In a hot crowded courtroom in the Saudi Arabian oil town of Abqaiq, the defendant and the plaintiff stood before the Qsidhi—the judge—waiting for the trial to continue. The defendant, an American employe of the Arabian American Oil Company (Aramco), was plainly nervous. He was on trial in a foreign court, whose laws and procedures were a total mystery to him, and he was accused of a serious matter: assaulting and slandering the plaintiff, a Saudi Arab co-worker. He had denied the charge but if found guilty he might be jailed or he might be deported, thus losing a job he had held for years.
"To prove your claim under our law," the Qadhi was saying to the plaintiff, "you are required to present two witnesses to testify to the truth of your complaint. You have presented one witness. Do you have a second?"
The plaintiff said he did not. "Then you have one right left to you," the Qadhi said. "You may demand the oath."
"I demand the oath," said the plaintiff.
The defendant turned to the Aramco lawyer representing him and whispered: "What is the oath?"
The lawyer hesitated, wondering if, in just few seconds, he could adequately explain this ancient, solemn cornerstone of Shari'ah law. "It's like this," he said finally. "To a Muslim, lying under oath is one of the most serious sins that a man can commit. So he is asking you to swear that you are innocent. If you do not take the oath you will be immediately found guilty. But if you do, it must be the truth."
The defendant quickly decided. "I'll take the oath," he said,
A moment later, in English, he repeated after the Qadhi the oath prescribed for Christians:
"I (defendant's name) in the Name of God Who gave Jesus, Son of Mary, the Holy Bible and with His Will made Him cure the sick, the leper, and the deaf, swear that I did not kick (plaintiff's name) in the right leg nor did I call him the son of a bastard."
As soon as he finished the oath the American was adjudged not guilty and released—freed by an unusual aspect of an unusual system of Jaw, the noble Shari'ah, a code of law that has guided Muslim courts for 1,300 years.
The Shari'ah, which means "the clear path to be followed," is the all-encompassing law of Islam. In Saudi Arabia which, with the exception of Yemen, is the only country left in the world to base its system of law on pure Shari'ah, there is also a second part to the law—regulations called the Nizam—but the Shari'ah with roots deep in divine revelation, is paramount.
There are four sources for Shari'ah law. The first of course, is the Koran, the "recitation" of God's own words by the angel Gabriel to Muhammad, the last of the prophets. The second is the Sunna, a record of the Prophet's deeds, utterances and of his unspoken approval and disapproval in given situations. The two other sources are Ijma' and Qiyas. Ijma' consists of the consensus of scholars on' particular problems whose solutions are not directly found in either the Koran or Sunna. They are solutions deduced from the Koran and validated by the tradition which says, "My people are never unanimously in error." Qiyas, whose root meaning in Arabic is "measuring" or "comparing," stands for reasoning by analogy which in effect permits the principles established by the Koran, Sunna and Ijma' to be extended and applied to problems not covered by the other sources.
To an American lawyer, such a system inevitably seemed awkward. I even questioned if it were operable. But not long after starting practice I saw a dramatic example of how the thinking of the Prophet can still inspire and effectively guide today's Qadhis. In the beginning of 1955 the American doctors in the company's hospital sought legal counsel in resolving a difficult problem: the propriety under the Shari'ah of performing surgery on the yet unborn but lifeless child of a Muslim woman. Because of the Islamic tenet that the dead body of a Muslim must not be violated in any way, Aramco doctors feared that legal liability would be incurred if the surgery were performed. On the other hand, if the operation were not performed, the mother might die. I discussed the matter with the then Chief Qadhi of the Shari'ah Court of Dhahran, where Aramco's headquarters is located. After listening to the problem and meditating a few moments, the Chief Qadhi stated he wished to tell of an incident in the life of the Prophet.
"During the time of the Prophet," the Qadhi began, "there was a man wandering in the desert. He was very ill and as it was very cold and he was lightly clad, he realized that unless he could get warm soon, he would die. The wanderer came upon the body of a Muslim, apparently the victim of robbers. The body was warmly clothed. He removed the clothes from the dead man, leaving the naked corpse fully exposed and unburied, and put them on. His life was saved.
"Later, however, the man came to a village where the Prophet was staying. Realizing that he had not shown proper respect for the dead, he sought out the Prophet and confessed. The Prophet told him that as long as what he had done was necessary to save his own life, and that as long as the person whose clothing he had stolen and whose body he had left naked and unburied was already dead, he had, in the eyes of God, committed no wrong."
Having finished the story, the Chief Qadhi said to me, "Go back and tell your American doctors that if the surgery they must perform on the unborn child is necessary to save the life of the mother," and if the unborn child is already dead, they need have no fear of violating the Shari'ah."
Life today necessarily involves many activities which did not even exist at the time of the Prophet, and with which the Shari'ah did not specifically concern itself. These modern exigencies are covered by the "Regulations"—the Nizam. These are statutory codes promulgated by the head of State under authority granted by the Shart'ah to do what he deems necessary for the best interests and welfare of the people and their country. They are intended to implement the general principles of the Shari'ah. This part of the law, then, is born from practical necessity. Under it fall motor vehicle regulations, airport regulations, customs regulations, company regulations, labor regulations and so on. In this way, the Shari'ah enables an Islamic State to provide the governmental guidance required for a developing industrial and technological society.
The test of all law, of course, is how it is administered in the courtroom. And it is here, in the Shari'ah courtroom, that an American lawyer begins to see that although there are enormous differences in concept and procedure there are also striking—and important—similarities. For one thing the Shari'ah law, like American law, assumes that a man is innocent until proven guilty. For another, the burden of proof falls upon the plaintiff. Also there is a sophisticated system of appeals under which the record of trials must, when required, be reviewed by a Board of Review consisting of three Qadhis and a Chairman and then by the Grand Mufti. Shari'ah Courts also assume that all men are equals. This is symbolized by a seat located just in front of the elevated desk that the Qadhi occupies. The seat has room for just two people, the plaintiff and the defendant, and they must sit there side by side while their case is being heard.
In a Shari'ah court the Qadhi is the central figure. In some instances there may be a Junior Qadhi assisting him, but there are no juries. As an American lawyer, I was at first surprised by the absolute control which the Qadhi maintains over the proceedings before him and by the large discretionary authority at his command. In marked contrast to the more neutral role that a United States trial judge plays, the Qadhi actively participates in the case. Since his role is not to arbitrate, but to actively seek the truth to procure justice, he questions both parties and all witnesses at will. He even concludes cases by convincing the parties to settle their differences by the honorable method of sulh, or compromise, usually on the basis he recommends, when he is in doubt as to which party is in the right.
Because of this active approach, and because of the absence of a jury, the outcome of a Shari'ah trial rarely hinges on the dramatics or the adroitness of opposing attorneys, as is so often the case in United States jury trials. In fact until we Shari'ah-trained American lawyers made our appearance there were, in Shari'ah courts, no lawyers in the Western sense, although the parties could be and often were represented by agents experienced in court work.
The usual criminal case under Shari'ah procedure has its beginnings with a complaint made to the local Police Department. (Civil actions are brought directly to the Shari'ah court.) The police obtain statements from the accused and the accuser, interrogate possible witnesses and, unless a serious crime is involved, usually place the accused under bond. That means someone must sign a written guarantee to produce the accused upon the demand of the police. If he should fail to do so, the guarantor or bondsman would suffer serious consequences—including imprisonment if the accused is found guilty. (This is a stern requirement, in contrast to the United States where the bondsman merely pays the amount of the bond. Because it applies to all persons, national and foreign, residing in Saudi Arabia, the duties of Aramco's Government Relations representatives in each district include the signing of these "personal appearance" bonds. Otherwise an employe might be unable to find someone to stand bond for him and might be imprisoned until his trial.)
Two types of actions may be brought before the Shari'ah Court—a Public Right action and a Private Right action. The former involves the right pursued by the State for violation of the public law. It is analogous to a criminal action under Anglo-American jurisprudence. Although there is no District Attorney in the American sense, the government is represented in Court by a member of the police force who is known as the Public Prosecutor. The Private Right action, similar to an American civil action, enables an individual to seek redress in court. Many cases naturally may involve both rights, and the same trial can deal with both. An example is the motor vehicle accident. Not only would there be the Private Right to recover losses resulting from damage to property and injury to the person, but also the government would seek under the Public Right to punish the one who caused the accident in violation of the Motor Vehicle Regulations. .
When a Qadhi has before him a case involving both rights, he will hand down a decision determining fault and will prescribe the amount of compensatory damages to be paid under the Private Right to the wronged party, and he will define the punishment to be imposed under the Public Right. However, if the case concerns a motor vehicle accident, the Qadhi will not prescribe punishment since the application of regulations, i.e. Motor Vehicle Regulations, is involved. This power rests exclusively with designated government authorities. Recommendations are made by the police who review the case file after the Qadhi has rendered his decision. They determine what regulations have been violated and the punishment prescribed therefor under them. However, the Qadhi is free to recommend clemency in any case brought before him. When the crime committed is among those for which the punishment has been specificaily defined by God (the hadd punishments designated for the crimes (1) adultery, (2) false accusation of adultery, (3) intoxication, {4) theft, arid (5) highway robbery), the Qadhi will pronounce such punishment, which will be executed by order of the Governor of the Province.
One of the major differences between Shari'ah law and Anglo-American jurisprudence concerns evidence. As I said earlier, a man is innocent until proven guilty, and the burden of proof is on the plaintiff—as in the case of the American charged with assault and slander. But the basic evidentiary requirement, usually, is that a claim must be established by the testimony of two witnesses. In some cases, the Qadhi can accept the testimony of one witness plus the plaintiff's oath. There are also cases in which the Qadhi will accept the testimony of a single witness only. Here the Qadhi is willing, in his discretion, to decide a case and impose punishment on the basis of Tumah, a "strong suspicion" that the alleged offenses have been committed.
This—in the eyes of an American lawyer—is a difficult burden, since it would be a rare person who could insure the presence of one or two other human beings at all times. Such a requirement, of course, does not exist in United States courts, where, simply put, the jury decides which side it will believe. This "two eyewitness rule" has always appeared to me as representing one of the largest differences between the Saudi Arab and the American legal systems. Still, reliance on circumstantial and other evidence is a well-known principle in Islamic jurisprudence and is applied in many cases, particularly criminal actions.
The Shari'ah has built-in safeguards against witnesses who would tend to commit perjury. First, the Qadhi must be satisfied with the integrity of the two witnesses. If he is not, character witnesses acceptable to him must testify that the direct witnesses are men of repute. In this way His Reverence can determine whether the witness is a pious Muslim and thus, whether his word can be accepted. I have seen several cases turn on this point.
Another safeguard is that each party may cross-examine the other party and his witnesses. This must be accomplished, however, by first putting the question to the Qadhi for his approval. (This, again, exemplifies the degree of control exercised over the case by the Qadhi.) In carrying out cross-examination, I have at times followed the practice, permissible upon request to the Qadhi, of having all potential witnesses for the opposing party leave the courtroom while I cross-examine another witness. This has been fruitful in producing inconsistencies among the statements of those who should not have appeared as witnesses. A third safeguard is the stipulation in the Shari'ah that if a potential witness has any interests in the case which are adverse to the person against whom he is to testify, he will be deemed a prejudicial witness and automatically dismissed. There is also a fourth, highly persuasive, safeguard. Perjury, when proven to the satisfaction of the Qadhi, is punishable by imprisonment or lashing, or both.
Another interesting device in the Shari'ah—in the absence of any evidence before the Qadhi—is the right of the plaintiff to demand the oath from the defendant. As the American involved in the case cited earlier learned, the Shari'ah specifies separate oaths for Muslims, Christians and Jews (Islamic jurisprudence gives the name of dkimmies to Christians and Jews, who are also known as "People of the Book" as followers of religions which Islam considered revealed, and thus were accorded certain rights by the Muslim authorities under whose jurisdiction they lived), but the basis is the same: a belief that no one will consciously lie under oath.
To the perhaps more cynically inclined Western mind, the oath might seem to be the weak spot in Shari'ah Law. Would a man faced with a financial judgment or perhaps prison really hesitate to lie when that lie could get him off? I wondered about it the first time I saw a defendant taking the oath after my client demanded it. Later I discussed it with the Qadhi. "Neither you nor I know whether the defendant committed the offense or not," the Qadhi said. "But he knows and if he lied under oath he will have it on his conscience for the rest of his life."
"Furthermore," he added, "God knows and so He will take care of the matter after the defendant leaves this earthly life."
It was a moving testimony to the Qadhi's faith and one I was to remember later, when I was handling a serious case that eventually was to hinge on this very question.
One night, while patrolling the housing area in Dhahran where many of the company's Christian house-boys lived, a policeman allegedly entered one of the rooms occupied by three Christian Goanese bouseboys and accused them of gambling. The frightened house-boys fled, and the policeman apparently struck one of them on the head with a sharp-pointed knob at the end of a walking stick, knocking him unconscious and leaving him partially paralyzed. The victim's two companions, the only witnesses to the crime, were terrified to speak out against a policeman and refused to either identify the assailant or testify in court. But we were able to learn the identity of the policeman through other means, and brought a charge against him in the Dhahran Sahri'ah Court—in itself a somewhat unusual procedure—and the Qadhi scheduled it for trial.
At the trial, the defendant alleged that the injury resulted from the plaintiff striking his head on the round doorknob of the door of the room as he attempted to flee. To counter this, I asked the then Chief Qadhi to allow me to bring into the court the X-ray plates taken of the victim's skull and the appropriate equipment to display them, along with a qualified Arabic-speaking doctor to explain the plates to His Reverence. This, I pleaded, would establish that the type of wound inflicted in the plaintiff's head could not have resulted from the spherical surface of a doorknob. It was an unusual request since I was quite sure that such scientific evidence was as yet unknown to the Qadhi.
The Qadhi, however, indicated his willingness to at least look at the X-ray plates. After studying the plates and listening carefully to the Arab doctor's explanation, the Chief Qadhi ruled that the wedge-shaped wound in the plaintiff's skull could not have been caused by the round surface of a doorknob, but was probably inflicted by the pointed end of the stick admittedly carried by the defendant. (The testimony of handwriting experts and of fingerprint experts is now also accepted in the Shari'ah Courts in Saudi Arabia.)
Refuting the defendant's allegation about the cause of injury, however, did not end the trial. We still had to establish our claim and since the other houseboys still refused to testify, the only right left to us was to demand the oath from the defendant, which we did.
The policeman, enraged, came to his feet. "They are Christians!" he shouted angrily. "They do not have the right to demand the oath from a Muslim!"
His Reverence, the Qadhi, held up a calming hand and quietly corrected him. "This is not so. The plaintiff may demand the oath and does demand the oath and you must decide if you will take it."
It was not an enviable position for the policeman. If he did not take the oath he would be found guilty and might be sentenced to six months in prison. He might even be lashed. But the only alternative was equally repugnant: to lie under the oath. The Qadhi, realizing this, lectured the policeman on the seriousness of the dilemma and adjourned the trial to give him time to think it through. The following day the Qadhi, in the presence of two witnesses from the Governor's office, asked the defendant to take the oath. The defendant refused. Again the Qadhi asked him. Again, no. And a third time. Still no. He could not violate his beliefs. He could not lie. Thereupon the Qadhi solemnly judged the policeman guilty of assault against the houseboy.
In the meantime, however, he also had to settle the civil aspects of the case. A committee of medical experts was formed by the Qadhi, to appraise the extent of the injury suffered by the plaintiff. Based on their appraisal, the diyah (blood money) payable to the plaintiff by the defendant was set at 300 Saudi Rivals ($67.00). This is one-half of what a Muslim would have gotten and in any case not a great amount compared to awards in tort actions in the United States. But it is a substantial award in Saudi Arabia and quite in keeping with the Shari'ah's prescription that the diyah payable for the human life is 100 camels or the equivalent value thereof. Today this value is set in Saudi Arabia at 16,000 Saudi Riyals ($3,555) for unintentional homicide, and 18,000 Saudi Riyals ($4,000) for intentional homicide.
With the amount of compensation settled, the Governor of the Eastern Province then ordered the policeman's sentence under the Public Right to be carried out: six month's imprisonment and 80 lashes.
Thus, a humble, uneducated servant, both foreign and Christian, was not only able to challenge a Muslim policeman in court, but was able to win his case without any direct evidence to prove the defendant's guilt-thanks to the wisdom of an enlightened Qadhi and the courage of a policeman who even to avoid severe punishment refused to compromise his beliefs by lying under oath.
Before leaving the subject of oath-taking, an important exception already briefly noted should be explained. Normally it is the defendant who takes the oath and only upon demand from the plaintiff. The exception concerns purely financial claims where the plaintiff may take the oath himself is he has only one witness to offer. His oath is accepted in substitution for the second witness.
The question is often asked whether the Shari'ah and the Regulations apply equally to foreigners and to Saudi Arab nationals. The Shari'ah, of course, applies fully to Muslims whether nationals or foreigners, but not to non-Muslims. Obviously, a nonadherent to the Muslim faith is not called upon to observe purely religious duties, such as the so-called "Five Pillars of Islam"; (1) recitation of the profession of faith, i.e. "There is no God but God and Muhammad is the Messenger of God;" (2) praying five times a day; (3) the giving of alms; (4) fasting during Ramadan; and (5) performing the pilgrimage to Mecca at least once during his lifetime. The Regulations, on the other hand, as a general rule apply equally and fully to everyone, unless of course stated otherwise in their contents.
This was put to the test several years ago when four houseboys, all Indian, all Christian, were charged with gambling. They, had been in the habit of gathering on the porch in front of the door of one of their rooms and playing cards nearly every evening, for some time, but one evening they were arrested and incarcerated. The police charged that gambling was forbidden in the Kingdom on the basis of Sura V, Verse 92 of the Koran, which reads:
"O believers! surely wine and games of chance, and statutes, and the divining arrows, are an abominanation of Satan's work! Avoid them, that ye may prosper."
At the trial I argued that since they were not "believers," the prohibition did not apply. "Even assuming the defendants had been gambling," I told the court, "this Koranic prohibition does not apply to them in view of the fact that they are Christians whose own religion does not prohibit them from engaging in gambling for money."
"This is true," the Qadhi answered. "However, the Shari'ah prohibits even Christians from engaging in the prohibited activity in public, or exposing it to Muslims in any way."
Conceding this, I contended that this should not apply to the facts of the case at hand. First, I said, there was no exposure to other Muslims since only Christians lived in the area. Second, since the defendants were sitting on the private porch of their dwelling directly in front of the door of their room, they could not be deemed to be "in public." They were still within the privacy of their home and not in a public place.
After having the police confirm the accuracy of my description of the location of the incident, the Qadhi expressed agreement with my contention. He ruled that the defendants, being Christians, had not violated the Shari'ah. But then the Qadhi went on to advise the police that if a Regulation existed prohibiting gambling by anyone in the Kingdom, this was another matter. In short, he said, the Shari'ah may not apply to non-Muslims, under certain conditions, but the Regulations apply to everyone equally. The police were unable to produce any such Regulation and the defendants were released.
No discussion of Shari'ah Court practice in Saudi Arabia is complete without mention of the peculiar court action called the "personal abuse" case. In the United States, this type of case would rarely be considered important enough to merit a formal complaint, and if raised would be deemed de minimus by a court. But in Saudi Arabia cases of "personal abuse" are treated as serious matters by the Shari'ah Court, and a decision in the plaintiff's favor could result, and has, in deportation if the defendant happened to be a foreigner. Personal abuse cases often stem from the fierce pride of the Saudi Arab, a completely understandable pride in men who for centuries have by sheer courage and determination survived in one of the most hostile deserts in the world. This pride is a precious thing and Saudis will go to extreme length to protect it.
The "abuse" may be physical or verbal. The first of course involves physical contact but only if it is not sufficient to inflict real injury. That would be assault. Some years ago, for example, an American, jokingly but unwisely, pulled the beard of one of his Saudi employes. The Saudi resented the action and brought the American to trial. The American was found guilty and was ordered deported.
During its construction and expansion period after World War II, Aramco employed some 8,000 foreigners—Americans, Italians, Lebanese, Palestinians, Indians, Pakistanis, Goanese—and more than 16,000 Saudi Arabs. Such diverse groups of people naturally were unfamiliar with each other's customs. Misunderstandings were common and many wound up as complaints in court. One Saudi, for example, claimed personal abuse on the grounds that his American supervisor had cursed him and his religion by shouting: "God damn it, Abdulla, you're doing this wrong!" I suggested to the Qadhi that since the neuter "it" was used, no one was insulted. His Reverence agreed and the American got off. If the phrase had been "God damn you"—the American would have been in trouble.
The situation was not helped by the fact that explicit, hard hitting profanity was a quite ordinary part of the daily vocabulary employed by most of the rugged, hard-working American oil field hands. In defending personal abuse cases, American lawyers were constantly frustrated by the difficulty in explaining how casually Americans exchange seemingly horrendous, apparently unforgivable insults. How does one explain in a Shari'ah Court in Saudi Arabia what an oil-rigger really meant when he hollers "b---t?" How does one explain the precise implication of those various, well-known "four letter words?" We turned often to the publication, "A Dictionary of Slang and Unconventional English," for help and even produced it in court several times as evidence, for example, to establish that "b----t," as defined therein, meant simply "nonsense; empty talk; humbugging."
Fortunately, the patient Qadhis usually understood and accepted our embarrassed explanations that no insult was intended to either the Saudi plaintiff, his religion or his country. Later, as time went on, American oil men learned to temper the use of their favorite expressions when instructing Saudi workers, and the workers gradually came to see that the profanity and blasphemy in most instances was meaningless. Since then personal abuse cases have almost vanished.
But if the presence of this large contingent of multinational workers created problems it was also one of the main reasons why Americans began to study Shari'ah law in the first place. As the numbers of foreign workers began to multiply Aramco came to realize the immense legal difficulties an American corporation might face in running a huge oil operation under a system of law that was almost unique in the world. Thus they began to recruit and train attorneys not only in Shari'ah law, as such, but in the entire meaning of Islam and, of course, in Arabic. Gradually, starting in the 1940's, a small corps of specialists developed. Today Aramco employs, in addition to myself, two men who spent three years at Oxford, two who followed a similar program at the University of London and one who studied at Columbia University. The company also retains a Saudi Arab attorney who studied in Jordan and England and who has opened a law office in the local community—the first step, possibly, in the development of a "bar" in the Eastern province.
For men who had already spent long years in college and law school, it was not easy to add two to three more years of demanding study. On the other hand there were compensations. One was mastering what was, for the Americans, an unusual and challenging subject. Another was the privilege of working with knowledgeable and understanding Qadhis such as Shaikh Uthman ibn Ibrahim al-Huqail, the Chief Qadhi of the Eastern Province. Shaikh Uthman is the man who is in charge of all the other courts in the Province—about 20—with the exception of one in Hofuf. He is also the judge who, as Qadhi of the Shari'ah Court of Dhahran, hears most of the cases involving Aramco or its employes. For the company attorneys Shaikh Uthman was a constant source of help and instruction in the intricacies of the Shari'ah. And lastly there was the compensation of pursuing what is, after all, the main purpose of law whether it emerges from the pronouncements of the Supreme Court or the teachings of an ancient prophet: justice and order for all.
George M. Baroody, Senior Counsel in Aramco's haw Department, attended Cornell University, earned a law degree from Cornell Law School and a Master's Degree from the School of Oriental Studies at the American University of Cairo where he translated the book, Crime and Punishment Under Islamic Law. He has practiced law in the Shari'ah courts of Saudi Arabia for 14 years.
