On May 26 2011, Sabq News reported a statement made by the Deputy of the Ministry of Interior, Prince Ahmed bin Abdul Aziz, in response to a question on the legality of women driving in Saudi Arabia. Prince Ahmed stated that, “any suggestions can be received from either side of the issue, whether they are true or false.. But regarding women driving in Saudi Arabia, a statement has already been issued in year 1411 (1991) that bans, or rather, does not permit, women to drive a car. And this means to us, as the Ministry of Interior, to still be valid. Our duty is to apply the law, whether the act itself is right or wrong is not our job to decide. All we are responsible for is upholding the law.
The statement from year 1411 (1991) that Prince Ahmed bin Abdul Aziz referred to is as follows:
The Ministry of Interior declares to all citizens and residents that, based on the Fatwa issued 20/4/1411 from Sheikh Abdul Aziz bin Baz the head of Scholarly Research and Ifta and Sheikh Abdul Raziq Afifi the Deputy Chairman of the Committee for Scholarly Research and Ifta, and a member of the Senior Scholars, Sheikh Saleh bin Mohammed bin Luhaidan, President of the Supreme Judicial Council and member of the Permanent Panel of Senior Scholars. This fatwa states that it is inadmissible for women to drive cars and it is necessary to punish those who do drive cars with an appropriate punishment in order to restrain signs of evil, as explained in legitimate religious evidence that requires banning that which might expose women to temptation and given that women driving cars is contrary to the True Islamic behavior enjoyed by the Saudi citizen jealous for his female relatives. The Ministry of Interior clarifies for the general public and confirms that all women are strictly prohibited from driving in the Kingdom of Saudi Arabia and violations of this prohibition will receive deterrent punishment.
The following is a translation of what prominent Saudi lawyer, Abdul Rahman Allahem, who was awarded the International Human Rights Lawyer Award from the American Bas Association in 2008, as well as the 2008 Human Rights Defender Award from Human Rights Watch, wrote on May 27 2011 in response to Prince Ahmed bin Abdul Aziz’s statement regarding Women2Drive. This post serves as a solid legal argument for the Women2Drive objectives, as well as clarifies misconceptions about the legal status of women driving in Saudi Arabia.
The Legal Response to Prince Ahmed bin Abdul Aziz’s Statement Regarding Women Driving
When one holds an opinion, there is almost always another who is in opposition to this opinion. Often times, tactics such as using quotes and statements from officials to contradict that opinion which you hold. In this case, some have attempted using a statement issued by Prince Ahmed bin Abdul Aziz in order to proclaim women driving in Saudi Arabia to be banned.
Today’s post will be to address this very issue. It will serve as a response to the statement released by Prince Ahmed bin Abdul Aziz in which he states that, “the decision to prohibit women from driving is still being upheld by the ministry, as stated in the statement released in 1411 hijri (1991) which bans women from driving”. He also added, “As the Ministry of Interior, this statement issued in 1411 that prohibits women from driving is still valid and our duty is to apply the law, not to search for whether the act itself is right or wrong. This is not our job”.
I have discussed in a previous post the legal implications of statements from the Ministry of Interior regarding the ban on women driving issued in 1991. I clarified how the statement was abrogated after the issuance of the Basic System of Governance of Saudi Arabia in year 1992. The statement is also overridden by the Committee on the Elimination of Discrimination Against Women (CEDAW) agreement that Saudi Arabia signed in 2008. However, after Prince Ahmed bin Abdul Aziz’s reference to this statement, I have received 46 clarification requests through Twitter, Facebook, and email regarding it. And so, I find it necessary that the statement be examined from a legal point of view. Although I don’t normally like to write on the legal technicalities and details, in this current climate I find it crucial to do so. The aim is to establish the legal principle, the “Rule of Law”, which is the broader concept underlying simply the “practice” of women driving cars. Ultimately, this is an argument for our country’s institutions and its legal fabric.
The discussion will be on the following points:
First: It must be clear that Prince Ahmed bin Abdul Aziz’s statement was nothing more than personal “opinion” or “viewpoint” of the ministry of interior, but it does not hold any legal weight, nor does it end the debate on the legality of women driving in Saudi Arabia; for there are those who would claim it is abrogated by laws released after it, and the debate can only be concluded through legislative institutions that have the legal and constitutional authority to issue such legal statements. There have been many statements issued from executive governmental institutions that are confused to be legal proclamations, but when placed before the Administrative Judiciary, they are clarified as void. And for this reason, the Administrative Judiciary was formed in order to oversee the legality of statements and decisions issued by governmental institutions, even if an official of these institutions claims a statement to be ‘legally’ valid. For governance is based on statements being supported by actual legal texts, as well as legal principles prevalent in the Kingdom of Saudi Arabia.
Second: “Abrogation of Laws” is a common legal principal that is, in short, “The subsequent law supersedes and cancels out the previous law”. This abrogation and termination of an old law might be direct, meaning that a law is issued that declares the previous law void. Or, the abrogation might be indirect, meaning that a law is issued that pertains to the previous law and so is understood to take the place of it, thus, ending the legal authority the previous law once had.
[Example using the Promotion of Virtue and Prevention of Vice (PVPV) Omitted from translation to maintain focus on Women2Drive]
Third: Another feature in law to note is the concept of “the generation of legal principles”, meaning, “The legal principles in the laws ought not violate principles found in laws that supersede it”. Let us take a look at the power pyramid of legislative authority in Saudi Arabia:
– Legal principles issued by Royal Order. Royal orders are legal tools that represent the individual royal will, and are typically administered through constitutional documents. These legal principles are at the top of the power pyramid, and thus there is no other legal authority that can violate them.
– Legal principles issued by Royal Decree. Royal Decrees are legal tools that represent the King, as the head of Council of Ministers, and it is based on decisions of the Council of Ministers and Shura Council. Royal Decrees used to administer all laws in Saudi Arabia, except for the constitutional laws, they are also used to ratify international agreements.
– Legal principles issued by decisions made in the Council of Ministers, such as administrative regulations.
– Legal principles issued by Ministerial Decrees, which are administered by a Minister and pertain strictly to a specific Ministry, or required by a mandate issued from the Council of Ministers.
Thus, it is not permissible for Ministerial Decrees, for example, to contradict legal principles found in decisions made by the Council of Ministers or Royal Orders and Decrees. When this does happen, however, it is considered illegal as it violates laws that supersede it and thus possesses no legal authority in itself.
As for the “statement” regarding the ban on women driving, we find that it violates the Basic Law of Governance, which was issued by Royal Order, and it also violates articles in the CEDAW agreement, ratified by Royal Decree. And so, the ‘ban’ on women driving is void and null, thus placing the issue of women driving in Saudi in the “permissible” realm, and it cannot be placed within the “impermissible” realm without a Royal Order or Decree that officially and directly bans women from driving in Saudi Arabia. This, of course, would translate to a withdrawal from the CEDAW agreement with the UN that was ratified by Royal Decree in 2008.
Fourth: Some ask, is it possible for higher legal instruments to cancel out legal principles administered by lesser legal instruments and visa versa?
The answer would be in the legal concept “corresponding formalities”, meaning that if laws and decisions can only be altered by the same legal instrument that issued it, or a legal instrument of higher authority. As an example, if a law is administered through royal decree, than it cannot be altered except by royal decree or royal order. This is also true if a decision was issued by the Council of Ministers that cannot be altered except by another decision from the Council of Ministers, by Royal Decree, or Royal Order.
And so, we find that the “statement” issued by the Ministry of Interior regarding a ban on women driving in Saudi Arabia to have been altered by a higher level of legal authority. This fact is clear in articles of the Basic Law of Governance (issued by Royal Order), as well as the CEDAW agreement (ratified by Royal Decree). Thus making the Ministry of Interior’s “statement” null and void.
Fifth: The more important question I’ve been asked is regarding the Ministry of Interior’s “statement”, is whether or not the Ministry of Interior has the legal right to issue such legal decisions? Let us read Article 44 from the Basic Law of Governance, which states that:
The government branches are:
– Judicial Branch
– Executive Branch
– Regulatory Branch
These branches cooperate to complete their tasks, according to this Basic Law of Governance, and the King is the source of authority for these governmental branches.
This article emphasizes the fact that there are three separate branches: a regulatory branch (legislative) that is embodied in the Council of Ministers and the Shura Council, a judicial institution, and a executive institution that encompasses all Ministries. Thus, it is not legally acceptable for one branch to overreach another branch’s power or legal role. So, the Council of Ministers “administers” laws, while the Ministries are responsible solely for “executing” them. Likewise, the judiciary “resolves” disputes based on these laws. Thus, it is legally impermissible for a minister or judge to create a legal decision that “legalizes or bans” what is not authorized by the Council of Ministers, which possesses the legislative authority to do so. More evidence of this can be found in Article 22 of the laws governing the Council of Ministers, issued by Royal Order, that states, “Each minister has the right to offer advise regarding a laws concerning his ministry. Also, each member of the Council of Ministers has the right to advise to what may be beneficial for the Council of Ministers, after receiving approval from the President of the Council of Ministers”. It can be concluded, then, that any given minister’s task is only to “advise”, for it he had any legislative power than it would have been specified in the previously stated Article 22 that such legislative power existed independently from the Council of Minister’s legislative power as a whole.
In short, in order to legalize or criminalized that which is initially legally permissible, the legislative branch as represented in the Council of Ministers. Additionally, all legal decisions issued by the Council of Ministers must adhere to the legal concept of “generation of legal principles” and refrain from violating legal principles issued by institutions of higher legal authority.
Sixth: When legislative institutions issue a given law, international obligations must be taken into consideration; this includes taking into consideration universal values that all of humanity has come to agreement on. For example, there cannot be a law legalizing slavery and human trafficking, even though slavery is permissible by Quranic text. Nor can it be argued that the text is still valid, for there are new rights concepts that have been reached by humanity, and thus required a new interpretation of the Quranic text in light of the “spirit of law” and its “higher purpose”. Thus, these legislative institutions cannot administer laws which deny a right that is guaranteed by international declarations and agreements, for just as there are internal determinants, there are also external determinants and obligations that must be taken into account when administering a law.
Seventh: All that has been discussed was based on the assumption that a legal “decision” was issued regarding women driving in Saudi Arabia. However, all that we have heard, so far, is a “statement” from the Ministry of Interior. There is a difference between “statement” and “decision”; statements given by the Ministry of Interior on Fridays that announce the enforcement of provisions of retribution, or detainment of those accused of being connected with terrorism, are not “decisions” in the legal sense. This is particularly true in the case of the “statement” issued by Prince Ahmed, which was based on a “fatwa”. Fatwas are not legally binding, nor do they impose any sort of legal requirement. If we were to follow the logic of the “statement” issued, that a fatwa banning women from driving is sufficient grounds to determine women driving as illegal, than we’d be logically forced to recognize the criminalization of eyebrow shaping and pants wearing, since there have been fatwas regarding these issues, and the Ministry of Interior would be responsible for issuing further “statements” on eyebrow shaping and pants.
Prince Ahmed bin Abdul Aziz himself acknowledged that the Ministry of Interior’s duty is to “apply the law”; these laws he referred to are issued by the legislative bodies in Saudi Arabia, not fatwas issued by individuals or even religious institutions. For no one has the legal right to legally “require” anything, unless it is based on an actual law.
The logical question here, however, is what was the legal status of women driving in Saudi prior to the issuance of this statement? Of course, the logical answer is that it was legal, because everything is legal until criminalized by a legal text. Well, why then were women stopped when they attempted to drive in 1991, despite there not being any text criminalizing this act? The answer to this question leads us to the conclusion that this is no longer a legal matter, rather, it is based on the attempt of certain influences to maintain their dominance in society.
[Discussion on a different Legal Case Omitted to maintain focus on Women2Drive]
Manal AlSharif’s case is not only the story of an educated woman that chose to exercise her natural right as a human, it has much larger implications than that. She has brought legal discussions and rights issues to the forefront of society, she has brought life to the law again.