The Principle of Separation of Powers between Sharia and the Positive Law: a Case Study on the Constitutional System of Saudi Arabia

Abstract

The aim of this study is to clarify the extent of the influence of the separation principle of powers in the constitutional system of Saudi Arabia, as it is one of the main principles of democratic systems. Sharia law is the supreme system in Saudi Arabia which necessitates determining the stand of Sharia among this principle. The principle of separation of powers has not been defined in the governance system of the First Islamic State. Therefore, this study seeks to define it. The study on the Saudi constitutional system, the constitutional articles of the Basic System of Governance, the Saudi Cabinet system, and Shura Council system led to the conclusion that the Saudi constitutional system did not take the principle of separation of powers, but merely mentioned that the powers of the country are three and the judiciary is independent. This study showed the overlap between the executive and legislative powers, which means that the Shura Council cannot be considered an independent legislative power. The Islamic political system defines the principle of separation of powers in a different meaning as compared to its definition by contemporary political systems; this is due to the special nature of the Islamic political system. What is worth mentioning is that the Islamic system does not prevent applying the principle of separation of powers in their contemporary application; however, there are certain restrictions in Sharia when applying this principle. In light of the developments in the international community and the claims of rights, freedoms and democracy, Islamic societies and countries that take the Islamic law as a basis for their constitutional system cannot ignore these claims for much longer. Democracy is a western concept, which means it does not necessarily comply with the provisions of Sharia, and so, the importance to develop a concept which is consistent with the Sharia provisions of the Islamic states is increasing. However, what should also be taken into consideration is the social, economic and political developments and the demands of individuals.

Maqashid’s Lens on Checks and Balances of Simultaneous Elections In Indonesia

“…72 Saldi Isra, Pergeseran Fungsi Legislasi Menguatnya Model Legislasi Parlementer Dalam Sistem Presidensial Indonesia (Jakarta: Rajawali Pers, 2010 Much can be learned from ethically and culturally constructed religion regarding its application and implications for government. 75 The underlying principle of maqashid shari'ah is that checks and balances in government are an attempt to realize goodness and avert evil. If the checks and balances mechanism is used correctly, that is, by maqashid syar'iyah, the benefit of the nation will emerge; however, if it is used to intimidate only as a bargaining strategy that deviates from the state's goals, it indicates a deviation from the principles of checks and balances and maqashid syar'iyah because it does not aim at the benefit.…”