments made by Turkey in the Ottoman Code. Again in 1951, the Iraqi Civil
Code repealed the former Ottoman legislation. The 1951 Code which is still in force
consists of 1383 Articles. The main Iraqi legislation development since then occurred
in 1970 when Iraq redrafted and enacted its new Commercial Code (Law No. 1490/
1970). So far as the procedural law is concerned, Iraq first continued to enforce the
Ottoman law of procedure and evidence of 1879. However, certain aspects of the Iraq
law of procedure and evidence were reformed in 1951 partially by the Civil Procedure
Code of 1951 (Law No. 28/1951) and the Civil Law Code 1951 (Law No. 40/1951).
It was, however, only in 1953 that the Iraqi Ministry of Justice started the preparation
and drafting of a new civil procedure law. These deliberations resulted in the Civil and
Commercial Procedure Code 1956 (Law No. 88/1956) which contained a total of 255
Articles. Later in 1969, however, the 1956 code was replaced by a new Civil Procedure
Code 1969 which contains 325 Articles.
The Iraqi Judicial System consists of (a) courts of first instance, (b) courts of appeal
and (c) the Court of Cassation for ultimate appeal. The Court of First Instance is of
two types; the Court of First Instance with Limited Jurisdiction which deals mainly
the value of which does not exceed 500 Iraqi dinars
d commercial cases
il
i
h
i
,
an
v
c
t
w
(equivalent to ?900 approximately), and the Court of First Instance with Unlimited
f their
ti
ve o
Jurisdiction, which can handle all civil and commercial cases irrespec
value. Courts of Appeal hear appeals against the decisions of the Courts of First
f
"
there is a Court o
Instance. In every province or as it is called "District of Appeal
Sessions which consists of three judges under the Presidency of the President of the
Court of Appeal or one of his Vice-Presidents. The Court of Cassation is the highest
ber
judicial tribunal in the land. It sits in Baghdad, and consists of a President and a num
of Vice-Presidents and not less than 15 permanent judges, substitute judges an4
ires
re
a
qu
. A- ---
----
reporters as necessity
of Cassation to carry out the work of abstracting and classifying the legal principle
which are contained in its judgments.
In additioi
which exerci;
of these is tht
State in polit
Court, estab;
tries the bulk
the Shari'a cc
Saudi Ara
Historically,
Mohammed
was ruled by
present King,
(1880-1953) v
protected by i
Saudi Arab
prevails. Saud
other sources
credentials as
the Saudi Aral
was establisht
administrative
of Ministers p,
and the Coun
judicial power
the authority
the ministri
entrusted
0
be official 1
efHanbali
khhab, a I
tailing in H
fam
politic
haykh.
bali t,
tignif
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In addition to the courts mentioned above, there are other jullicial forums in Ira,l
Bich exercise excIt ;ivcjurisdiction in certain spec ilic areas. !iv far the most po%vcrfu!
of these is the Revolutionary Court, which deals with cases ting the security of the
State in political, financial, economic and other spheres. On Ili,,: other hand, a Penal
Court, established within the jurisdictional district of each (mint of First Instance.
toes the iwllc of crimes and offences. Agalil. AAith its traditional Islamic backgrotine.
tlh,e Shari'a court hears all eases related to personal status, f.uilily lave and succession.
Saudi Arabia is geographically the largest country among the Gulf States.
historically, Saudi Arabia was the centre of the Islamic Faith since the Prophet
NIoh,iuiied was horn there in 570 A.D. Following Mohammed's death. the country
was ruled by the Four Khalifs, Unmvyads, Abbasides, and the Ottoman Lmpire. The
present Kingdom of Saudi Arabia was established by King Ahdal-Ar.iz ibn Saud
Iss0-I1)53) who captured Al-Hasa from the Ottoman Empire. He vvas supported and
protected by the U.K. during 1915-27 under a "special n'can st/wu! tabula".
Saudi Arabia is one of the very few countries in the world \y here Islamic lay., really
pre\ails. Saudi Arabia adopted no formal constitution other than the Quran and the
other sources of classical Islamic law. This provided the Kingdom vv ith both religious
credentials as well as a flexible informal system of govcrnntent. Aev erthclcss. tinder
tie Saudi Arabian constitution of 1926 the King, as the Protector Ot the Faith (Imam.).
i estahlished as the ultimate source of authority in respect of all legislative.
iini~.ii,tratiye and judicial issues. Later, in 1954, the Kingdom estahli,hed a Council
at \linistcrs presided over by the King. Accordingly the King in Council. i.e. the King
and the Council of Ministers, is the ultimate source of legislative, cxecutiye and
judicial power in Saudi Arabia. Further regulations were made in 1958 to consolidate
the authority of the Council of Ministers. The Council comprises ministers heading
all the ministries. It was, however, in March, 1980. that a ('onstitutional ('oniniittee
vv;") entrusted to draft a formal Constitution.
I he official law of the land in Saudi Arabia is the Shari-ah, with particular rcferenee
to the IIanbali-Vahhab school of law. In the mid-184h century. Mohammed ibn Abd
l-1 .ihmtmh, a I-lanhali jurist. set out to purify the Islamic Faith from the innovations
prcvailuig in Hiiaz (now part of Saudi Arabia). Mohammed ihn Saved. the father of
the ruling family in Saudi Arabia. joined the \"ahhahi rigid orthouovy. This joint
religious political campaign resulted in centralisation of authority in the figure of a
Saudi .'hcnkh. King Ahd al-Aziz, the founder of Saudi Arabia. ruled in 1929 that the
moan I tanhali texts should he considered as the basis of Saudi Arabia's judicial system.
It is most "ignnicant that the modern Hanhali jurists recognise ijrihud or independent
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LLOYD'S MARITIME AND COMMERCIAL LAW
reasoning (previously unique in Imamiyah school and precluded in Sunni schools).
This enables the Islamic law to change with differing circumstances. Hence, if there is
no adequate guidance in the Hanbali school, the Saudi jurists may first refer to other
schools and secondly exercise their own ijtihad or reasoning.
The Shari-ah governs all, even the King. Shari-ah courts in Saudi Arabia have
jurisdiction in all civil, criminal, and family cases. Despite the establishment of an
appellant court and a supreme judicial body in recent years final decisions still remain,
both in law and practice, with the King whether directly or indirectly. There is now a
three-tiered judicial system providing for appeal above the ordinary Shari-ah courts.
estthe ablished administrative
to r arbitrate tribunal
a questions
any
In respect ea h Grievances) was 1955
l-mazalim (or Board of Garising out of certain specified situations.
In parallel with the judiciary, several other administrative tribunals have also
jurisdiction to dispose of specific issues. A Commission, known as the Board for the
Settlement of Commercial Companies' Disputes, composed of three specialist members,
is the competent authority in Saudi Arabia to settle disputes arising f tmre ne
application of companies' regulations and to impose the penalties prescribed
This very important Board consists of three judges and it follows a procedure of its
own and is usually very time-consuming. Of significance also is the Regulation for the
Investment of Foreign Capital, according to which a special committee is set up to
review all applications for investment by foreign nationals and companies in Saudi
Arabia. Another tribunal is the Committee for the Settlement of Labour Disputes,
set up in 1969.
According to Art. 177 (para. Second (b)) of the Royal Decree on Labour and
Workers Regulations 1969 all "disputes pertaining to labour accidents of whatever
amount" shall be subject in the first instance exclusively to the jurisdiction of the
Preliminary Committee on Labour and Settlement of Disputes Committees. The
decisions of the Preliminary Committee are subject to appeal by the Suprem
Committee. Under the terms of Art. 180 suits shall be brought before the Preliminary
Committee.
Article 128 of the Royal Decree on Labour and Workers Regulations of 1389
(corresponding to Nov. 15, 1969) states: "Every employer shall take the necessary
precautions to protect workers against the dangers and diseases resulting from the
work and the machines used and to secure work safety". Article 132 extends this duty
to non-employees by providing: "the employer shall be liable for accidents and
incidents sustained by anyone".
Saudi Arabian law does not prevent a non-government organisation or a Saudi
private corporation or natural person from agreeing to international arbitration, of
from c
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 )Is).
'e is
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from choosing a law other than Saudi law as the governing law of the contract or
submitting to a jurisdiction other than Saudi courts and tribunals. However, under
Regulations of 1963 by the Council of Ministers, government agencies may not
conclude a contract which contains a clause subjecting the agency to foreign jurisdiction
(whether foreign law or foreign courts) or international arbitration. This means that
all disputes to which the Saudi Arabian government is a party are subject to Saudi laws
and Saudi courts. In some cases it may not be easy to decide whether a party to a
contract is a "government agency" or not.
The Islamic penal code (hudud) is formally, if not restrictly, enforced in Saudi
Arabia. The Saudi Arabians, as well as Muslims in other parts of the world, defend
this practice as essential to maintaining an Islamic society and a low crime rate. It is
also very significant that the Islamic criminal code is enforceable against non-Muslim >
aliens much to the surprise of Western (mostly American and British) workers in
Saudi Arabia, who find themselves subject to flogging for selling alcohol to Muslims.
Even members of the Royal family are not spared from the harsh traditional punish-
ment. In 1978, for instance, a woman of the Royal blood was beheaded for committing
adultery.
Whereas the traditional spheres of law (e.g. personal status such as marriage,
divorce, legitimacy, etc., as well as criminal law) are governed by Shari-ah, the new
aspects of law (such as corporation law, tax, oil and gas, and immigration) are subject
to the provisions contained in Royal decrees and delegated orders, codes, and by-laws.
The formal procedure for legislation, or regulation as it is called, can be outlined as
follows: When there is a need for regulating on a particular field, the issue is identified
by a committee of experts in the Council of Ministers who are entrusted to prepare the
text of an appropriate draft regulation. The draft regulation is then submitted to the
Council of Ministers for consideration. If the Council approves the proposed
regulation, it then submits the draft regulation to the King upon whose approval a
Royal Decree containing the approved regulation will be issued and published in
Um al-Qura, the Official Gazette. To date, the government has promulgated the
Regulation on Commerce (1954), the Regulation for Nationality (1954), the Forgery
Law (1961), the Bribery Law (1962), the Mining Code (1963), the Labour and Workmen
Law (1969), the Social Insurance Law (1970), and the Civil Service Law (1971) among
others. Nevertheless, jurists usually invoke a convenient legal fiction to avoid any
appearance of encroaching upon Islamic law.
In Islam the lawgiver is God. Hence, the law in Saudi Arabia, unlike all other Arab
States, is not called qanun (legislation, enactment, or law) but similar to the Ottoman
era is labelled as nazam (rule or regulation). The purpose of the existing legislation is
not to detract from the traditions but to supplement them.
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I
The basis for the legal development of the Kingdom can be traced to legal reforms
in 1927, 1931, 1936 and 1952. Furthermore, the late King Faysal established a Judicial
Council which was entrusted to reconcile the conflict between the present-day socio-
economic requirements and the Islamic traditions. Notwithstanding the Islamic
traditions, at present the Ministry of Justice is in process of developing a legal system
comparable to those prevalent in the other parts of the world. The Commercial Code
of 1931 was borrowed from the Egyptian Commercial Code (in turn based on the
Ottoman Code, imported from France). The Companies Law of 1965 envisages eight
different forms of business entities, most of which enjoy the corporate personality
and limited liability aspects.
follow the
Imam Ja'l
Courts apl
are Shi'as.
two Sunni
population
difference
support of
Bahrain was the headquarters for the British Political Resident covering the whole
Gulf and a base for the Royal Navy, Royal Air Force and British troops. As a result,
Bahrain has been influenced by the English legal system more than any other Arab
State. (Jordan was also influenced by English legal heritage, but to a lesser degree.)
Overwhelmed by the superior British naval power, the Arab Sheikhs signed in 1820
a General Treaty with the U.K. for the cessation of plunder and piracy within their
territories. This resulted in their becoming British Protectorates. In particular, Isa bin
Ali Al-Khalifah, the Sheikh of Bahrain, signed a treaty with the U.K. binding himself
and his successors to abstain from entering into negotiations with the outside world
without British consent. The British Foreign Jurisdiction Act 1890 extended British
jurisdiction to countries outside the U.K. Thence the British jurisdiction was enforced
in Bahrain for some 150 years.
In 1960, in Abdul Rahman Baker v. Robert Edmund Alford and another, the Judicial
Committee of the Privy Council considered the meaning of s. 4 of the Foreign
Jurisdiction Act 1890. The Committee accepted that the Colonial Prisoners Removal
Act 1869 (italics added) should extend to Bahrain although it had never been conceived
as a "colony". This decision virtually assimilated Bahrain to the status of colony.
From the mid-1960s onwards, the British gradually handed over the jurisdiction to
Bahraini courts and tribunals until they withdrew completely in 1971. The Government
of Bahrain, prior to 1971, adopted certain English laws by translation of the applicable
British Indian texts from English into Arabic (such as the Penal Code 1860, the
Criminal Procedure Code 1861, and the Contract Act 1872). After 1971, the State of
Bahrain set up a Legislative Committee, under Cambridge-educated Husain al-
Baharna, to develop an "independent" legal system.
The status of Islamic law in Bahrain merits special consideration. At least half of the
population of Bahrain are Shi'as. The Ruling Family of Bahrain are Sunni. Shi'as
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,decision to
tisfact;
Bab
ibBrlti;
*far, folic
Itar' has
ish 1egi
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'area:
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increasing)
divorce, will
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4- Qatar's pry
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exertion of e'
eb-operation
3.
In Jul
, 19
y
replaced by a
United Natio,
unanimously
In Kuwait,
Council of M
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ms
ial
io-
nic
>de
the
ht
ity
follow the Ja farilImamiyyah school of law which was originated by the teachings of
imam Ja'far al-Sadeq (the sixth Imam of the Twelvers Sect). The Bahraini High
Courts apply the Ja'fari version of the Islamic law when both parties to a civil case
are Shi'as. However, the judges are, almost exclusively, Sunni, and generally apply the
two Sunni schools of Maliki and Shafi'i. This has created tension among the Shi'a
population. Particularly after the Islamic Revolution in Iran (1979), the sectarian
difference was highlighted and there were several demonstrations in Bahrain in
support of Iran and against Bahrain's Ruling Class. The Government of Bahrain's
decision to expel a special envoy of Ayatollah R. Khomeini in 1979 caused further
dissatisfaction among the Shi'as. Since the National Assembly was dissolved in
August, 1975, the Emir rules by decree. This has also been a source of dissatisfaction
among Bahrainis at large and the Shi'as community in particular.
3.5. Qatar
The British extra-territorial jurisdiction was enforced in Qatar until 1971. Since then,
Qatar, following the example of Kuwait, has been reorganising her judicial system.
Qatar has enacted a large body of legislation, introducing new codes. Despite all
English legal traditions, the Qatari legal system is based on the European system in
both style and content. By virtue of codification, all commercial transactions, as
well as areas of public law, are governed by various statutes and decrees.
A dual-court system exists for civil and Shari-ah jurisdiction in Qatar. Whereas the
Civil Courts' jurisdiction prevails in all areas of Private law, the scope of the Shari-ah
is increasingly becoming confined to traditional and personal matters such as marriage,
divorce, will and succession. Since 1960 the Shari-ah Courts' jurisdiction has become
restricted to personal status. The law applicable in the Shari-ah Courts in Qatar is
dominated by the Hanbali school.
Qatar's provisional constitution declares that foreign policy will aim at strengthening
ties of friendship with all Islamic States and peoples. Shaikh Khalifa bin Hamad
al-Thani, the ruler of Qatar, expressed his special concern in February, 1972, for the
exertion of every possible effort towards the maintenance of best neighbourhood and
co-operation within the Gulf region.
ole
ilt,
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320
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3.6. Kuwait
In July, 1961, the 1896 Treaty of Protection between Kuwait and the U.K. was
replaced by a Treaty of Friendship. In December, 1961, Kuwait applied to join the
United Nations but this was vetoed by the USSR. Finally, the UN General Assembly
unanimously admitted Kuwait on May 14, 1963.
In Kuwait, the British jurisdiction came to an end by Kuwait Repealing Order in
Council of May 26, 1961. The State of Kuwait has since developed a national legal
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system comparable to that of other "sunni" Arab States (such as Egypt Jordan,
Saudi Arabia, Syria and Iraq). The dominant school of law in Kuwait is the Maliki.
Despite a sizeable Shi'a community, the Kuwait courts generally use the Maliki
compendiums in the absence of "statutory" law. In particular, Kuwait imported
many (French-styled) Egyptian legal codes (such as Egyptian Civil Code 1949), with
minor modification. These alterations were made to bring the contents up to date in
areas of commerce, banking, industry and insurance, where the Egyptian laws fell
behind the European legislation. The Egyptian Civil Code had been drafted jointly by
an Arab jurist (A. R. al-Sunhuri) and a French lawyer (E. Lambert). Therefore, the
influence of the French legal system is obvious in Kuwait.
The Omani legal system is based on the Shari-ah law on the one hand and the State
law of the country on the other. The traditional school of Shari-ah administered in
Oman is Ibadi (or Abadi) which is also followed in M'zab'in Djerba on the eastern
coast of Africa and in Zanzibar. Ibadi is the prevailing school of law derived from the
views held by Khaverij (or Kharisites) who fought against Ali the Fourth Khalif.
When in 657 A.D. Ali wiped out Iraq from the Khaverij, their adherents moved away
to the remotest regions of the Islamic State. According to tradition, the main
protagonist of Khavarij who arrived in Oman was Abdalla ibn Ibad who preached
his faith in Oman and his adherents established a hold in the mountains of Oman. The
Ibadi movement approved of the deposing and killing of Uthman the Third Khalif
and accepted the will of the community to choose its leader, thus disapproving of Ali
and his follower's claim to any form of dynastic rule by succession from the Prophet.
Apart from Oman, Ibadies are scattered in certain areas in North Africa. In Taleqan,
in Northern Iran, there are families called Ibadi. The Persians in Northern Iran
(including Taleqan, Mazanderan, and Ghilan) resisted the Muslim invasion for a
century or so. Thus, there is a possibility that some of the Khavarij might have
influenced parts of Iran. However, in the absence of any evidence, this is only a
speculation. The majority of the Iranians, including the peoples of Taleqan, are now
Shi'a. There is also a Shi'a minority in Oman who are allowed to administer their own
judicial school.
The Ibadi school adheres to a literal interpretation of the Shari-ah. This school of
Shari-ah is administered in Oman by qadhis (Islamic judges) who are usually assigned
to the wali (governor) of each province. They would hear all disputes civil or commercial
as well as theoretical (and in practice only when the issue has no political significance)
conducting criminal trial under Islamic law for all Muslims. The non-Muslims were
subject to the British foreign jurisdiction. The British jurisdiction, however, ceased in
Oman abruptly in 1967.
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upreme G
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Comlthred with other Gulf States, Oman was late in developing its legal*tructure
because until 1970 the former ruler kept his territory in absolute isolation of the modern
world. Some abortive attempts were made in the first half of the 20th century to
modernise the Omani legal system by introducing civil and commercial courts. The
Commercial Court (set up in 1920) disappeared almost immediately and the Civil
Court (set up at the same time) lasted until 1939, but was then abandoned when the
Chief Justice was appointed Governor of Muttrah. Since 1970, when Sulta-Qabus
came to power, Oman has adopted certain codes of law which provide internationally
acceptable legal frameworks. Reference can be made to the Income Tax Decree 1971,
the Foreign Business and Investment Law 1977, the Commercial Register Law 1974,
the Commercial Companies Law 1974, and the Commercial Agencies Law 1977.
However, there is not up to now an independent judiciary to enforce these laws. Only
recently Oman established the Shari-ah courts. The Shari-ah courts were neither
qualified nor willing to enforce the State law because of their own adherence to
Quranic law.
3.8. The United Arab Emirates
The Emirates of Abu Dhabi, Ajman, Dubai, Fumairah, Ras al-Khaymah, Sharjah,
and Umm al-Qaiwain established the Federal State of the United Arab Emirates
(UAE) in 1971. The Provisional Constitution of 1971 carefully preserved the autonomy
of each Emirate. The Constitution, however, provided the following Federal bodies:
a supreme Council of Rulers in which Abu Dhabi and Dubai had the right of veto;
a Federal Government; a Federal National Council with advisory powers; and a
Supreme Federal Court.
The long-standing British policy in the Gulf fossilised the status of different
Protected Arab States as separate, permanent entities. Against such a background, the
Rulers of the Seven Emirates maintained the identity of their individual States within
the federation of the UAE. Thus, each of these States exercises internal autonomy
under its hereditary Ruler. This is why there is not a unified legal system operative in
the UAE.
A glance at the recent UAE laws and legislation shows two distinct branches of
municipal law: Federal laws and State laws. Although Civil Courts were projected to
be established on a Federal basis throughout the UAE, the administration of justice
still remains subject to the laws of individual Emirates.
Article 7 of the Constitution of 1971 provides that the Shari-ah/Islamic law is the
principal source of law in the UAE. The Islamic courts, however, are relatively
secularised in the UAE compared with the courts in Saudi Arabia.
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