SAUDI ARABIA AND WOMEN’S RIGHTS
The Qur’an and the Sunnah of His Messenger, Muhammad, are the basic texts from which all laws and regulations in force in the Kingdom of Saudi Arabia are derived. In the Qur’an and Sunnah, many stipulations prohibit various forms of discrimination, including discrimination on the basis of race, colour, or gender (in various circumstances).
Moreover, they encompass many rulings regarding gender-based discrimination, with rulings that ‘give women the same rights and duties on the basis of equality’.[1301]The Basic Law of Governance addresses the protection of human rights generally. Article 26 stipulates: ‘The State shall protect human rights in accordance with the Islamic Shari’ah.’ This Article prohibits discrimination against women in the manner that such that there is no conflict with the Qur’an and Sunnah.[1302] Again, Article 8 of the Basic Law provides for ‘government... based on the premise of justice, consultation, and equality in accordance with the Islamic Shari’ah’.[1303] The intersection of faith and justice is clear, and the rights of the people and the responsibilities of both the people and State are also given expression in the Basic Law of Governance.
The Basic Law of Governance provides for the principle of equality before the law. Article 47 stipulates: ‘The right of litigation shall be guaranteed equally for both citizens and residents in the Kingdom. The law shall set forth the procedures required thereof.’ Furthermore, equal access to justice is encouraged by the Basic Law of Governance which guarantees that litigation before all courts.[1304] The Basic Law of Governance includes a body of rights it considers fundamental to Saudi society, such as unity,[1305] the centrality of Islam,[1306] and the sanctity of private property.[1307] It contains provisions pertaining to the other fundamentals of Saudi society, such as the health[1308] and welfare of the family and all its members,[1309] and education.[1310] Further, it addresses the freedom and inviolability of private property;[1311] public confiscation of property cannot occur without ‘fair compensation’ and only when in the interests of the State.[1312] Public confiscation of money is prohibited and the penalty of private confiscation is to be imposed only by a legal order,[1313] though compensation can be sought.[1314] The imposition of taxes and fees is forbidden unless necessary and on a reasonable basis.[1315]
The Basic Law of Governance gives security in addition to freedom of communication to all people residing within the Kingdom, whether citizens or residents (within the bounds of the need for national security or unity, politeness (not slanderous) and in so far as is supported by Shari’ah).[1316] Saudi Arabian citizens and their families enjoy full rights in cases of emergency, sickness, disability, or aging.[1317] Furthermore, the Basic Law of Governance supports the social security system and encourages both institutions and individuals to take part in charitable work.[1318] The authorities in the Kingdom of Saudi Arabia have made great efforts in terms of securing social and economic development for the community in general and for women in particular.
This has been done with the conscious involvement of women, as they are seen to play a vital role in shaping future generations.[1319] Socially, several governmental organisations have been established by the State that encourage and support charitable and civic organisations to be committed to social development and the implementation of State policy in the area of social solidarity.[1320] This attention has resulted in considerable and continuing efforts in regard to women's welfare. The State plays a vital role in affirming women's key role in the welfare of the family, and in protecting women against poverty, particularly in the event of the death, incapacity or imprisonment of the husband, or in the event of divorce, and has done so by promulgating laws in this regard.[1321] In terms of efforts to prevent the dissolution of families, the State ‘has created reconciliation sections in the country’s courts within the framework of its desire to spread mutual support, tolerance, and cooperation among people in furtherance of the common good’.[1322]The Kingdom of Saudi Arabia ratified CEDAW in 2000 using the following wording:[1323]
1. The Kingdom’s accession to the Convention on the Elimination of all Forms of Discrimination Against Women adopted by United Nations General Assembly resolution 34/180 (18 December 1979), in the attached wording, is approved with the reservation that, in case of contradiction between any term of the Convention and the norms of Islamic Law, the Kingdom is not under the obligation to observe the contradictory terms of the Convention.
2. The Kingdom does not consider itself bound by Article 9, paragraph 2 and Article 29, paragraph 1 of this Convention.
That the general content of the Convention is consistent with the country’s approach to conserving women’s rights led to its acknowledgement by the Kingdom. This shows the Kingdom’s desire to abide by the provisions of the Convention and indicates its determination to bear its responsibility to protect the human rights of women in the country while taking into consideration the reservations that it has expressed.
These reservations are consistent with Articles 19-23 of the Vienna Convention on the Law of Treaties[1324] concerning reservations, especially as they accord with the subject of the Convention and are not incompatible with its purpose.It is difficult to discuss the philosophy of local and international law and its application within Saudi Arabia in any way separately from Shari’ah. In the Islamic State, law-making stems from Shari’ah. This is self-evident in the Kingdom, where Article 1 of the Basic Law of Governance stipulates:
The Kingdom of Saudi Arabia is a fully sovereign Arab Islamic State. Its religion shall be Islam and its constitution shall be the Qur’an and the Sunnah of His Messenger...
Therefore, the legislation, regulation and policy adopted within the country cannot breach the framework of Shari’ah. As a result, the country’s laws cannot be expected to be altered or developed by the legislative authority in such a way as ‘may lead to the creation of new principles, inconsistent with the bases of the Shari’ah, in letter and spirit’.[1325] Indeed, there is ‘no distinction between church and State in the theory of Islamic Law’,[1326] just as there is no distinction in life. ‘People’ and ‘congregation’ are essentially a single entity; with both ruler and ruled subject to the provisions of Shari’ah. The role of the courts,[1327] and the position of the monarch and the allegiance owed him, are also supported by reference to the Qur’an, as is the role of government.[1328] There is no separation, therefore, between Shari’ah and the State with its various laws, nor can there be (according to the traditional understandings adopted in the Kingdom).[1329] Therefore, the legislative authority ‘is obliged to abide by the totality of the sources of Islamic Shari’ah’,[1330] a point that is made clear in the Basic Law of Governance:
The regulatory authority shall have the jurisdiction of formulating laws and rules conducive to the realization of the well-being or warding off harm to State affairs in accordance with the principles of the Islamic Shari’ah...[1331] This is the basis of the Kingdom’s reservation to the provisions of the Convention, namely the Convention will be adopted in so far as it does not conflict with the principles of Shari’ah.
If there is discrimination and injustice against woman, then the Kingdom’s laws that are taken from the Holy Qur’an and the Sunnah of Muhammad must be reformed to tackle women’s issues and promote equality. Thus, the relevant bodies of State are obliged to apply the principles of equality in exercising their legal competence. They must not discriminate concerning the human rights within the framework stipulated in Article 26 (human rights in accordance with Shari’ah) and accorded under Article 27 (social security provision), Article 28 (employment opportunity to be provided by the State),[1332] 30 (education and literacy provision), Article 31 (healthcare), Article 35 (treatment of nationality/citizenship other than as defined by Statute), Article 36 (freedom from arrest other than as provided by law), Article 37 (freedom from unlawful search of home, privacy provision), and Article 38 (legal penalties as provided by law) of the Basic Law of Governance.[1333] There are a number of women’s rights, elsewhere taken for granted, that are omitted.[1334] The right of women to vote in municipal elections, for example, is still being considered, but then it must be understood that the first ever such elections were held in 2005 in the Kingdom of Saudi Arabia, where the King is a real and powerful (rather than merely titular) head of State.[1335]
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