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Gulf States: Oman

By:
Nikolaus A. Siegfried
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Gulf States: Oman

Adjacent to the Straits of Hormuz and bordering the United Arab Emirates, Saudi Arabia, and Yemen, Oman has historically been divided between an Ibāḍī community in the interior, governed by an imam, and a more diverse community that lived on the coast. Today, somewhere between 40 and 73 percent of the Omanis are Ibāḍīs, dominating the inland areas of the country, whereas the remainder of the population are Sunnīs who live scattered over the sultanate and especially along the Indian Ocean coastal plain.

The Country’s Sharīʿah Heritage

Because of the geographic coherence of the Ibāḍī community in Oman and the secluded location of the Omani hinterland, the Ibāḍī scholarly tradition was the main legal force there from 751 until 1154, and again since 1429. By contrast, the legal system in the coastal region varied with the respective occupiers (Portugal in the sixteenth and seventeenth centuries, Britain since the late eighteenth century). As a result, Ibāḍī ideas had a consistent impact on the development of legal thought in Oman.

According to Ibāḍī doctrine, the imam in an Ibāḍī state is elected from among the high-ranking ʿulamāʾ and becomes the highest secular and religious leader in the state. His actions, however, must conform to the Sharīʿah, and he may be deposed when he infringes upon any rules of the Sharīʿah. Hence, the ruler is not entitled to a final legal opinion. Instead, until the end of the Ibāḍī predominance in the eighteenth century, Oman’s legal system consisted of Sharīʿah courts in which members of the ʿulamāʾ resolved cases according to rules that they derived through their own independent ijtihād.

Reorganizing Islamic Law under the Āl Bū Saʿīd

Nāṣir Ibn Murshid (r. 1624–1649) was able to drive the Portuguese occupiers from Oman by uniting the region’s tribes against them. This prestige allowed him to keep the imamate within the family for almost a century, until Sayf Ibn Sulṭān II (r. 1718–1743) was again forced to ask for external support—this time from the Persians—against a number of counter-imams. One of his opponents, Aḥmad Ibn Saʿīd (r. 1749–1783), rallied the tribes, ending the Persian occupation in 1741 and marking the beginning of the Āl Bū Saʿīd dynasty that has ruled Oman since. After a struggle among his sons, the British Empire supported the separation of political and religious powers, and agreed upon a protectorate contract with the sultan in 1798. Until 1959 the sultans ruled the coastal area, and the Ibāḍī imams ruled the highlands.

Aḥmad Ibn Saʿīd initiated the move away from the Ibāḍī concept of an independent court system based on the Sharīʿah, appointing qāḍīs and walīs without consulting the ʿulamāʾ. Beginning in the nineteenth century, the British advised the sultans to supplement Sharīʿah rules with laws inspired by British common law. After defeating the last Ibāḍī imam in 1959, the sultans dominated the whole territory. They claimed no religious power, underlining the separation of civil and religious laws. In 1970 Sultan Qābūs ibn Saʿīd deposed his father and shortly thereafter completed this separation by a host of legal system reforms. As a result of these reforms, the role of classical fiqh in Oman has been reduced since the 1970s so that it now governs little more than personal status law.

Early in his reign, Sultan Qābūs established special courts to apply laws other than Sharīʿah-based laws. A decree of 1974 thus established a Committee for the Settlement of Commercial Disputes. It mentions four sources of commercial law, none of which is the Sharīʿah. Since the 1970s non-Sharīʿah courts have also been created to deal with penal cases. As a result of these reforms, the traditional Sharīʿah courts today decide cases of personal status law only. In another departure from classical fiqh, Sultan Qābūs has also introduced appeals courts into the Sharīʿah court system, meaning that now appeal is possible.

Through sultanic legislation (qawānīn) the sultan has increasingly consolidated power in his own hands. Decree 26 of 1975 rules the organization of the administration and the governmental bodies. It identifies the sultan both as the source of all legislation (qawānīn) in the sultanate and the head of the executive branch (articles 2 and 9). In practice, the sultan also acts as a court of final appeal and exercises his power of pardon as chairman of the Supreme Judicial Council, which is empowered to review all judicial decisions.

The qānūn law is reflected in the magistrate court system, composed of forty-two courts of first instance, six courts of appeal, and the Supreme Court. One judge presides over each court of first instance, courts of appeal consist of a panel of three appointed judges each, and the Supreme Court comprises five judges, who standardize legal principles, review decisions of lower courts, and monitor judges in their application and interpretation of the law. Courts provide public attorneys to needy detainees and offer legal defense for defendants facing prison terms of three years or more. Those convicted in any court may appeal a jail sentence longer than three months and fines of over 480 rials (approximately $1,250). Although the law technically allows women to represent themselves in court, more traditional judges occasionally request that female defendants appear in court with their fathers or husbands.

The Role of the Sharīʿah in the 1996 Basic Law

By the 1990s Oman was the only Arab country without a constitutional document, until on 6 November 1996 Sultan Qābūs issued Decree 101. In the Omani Basic Law, Islam plays a central role. Article 2 makes Islam the official religion of the state and declares that the Sharīʿah shall be the basis of legislation. It is worth noting that Oman’s Basic Law describes the relationship of the Sharīʿah to state legislation in a manner slightly different from that of Arab constitutions in countries like Egypt, Yemen, or the United Arab Emirates. Oman describes the Sharīʿah as the asās (basis) of legislation rather than a maṣdar (source) of legislation, as these other legal texts do. The wording of Oman’s Basic Law implies that other laws can be built upon the Islamic foundation and that not everything has to spring from the Sharīʿah.

Three other articles in the Basic Law refer explicitly to the Sharīʿah as applicable law. Article 11(6) states that inheritance is governed by it, and the state commits itself to helping to preserve the family’s legal (sharʿī) structure according to article 12(3). More vaguely, article 33 limits citizens’ rights to form societies and organizations by stating that societies must pursue “goals consistent with Islamic law” (ahdāf mashrūʿah). Recourse to Islamic law is made here to underscore the sultan’s claim to legitimacy as keeper of the religious peace. Article 33 was invoked in 1994, when about two hundred people were accused not only of revolt against the sultan but also of violating God’s law by breaking the religious peace (i.e., committing fitnah).

Aside from mentioning the Sharīʿah, the Basic Law outlines the structures of government and adjudication. Out of eighty-one articles in the constitution, thirteen deal with the judiciary but only one with the parliament (the Oman council, consisting of the Shūrā Council, with eighty-two members elected for a period of three years, and the Council of State, with forty-eight appointed members), indicating their relative importance as institutions. The judiciary is independent (article 60), and judges are subject only to the law (article 61). However, judgments are issued and executed in the name of the sultan (article 71), and he appoints and dismisses senior judges according to article 42(8), so the sultan’s name is closely linked to the judiciary as well.

The decree also confirms that various instances (darajāt) of courts are to be established (articles 60 and 62), and article 68 provides that courts must render a final decision. Article 70 of the Basic Law establishes a constitutional court vested with the responsibility to check laws for conformity with the Basic Law. However, such an institution has not been established. Because the sultan is the highest interpreter of Islamic law in the country, the highest court, the Supreme Court, is not permitted to interpret the meaning of the Basic Law. It only has a right to a legal opinion (raʾy qānūnī rather than fatwā, article 69).

The constitution introduces a number of institutions that were unknown in premodern Islamic legal systems: the public prosecutor’s office (iddiʿāʾ al-ʿāmm, article 64) and a bar council (muhāmāt, article 65). Oman’s first lawyer, a Syrian, was admitted in 1971, but the 1996 Basic Law now gives every accused the right to a lawyer (article 23).

[See also COURTS; IBāḍī SCHOOL OF LAW; IJTIHāD; and SHARīʿAH].

Bibliography

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  • Peterson, J. E. “Tribes and Politics in Eastern Arabia.” Middle East Journal 31, no. 3 (1977): 297–312.
  • Pridham, B. R., ed. Oman: Economic, Social, and Strategic Developments. London: Croom Helm, 1987.
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  • U.S. Department of State. Country Reports on Human Rights Practices. Various years. www.state.gov/g/drl/rls/hrrpt/index.htm.
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