UPDATE: The Legal System and Research in the Sultanate of Oman

By Khalil Mechantaf

Update by Thomas Wigley

Thomas Wigley is a partner at Trowers & Hamlins and has over 15 years of experience in the energy and infrastructure sector predominantly built up in the Middle East as well as with experience of working in the UK and Far East. Tom is the Resident Managing Partner of the Oman office and heads up the firms' ranked Energy & Infrastructure practice which undertakes work across the Middle East. He works on power generation and transmission, water and infrastructure development projects along with oil and gas.

Published March/April 2020

See the Archive Version!

1. Historical and Legal Background

The Sultanate of Oman is the oldest independent state in the Arabic Gulf and is a monarchy. His Majesty Sultan Qaboos Bin Said Al Said ruled the Sultanate of Oman from 1970 until 2020 when his cousin, His Majesty Sultan Haitham bin Tariq, succeeded him. The Sultanate is divided into eleven administrative divisions, known as governorates, with Muscat as the capital of Oman. Muscat is both the capital city of Oman and one of the eleven governorates. The eleven governorates are as follows:

Governorates are, in turn, divided into 60 provinces, known as wilayats.

The legal system of the Sultanate of Oman was codified in a Constitution issued by the Royal Decree No. (101/1996) on 6 November 1996 and is known as the Basic Law of the State. The Basic Law consists of 81 Articles establishing the legal and political framework within which the State operates. It defines the roles and responsibilities of the State and provides for the political, economic and social principles guiding its policies. The Basic Law also guarantees fundamental rights and freedoms, protects property rights and upholds the independence of the judiciary. The Basic Law was amended by Royal Decree No. (99/2011), on 20 October 2011, to update the succession process and expand the role and duties of the Council in Oman.

1.1. Legislation

The Omani legal system is composed of a mixture of a civil code system and Islamic law. The religion of the State is Islam and the Islamic Shari’a is the basis of legislation (article 2 of the Constitution). There are two types of legislation in Oman: primary legislation, in the form of Royal Decrees, and secondary legislation, in the form of Ministerial Decisions.

His Majesty the Sultan implements primary legislation through Royal Decrees. A number of Royal Decrees delegate specific powers to relevant executive or ministerial bodies. Those delegated bodies then have the power to enact secondary legislation, Ministerial Decisions.

1.2. Jurisdiction of the Courts

Commercial disputes were initially dealt with by The Authority for the Settlement of Commercial Disputes (ASCD). However, Royal Decree No. (13/1997) changed the title, structure and powers of the ASCD. The ASCD became a three-tiered structure known as the Commercial Courts. The Commercial Courts are comprised from lowest to highest tier of the Primary, Appellate and Supreme Courts. The Primary and Appellate Courts have commercial, civil, criminal, Shari'a and labour circuits.

Royal Decree No. (13/1997) stipulates that all governmental bodies, departments, authorities and general institutions fall within the realm of the Courts’ jurisdictions. In the event of a dispute, parties may voluntarily seek medication by conciliation committees prior to attending court (Conciliation and Settlement Law Royal Decree No. (98/2005).

Royal Decree No. (90/1999) introduced the Supreme Court as the highest court in the country. Moreover, the Supreme Judicial Council was established by Royal Decree No. (9/2012) under chairmanship of the Sultan. The Sultan selects further members of the Council and aims at ensuring the values and ethics of the judiciary are followed and that the system is independent.

Although the Omani Court system is based on the Shari'a, they are used in the Commercial Courts as principles, rather than the basis for decision. Though the principles of Shari'a may be used to address issues in the Commercial Courts which are not covered by existing Omani law. Another crucial element of the Omani Courts system are the Shari'a Courts. The Shari'a Courts are acting within the Islamis Shari'a Law and predominantly deal with personal matters such as marriage, divorce, inheritance and other family disputes.

The Constitution also provides for specialist jurisdictional courts such as Military Courts. Military Courts shall be restricted to military crimes committed by members of the armed and security forces and shall only extend to others in the case of a martial law within the limits laid down by that Law (article 62).

2. System of Governance

2.1. Succession

The system of government is a hereditary Sultanate in which succession passes to a male descendant of Sayyid Turki bin Said bin Sultan. Within three days of the position of Sultan becoming vacant, the Council of the ruling family shall determine upon who will succeed to the throne. If the Council fails to agree upon a successor, the Defense Council together with presidents of the State Council, the Shura Council, the Supreme Court and two of its oldest deputies shall confirm the appointment of the person designated by the Sultan in his letter to the Family Council (article 6 of the Amendment to the Basic Law).

The male who is chosen to rule must be an adult Muslim of sound mind and a legitimate son of Omani Muslim parents (article 5). The chosen Sultan assumes his powers after taking the oath (article 7).

The powers of the Sultan are absolute. The Sultan's powers include the protection of Oman’s sovereignty and the rights of its citizens; the rule of law, representing the State on the national and international levels, presiding the sessions of the Council of Ministers, appointing and recusing the highest Judges, declaration of Peace and War, issuing and ratifying the laws and signing of treaties.

2.2. Principles and Rights

Oman is governed according to political, economic, social, cultural and security principles laid down in articles 10 to 14 of the constitution. For example, the ownership by the State of natural resources, a free market national economy, the prohibition of confiscation of private property and equality of opportunities between Omani citizens.

The Constitution has also provided various civil rights that should be respected. Those rights include, but are not limited to the examples set out below:

2.3. Hierarchy of Laws

Under article 72 of the Constitution, any treaties and agreements concluded between the Sultanate of Oman and other States and international bodies and organizations take precedence over the Constitution. International treaties and agreements enter into force upon ratification.

Transparency in international relations is protected by the Constitution since no treaty or agreement may contain secret conditions that contradict its declared conditions. Whilst the Constitution places treaties at the peak of the legal hierarchy, all laws and procedures drafted in Oman must conform to the provisions of the Constitution (article 79).

In addition, no State body may issue rules, regulations, decisions or instructions which contravene the provisions of laws and decrees in force, or international treaties and agreements which constitute part of the law of the country (article 80).

2.4. The Powers Within the Sultanate

2.4.1. The Head of State

The Sultan is the head of state and supreme commander of the Omani armed forces. Article 42 of the Constitution details the powers which the Sultan has. For example, the Sultan:

Due to His Majesty's role as Sultan, the Sultan is also the President of the Council of Ministers (the Council). The Sultan is assisted in drafting and implementing the general policy of the State by the Council and other specialized bodies.

2.4.2. The Council of Ministers

The Council is made up with of the Prime Minister, any Deputy Prime Minister and all the Ministers from each ministry. The Council is the body entrusted with implementing general State policies for economic, social and administrative developments. The Council submits its economic, political and social recommendations to the Sultan and proposes the draft laws and decrees. Upon confirmation of the Sultan, the Council supervises the enforcement of the laws, decisions and treaties. The Council oversees the administrative bodies of the State to ensure the correct performance of their duties and implementation of the law.

The Sultan presides over the Council's sessions and has the right to entrust the chairmanship of sessions that he does not attend to one of the deputy Prime Ministers. If the Prime Minister and his Deputies are absent, the Sultan will authorize whoever he sees fit to chair the sessions. The quorum required for a valid holding of the Council’s sessions is the majority of its members. Its deliberations are not published, and the decisions are issued with the approval of a majority of those present during the session. The Council adopts its own rules of Procedure for the holding of its sessions. The Prime Minister

The Sultan automatically presides over the Council of Ministers. However, the Sultan also appoints a Prime Minister if he requires. If appointed, the competence and mission of the Prime Minister will be limited to those specified in the Decree of his appointment (article 48).

The Sultan may also appoint the Deputy Prime Minister and the Ministers (article 42). The Ministers are obliged supervise the affairs of their ministries and organizations, and implement the general policy of the Government, as well as drawing up future guidelines. Members of the Council of Ministers are held jointly and severally liable before the Sultan in carrying out the general policies of the State, and each is individually responsible before the Sultan for the discharge of his duties and the exercise of his powers (article 52).

Members of the Council of Ministers are not allowed to be board members of any joint stock company. Nor may the Government departments of which they are in charge have dealings with any company or organization in which they have an interest, whether direct or indirect. Members are to be guided in all their actions by considerations of national interest and public welfare and should not exploit their official positions in any way for their own benefit.

All financial matters related, among others, to the collection of taxes, the general State budget and the final account, currency and banking, salaries, pensions, indemnities, subsidies and gratuities charged to the State Treasury and the bodies responsible are determined by the law (article 57). Specialised Councils

When necessary, specialised councils can be established to assist the work of the Council of Ministers and the Ministries in the conduct of their tasks (article 56). Their powers are defined and members are appointed in accordance with Royal Decrees.

2.5. The Oman Council

The Oman Council is made up of two separate chambers: the State Council and the Shura (Advisory) Council.Both chambers assist the government in drafting general policies and vote by majority.

The State Council is the upper chamber and is comprised of members selected by the Sultan who satisfy certain criteria, including being over the age of forty years old, having suitable expertise and no criminal record. The Shura Council is comprised of 84 elected members representing all the wilayats of Oman. There are also certain criteria for Shura Council members including, being 30 years old or over, no criminal record that impairs honour and have the minimum of a Graduate Diploma. The candidate can be male or female and is voted in by their specific wilayat.

The Oman Council was granted legislative and auditing powers by the Royal Decree No. (99/2011) which significantly changed the composition, membership and responsibilities of the Oman Council. Royal Decree No. (99/2011) significantly altered the composition, membership and responsibilities of the Oman Council by introducing 45 new Articles. The powers of the Shura Council now extend to legislative powers and the authority to scrutinise the government's performance. At the request of at least 15 of its members, the Shura Council may question review public service ministers to analyse whether they are acting within their powers or exceeding the law.

Both the Shura Council and the State Council now have the power to approve or amend any draft laws prepared by the Government. The State Council may also propose draft laws for the Government to consider. The Oman Council also has the power to review and provide its recommendations in relation to development plans, annual budget and any proposal to accede to or conclude an economic or social agreement.

All laws are published in the Official Gazette within two weeks of the day of their issuance. Laws come into force from their date of publication unless they provide for another date (article 74). The Constitution generally prevents the retroactive effect of Laws, unless the text specifies otherwise. There are defined exceptions on the non-retroactivity principle including in the case of criminal Laws and Laws concerning taxes and financial dues (article 75).

According to the Constitution, the law also specifies the frequency of the Councils’ sessions, their rules of procedure, the number of the members of each Council, the conditions which they must fulfil, the method of their selection or appointment, the reasons for their dismissal, and other regulatory provisions.

Since political parties are banned in Oman, all the candidates elected are independent and non-partisan. The right to vote is fixed at the age of 21 for both men and women.

2.6. The Judiciary

All judicial appointments are decided by the Sultan. Articles 59, 60 and 61 of the Constitution provide for the rule of law, the impartiality of the judge, the independence of the judiciary and the prohibition of any interference in a lawsuit or in the matters of justice. All court hearings are public, though at the discretion of the court, as matters are heard in chambers when it is in the interests of public order. However, the pronouncement of findings and sentence is made in open session (article 63).

All judgements made by the judiciary must be in line with the Constitution. Any law must not be dealt with in a manner that contravenes the Constitution (article 70). All judgements made by the judicial entities are done in the name of His Majesty the Sultan. Failure or delay in executing these judgments is considered a crime punishable by law. In such a case the winning party is entitled to file a criminal action to the court concerned (article 71).

3. Laws and Legislations

It should be noted that the legislative regime in Oman is constantly changing and so up to date advice should be sought before relying on the information in this report.

Legislations related to the Courts and the Judiciary

Legislations related to political life

Legislations related to Commercial and Economic affairs

Legislations on nationality and passports

Legislations related to Criminal Affairs

Legislations on property and real estate

Legislations on civil matters

Legislations on the Environment