The UAE Legal System
| Subject: | ⚖️ Law |
| Type: | Analytical Essay |
| Pages: | 20 |
| Word count: | 5162 |
| Topics: | 🏛️ Justice, Social Justice |
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Table of Contents
Introduction
The United Arab Emirates’ (UAE) legal system is one of the most complicated in the world. It is a combination of common laws and civil laws that have ancillary branches including comparative laws and family laws. Also, the court structure of the UAE’s legal system is complicated as some cases cannot be heard in regular courts but in specially created dispute settlement mechanisms. Even though the legal system of the UAE is complex, it is governed by a legal constitution that was effected in December 1971. Although in other legal systems such as that of the British and other nations use previous judgments in their court proceedings, the UAE’s legal system is different and applies different provisions for every case. In fact, where no legal provisions are made with regard to a specific issue, judgment is drawn from Sharia law, which uses the Islamic jurisprudence. As a matter of fact, before the passing of the constitution, most disputes were settled using customary law and customary judges handled personal and criminal disputes. However, many disputes were related to commercial relations, especially with the pearl trade. In modern UAE, the legal system operates in a parallel structure of sharia courts systems and civil court systems but is more advanced. Also, the UAE’s legal system is influenced by the French, Roman, and Egyptian laws. Since the Egyptian law system is largely influenced by the Islamic religion, the UAE uses it as a reference for its legal system. Nevertheless, the UAE legal system uses sharia law as its main source, which closely follows the teachings of the Islamic religion. On the other hand, the UAE has obligations to the international community in light of the observation of international law that culminated from the signing of the international conventions. Different states in the UAE have adopted different legal systems that apply within each state.
Background
The UAE is made up of seven emirates/states including Dubai, Abu Dhabi, Ajman, Fujairah, Sharjah, Umm Al Quwain and Ras Al Khaima. Before, the modern legal system was introduced, tribesmen were in charge of settling disputes and the political landscape was based on tribes. However, the biggest aspect that has shaped the social and political arena of the UAE is the Islam religion, which is largely practiced in the UAE. The tribal system also assisted in shaping the legal system of UAE and interaction between the Islam system and the tribal system has formed the legal history of the UAE. In 1968, the rulers of the Dubai and Abu Dhabi Emirates convened a meeting to discuss the creation of federal agreement and later invited the rulers of the remaining states to join them. Even though the Emirates of Qatar and Bahrain were invited, they refused to join the others in the creation of a federation agreement and chose to remain independent after Britain left the UAE. Thus, in 1971 December, the UAE was formed including only the seven states. As a result of the merger, a constitution was formed that governs the government of the UAE, which is represented on two levels. So, the constitution provides for the central government and the local governments. Hence, the application of customary law is done by the local rulers on behalf of the local government. It also assists in the administration and organization of the local government and uses both written and unwritten laws. On the other hand, the central federal government follows a western type of constitution that divides it into three arms including the judicial, executive and legislature. The constitution provides for a supreme council that has the duty of making policies and dealing with other legal issues that involve the UAE as a federal government.
Judicial Structure
Under the UAE’s constitution, each state has the authority to establish its judicial system or unite with the federal court system. The federal court system is divided into sharia, criminal and family law. As a matter of fact, the Dubai court system has the trial or first instance court, the court of appeal and the Cassation or Supreme Court. Similarly, the state court system has the three levels of courts. The first instance court is sub-divided into three parts including the small claims court, the ordinary court, and the serious offenses division. The small claims part handles minor offenses and is presided by only one judge. In the ordinary court, one to three judges may preside over cases that cannot be handled in the small claims part or the serious offenses division. On the other hand, the serious offenses division could be presided over by one to three judges depending on the decision of the chief justice. In the serious offenses court, serious criminal offenses are handled, which result in a sentence of over ten years in prison or capital punishment. In the court of appeal, cases dealt with are those involving appeals made regarding the decisions made by judges in the first instance court. When an appeal is made involving a decision made by a judge in the small claims court, one judge presides over the case. However, if an appeal is filed due to a decision made in the ordinary or the serious offences divisions, then two judges preside over the case. Nonetheless, if the chief justice sees it fit for an appeal to be presided over by more than two judges, then more judges are involved. Finally, the cassation court presides over cases that involve the appeal of a judgment made in the court of appeal. If the judgment has legal error, then the court of appeal presides over the case, however, factual errors cannot be used as ground to take a case to the Supreme Court. Such cases are presided over in a chamber consisting of the court president and at least four more judges.
Comparative Law
Under the UAE’s comparative law, the rights and freedoms of the citizens of the seven states are protected. Also, the constitution indicates the federal duties and responsibilities that are both economic and social pillars of the UAE as a federal government. Subsequently, the constitution also deals with the financial and security affairs of all the emirates that form the UAE. The UAE legal system is interpreted using various methodologies and the comparative method is widely used because of the many aspects drawn from other sources. Comparative law usually compares matters of legal systems including legal family and the similarities or differences between two or more legal systems. In the UAE, some laws from the European Union are used by judges when making a judgment in a court of law. In fact, laws such as that of marriage and child adoption resemble those practiced in the western nations such as the USA. For instance, juvenile courts in the UAE preside over cases of individuals who are below eighteen years old. Similar to the western legal systems, judges cannot impose fines, capital punishment or imprisonment as sentences for crimes committed by juveniles. There are some differences between the legal system of Dubai and the other states. Since Dubai is extremely modernized, it has a high number of expatriates and economic activities. Although it has independent judicial authority like the other emirates, it has a special feature in its system, namely: the Dubai International Financial Centre. Even though the systems are different, their legal structures and principles are understandable and highly logical. The laws have evolved over centuries the same way as those of the West have due to the changes in the needs of society. Foreign investors can do business in the UAE because commercial laws have been liberalized, creating a more open business environment.
Sharia Law
The similarities between the legal systems of the UAE are significant. In fact, the legal system is based largely on the Quran or Sharia law. Consequently, the UAE constitution identifies Islam as the religion of the state and the main source of its law. Nonetheless, even though the sharia principles influence the civil and criminal law, the social laws in the UAE are the ones directly affected. The social laws include family law, succession or divorce laws. On the other hand, issues related to commerce are handled by the civil courts or arbitration tribunals that are permanently established. As a matter of fact, some core principles of Sharia law are applied in business transactions and have influenced the development of commercial codes applied in the UAE. In most of the Emirates, Sharia law has been overshadowed by the civil and criminal laws, but in Emirates such as Abu Dhabi, it is still largely applied even in disputes presented in civil courts. The punishments imparted under sharia law to those who have committed offenses are different from those given in the parallel federal courts. For instance, criminal offenses such as alcohol consumption and adultery are still punished in the old-fashioned way. In fact, those who have committed such offenses are sentenced to flogging where they receive a stated number of lashes. Also, Sharia law still uses stoning criminals to death as a legal punishment for various crimes. Sharia law in the UAE is strict and abortion and verbal abuse are also considered to be serious crimes that attract a punishment of up to five years in prison. Since sharia law is the main foundation of the UAE legal system, it ensures that the UAE is a highly conservative nation. Indeed, the smallest display of affection in public is considered to be a crime and is punishable by law.
Family Law
The UAE’s legal system has adopted many laws that are related to family matters from other countries. In addition, the constitution has been modernized and presently, UAE issues such as marriages between a Muslim and a Christian or Hindu are no longer impossible. Adoption laws also enable individuals to take custody of children as their own legally. Documents signed, including marriage contracts, stipulate the conditions of the union and protect those involved in the relationship. Matters that relate to disputes arising from family affairs such as divorce are handled by the first instance courts found in each emirate. So, the federal courts do not get involved in such matters as they are considered to be minor. Because divorce may lead to other legal claims such as child custody, visitation rights, and expenses, the court has jurisdiction over such issues and handles the cases. In the UAE, prenuptial agreements, particularly those signed before marriages in Muslim unions, fall under personal status law Article 51.1 of the constitution. In fact, customary rituals and rights concerning dowry paid by a groom to his bride are recognized by the constitution. Consequently, the law requires all parties involved in an agreement of any kind to understand the provisions of that particular agreement. Moreover, the law provides for the disclosure of assets before contracts including marriage are signed.
The Legal Influences That Have Played a Part in Shaping It to Reach Its Present Form
Stages of the Transformation
The transformation that the UAE legal system went through two clear stages before getting to its present form. First, there existed the tribal systems that were made up of its customary norms and rules and in cohesion with Islamic Sharia, shaped the judicial and law practice. Second, the process of changing the traditional system into the current one took place. Evidently, the legal influences that played a pivotal in the transformation were a clear indicator of the autonomy of the UAE. They also show the impact of the change from a framework that was extensively based on indigenous norms and the Sharia law to a system that was defined by secular laws that are based on a Western background. These legal influences are seen to have resulted in the UAE establishment in 1971.
The First Stage
The first stage was concluded in the 1960s and the tribal system was a major influence in shaping the UAE’s legal system prior to and following the founding of the Emirates as political units in the 18th and 19th centuries. In spite of British supremacy during this period, the Emirates were independent and had their judicial authority. The Emirates were regarded as the Trucial States and were built on tribal structures. Regardless of their independence, they were presided over by a Sheik that had been appointed by the family elders. There was no constitution and the Sheiks led in an autocratic manner. Legally, the rules had judicial, executive and legislative authority. The situation influenced the development of the UAE legal system in the first and second stages and this will be explained further.
The administrative system in the first was so primal that it was perceived to be virtually non-existent. There were no judges and law courts and it can be understood that it was until the 1950s when the tribal and traditional rules were no longer applicable. Consequently, there were frequent disputes between the tribesmen and the rulers. The judges that operated in the towns were not trained but they were well informed of the Quran and other sources. Pearling and merchant communities had their customary courts that reached decisions in the event of disputes. The Emirate rules started forming Sharia courts in different coastal towns following the regional advancements that had taken place in the region.
The judicial systems that existed in the tribes are seen to be a critical aspect that contributed to the development of the legal systems. It follows that the tribes were made up of thousands of members that were divided into groups. Due to the nature if the tribal system most of the cases were handled at the tribal and family levels and did not get to the judge. Notably, most of the disputes were settled by the tribal chiefs. Serious offenses such as murder were deliberated on using the Sharia law. Despite the fact that tribal system was seen to be a basic stage in the development of the UAE legal system, it difficult to accept the rulings that were made by the chiefs as judicial decisions.
The Sharia courts were set up to handle the crimes that emerged because of the increased movement of foreigners to the Coastal towns. The development caused a rise in crime rates and property disputes. Therefore, the Sharia Courts were established to handle the disputes between the individuals that did not have any tribal relations. Sharia Court judges were appointed by the rulers and they did not adhere to specific procedures during trial. The jurisdiction of these courts covered property-linked disputes, debts, family law and the penal code and this is taken to be a key stage in the advancement of the judicial system.
Customary judges were also appointed to make rulings on specific issues. They heard the cases that the pearling judges did not and their jurisdiction did not cover foreign trade. It was mandatory for these judges to have knowledge and experience in obligations and peoples’ rights in the local and foreign contexts. The decisions that were made by the customary judges were not perceived to be binding unless the parties involved agreed to them. Based on this context, the role of the customary judges proved to be inferior and this explains the move towards a contemporary legal system that did not acknowledge their significance in matters of national importance.
British dominance in the region impacted the legal system prodigiously. This was characterized by the movement of foreigners into the UAE as well as growing links with other countries. It goes to a point where the jurisdiction of Sharia courts and other courts were limited to matters that involved native citizens. At this point, British jurisdiction covered Britons in light of the British Nationality Act of 1948. It can be noted the there was a decline in British jurisdiction from 1960 and it was formally eliminated in 1971 due to the emergence of the UAE. The UAE gained jurisdiction over all institutions and residents. The practices of the British jurisdiction cannot be ignored and is evident in the formulation of the present-day law system in three ways. These include some of the laws that were formed in the Trucial Emirates before 1971 that were clearly based on the British legal theory. Additionally, the laws that the British government had introduced across the globe were used without customization. Finally, some changes were made to the laws to match the local conditions. After the British moved from the UAE, all the relations with the British legal system were eliminated. New laws were introduced according to Islamic Sharia and the legal systems in other Arab countries such as Sudan and Egypt. Despite this, the British system played an imperative role in setting a solid foundation for the legal system and served as a way of merging institutionalization in the UAE’s legal framework. It paved the way for governmental involvement in the legislation process.
The Second Stage
After the British government announced that it would withdraw from the UAE by 1971, the rulers came to the realization that it was indispensable to come with departments that would deal with issues that had been previously left to the Britons. It was necessary to come up with new courts as the British courts would no longer be practical. There was an urgent need to fill the vacuum that had been left and this necessitated modernizing legal institutions and systems within the UAE. There were no locals that specialized in legislation and to attain the much-needed change, legal experts from countries such as Iraq, Sudan, and Jordan were given the task to replace the judicial and legal system. The laws that were drawn were not known by the citizens and the government. Owing to this, there is a continuing conflict between traditionalism and modernization that is deeply rooted in the codified law. To date, the codified law has not been credited by the government and the citizens.
The laws that were formed by the experts can be placed into categories: The Abu Dhabi laws and the Dubai laws. The basis of these laws involved the administration, establishment, and organization of the judiciary. Concerning to the Abu Dhabi legislation, there were three main laws that associated with the judiciary administration. These were the Criminal Procedure Law of 1970, Abu Dhabi Civil Procedure Law of 1970 and the Abu Dhabi Courts Law of 1968. In addition to these laws, there were other criminal acts that were formed to deal with offenses such as drug trade.
On the other hand, the Dubai legislation was issued in the 1970 and entailed different laws that were taken to be crucial such as the Dubai Courts Law of 1970 that was centered on the establishment and organization of the Emirate courts system. It was perceived to be one of the most influential legislations during that era as it was the first to use a secular system to organize and establish Sharia courts, it showed the desire of the local system to move towards the secularization of the courts and had a far-reaching impact. The law is still applied to the modern times and various modifications have been made to legislation such as the High Court of appeal formation in 1988.
The new legislation that was prepared by the specialists is seen to have negatively influenced the legal system and some of the weaknesses can be observed to date. This is ascribed to the fact that the specialists were unaware of the values of the locals and their customs and this affected the outcome of the new legislation. The specialists were of the opinion that what worked for their country would work for the UAE. They disregarded the fact the legal system that was needed in the country was new and would consider the past influence by the British rule. It can be seen that presence of the foreigners made the UAE highly diverse and this explained that a unique set of laws would be required to govern the country. The specialists did not take into account the fact that legislation is influenced by the political and social spheres in a country. This contributed to the lack of credibility.
The institution of new laws led to the abandonment of Sharia law but this was not reflected on the ground. The government and the citizens felt that the laws were not a reflection of their beliefs and did not represent them. At this point, it can be argued that the lack of approval of the new laws also influenced the present legal system. Shortly after the introduction of the legislations, they were taken to be alternative rules instead of obligated ones. The Abu Dhabi Courts Law of 1968 legislation is a clear indicator of the lack of legal force. The act led to the introduction of secular courts whose judges used the Western approach. The rule state that Sharia law would only be used in personal issues. At this time, a conservative Muslim society existed and the law was understood to be a direct offense to the religion. As a consequence, conflict emerged between the used of the new statute and Sharia law. The use of the law was characterized by a high level of confusion as the courts and the citizens were unclear on the statute to which to subscribe. The UAE has a bipartite legal framework and this can be attributed to the lack of understanding and certainty over the best system to adhere to.
The family of the UAE legal system
There has been a contentious discussion about the family to which the UAE legal system belongs. On one hand, most of the legal issues in the country are viewed from the Sharia law standpoint. On the other hand, there was a new legislation that was introduced upon the establishment of the nation. The UAE legislation system belongs to the theoretical law family and this means that it is based on religious stipulations. It is dependent in morality rather than other aspects in the political and social spheres. The Constitution outlines the position that Sharia law takes in the legal system. Islam is regarded as the formal religion of in the UAE as stated in Article 7 of the Constitution. Aside from this, Sharia is taken to be the primary source of the legislation. The clause is noteworthy and is considered by the federal legislature to be the basis of Islamic laws in the system. There are those that have stated that the provision of the legislation is unclear and there are varying meanings that have been adopted. This, however, does not affect the family that the legal system belongs.
The question on the predominance of the constitution comes into play while establishing the family. The power of the Constitution in the UAE was shaped by the origin of the new laws in the UAE that were guided by the Egyptian constitutional writing. Notwithstanding the fact that the constitution is written or customary, it is taken to be the most superior law in a country. Politicians and jurists all adhere to the superiority of the constitution. The legal system is built on the Constitution and defines the jurisdiction of public authorities that it establishes. In other words, all public authorities would not exist if it were not for the Constitution. Going against the constitution means that the order of the foundation of the state has been contravened. The understanding on the dominance of the constitution cannot be traced from the English common law of tradition and this goes ahead to prove that the UAE legal system belongs to the theoretical family.
The sources of legal argument can be utilized to prove why the UAE’s legal system is classified as theoretical law. It is imperative to look into the term ‘source’ that has different meanings in the legal context. In this case, the concept refers to the origin of the legal system which is the Quran, for the UAE due to the extensive use and influence of the Islamic law. The term is confusing in Arab jurisprudence, as it refers to two different sources of law which are subjective (material) sources and official or formal sources. The formal sources are those that are referred to for real laws. Article 1 of the Egyptian Civil Transactions code defines what formal sources are. It states that all formal sources shall be applied in all cases that are provided for and there is no legislative text that can be used, the Sharia law shall be used. These formal sources are further divided into two classes which are supplementary sources that are composed of different ranks and supplementary sources that are consulted in some instances. Material sources are referred to as the remote legislation sources such as the cultural heritage in a given country and customary norms. The Quran is seen to be the major source of the UAE legal system and this supports the assertion that it belongs to the theoretical law family.
The current position of Sharia in the constitution creates a better understanding of why the legal system is taken to be theoretical law. Sharia as a component of Islam that is one of the historical sources of many statutes. Historical and religious aspects are considered in the definition of material sources and this makes Sharia one. The position of Sharia law as a material source has remained the same since the constitutional promulgation. It is not taken to be a formal source but it gains influence judging from the argument that the constitution guides the legislature. Deeming Sharia a material source means that the provision of the Constitution does not view the Sharia injunctions as being substantial. These injunctions are referred to as religious laws that are not enforceable unless from a moral standing. The Junatta Bank Case brought issue the issue of superiority of Sharia law into perspective as the problem of interest usury (Riba). The decision that was made is allied to Islam. Case number I year 853 relating to alcohol drinking laws also shows Sharia law is commonly used to deliberate over social issues. The UAE legislature is bound to obtain all statutes from the legislature making the legal framework theoretical law.
Benefits of a Comparative Study
The last part of the analysis looks into the essence of comparative law. In relation to this, comparative law offers a different perspective on the law as there is a wide range of disciplines that have come up over the years and are likely to affect the UAE legal system. For example, the economic and law disciplines teach individuals to analyze the practical and economic effectiveness of the legislation. Critical legal studies have valuable lessons on appreciating and learning about power relations that are embedded in laws. Literature and law cover the complexity and power of language in defining legal data. The comparison is conducted to help countries stick to lessons of post-colonialism and post-modernism. While looking into the benefits that UAE stands to gain from the comparative study, it is essential to ask whether it is an imposition of influence on the developing countries or a field that is heavily swayed by the West. The UAE seeks to benefit by getting better insight on the legislation system as well as its origin.
For a legal system to be effective, it should be in line with the context and employ insight from other areas of study such as history, logistics and sociology. This means that comparative law will help the UAE in deciphering the framework on which their legal system rests and the forces that resulted in its establishment. It would help the country solve some of the existing issues with regards to the application of the new legislation versus the use of the Sharia law. This is one of the leading controversies in the UAE law system that has not be addressed to date as previously explained.
Comparing the legal systems in different nations can help the UAE establish whether their laws match global standards in areas such as labor and personal and data privacy. The world has become a global village and the UAE should work towards keeping up with contemporary trends in diverse fields including law. Various countries such as the US and the UK have a free market system and information is exchanged freely. This can serve as an example to the UAE to make its personal and data laws more flexible for the benefit of the citizens and the free exchange of information. Such comparisons can lead to an improvement of the law and this improves the welfare of the citizens.
Conclusion
In summation, the UAE legal system has evolved over the years following changes in the law and to match the continuing developments. In spite of the intricate nature of the UAE legal system, it is clear that the Sharia law has the highest influence. History shows that there has been a change in the use of the legal system from customary to the British system and this was replaced by the modern system. Initially, there were no institutions and the British system is seen to have informed their establishment. Asides from this, there was no court system and judges and customary law was adopted to solve the disputes that came up among the community members. However, there was an increase in the number of immigrants in the Coastal regions and this motivated the founding of an advanced legal system. The British era contributed to the legal system as it introduced some traditional English laws that were universal. This explained the lack of a legal system and the British troops departed.
It became mandatory to come up with a legal system prompting the hiring of experts. Some of the issues stem from the hiring of experts to draft the country’s laws following the end of British era. The UAE did not have qualified individuals that could work on the legal system. The other Arabic countries that were consulted to make the laws had developed legislation systems that were in line with the political and social standing. They failed to take these into consideration while making rules that were appropriate for the UAE. The citizens as well as the government did not acknowledge the new legislations as they did not meet their needs and did not match the context. An evaluation of the UAE legal system shows that it belongs to the theoretical law family. This is owing to the fact that it is based on Sharia law. The comparisons that have been made show that there a lot that UAE can learn from the systems in other countries and some changes can be incorporated to minimize the complexities. These problems have persisted over the years. It is about time that the UAE legal system embraced the changes that have taken place in international law and match them with the country’s political and social contexts and this will help in resolving some of the historical intricacies that will change the current state of affairs.
Journals
- Al-Muhairi, Butti Sultan Butti Ali. “The Development of the UAE Legal System and Unification with the Judicial System.” Arab Law Quarterly 11, no. 2 (1996): 116-160.
- Al-Muhairi, Butti Sultan Butti Ali. “The Position of Sharia within the UAE Constitution and the Federal Supreme Court’s Application of the Constitutional Clause concerning Sharia.” Arab Law Quarterly 11, no. 3 (1996): 219-244.
- Bredimas, Anna E. Methods of interpretation and community law. Vol. 6. North Holland, 1978.
- Carballo, Alejandro. “The Law of the Dubai International Financial Centre: Common Law Oasis or Mirage within the UAE?” Arab Law Quarterly 21, no. 1 (2007): 91-104.
- Eberle, Edward J. “The method and role of comparative law.” (2008).
- Dolemeyer, Barbara. “Legal families.” European History Online (2012).
- Johnson, Toni, and Lauren Vriens. “Islam: governing under Sharia.” Council on Foreign Relations 24 (2011).
- Tamimi, Hind. “Interest under the UAE Law and as Applied by the Courts of Abu Dhabi.” Arab Law Quarterly 17, no. 1 (2002): 50-52.
Academic Papers
- Rayner, Susan Elizabeth. “The theory of contracts in Islamic law: a comparative analysis with particular reference to the modern legislation in Kuwait, Bahrain and the United Arab Emirates.” PhD diss., University of Cambridge, 1989.
- Sidani, Yusuf M. “Does Islam Impede Development? A Look at the Role of Islamic Laws and Social History.” (2014).
Books
- Al Tamimi, Essam. Practical Guide to Litigation and Arbitration in the United Arab Emirates: A Detailed Guide to Litigation and Arbitration in the United Arab Emirates Based on Federal Laws, Laws Specific to the Individual Emirates, Judgments Delivered by the Court of Cassation and International Conventions to which the United Arab Emirates is a Member. Kluwer Law International, 2003.
- Dupret, Baudouin, Maurits Berger, and Laila Al-Zwaini, eds. Legal pluralism in the Arab world. Vol. 18. BRILL, 1999.
- Gorgenländer, Viktor. A Strategic Analysis of the Construction Industry in the United Arab Emirates: Opportunities and Threats in the Construction Business. diplom. de, 2010.
- Katzman, Kenneth. United Arab Emirates (UAE): Issues for US Policy. DIANE Publishing, 2010.
- Price, Richard, and Essam Al Tamimi. United Arab Emirates Court of Cassation Judgements: 1998-2003. Vol. 27. Brill, 2005.
- Zahlan, Rosemarie Said. The Making of the Modern Gulf States: Kuwait, Bahrain, Qatar, the United Arab Emirates and Oman. Vol. 10. Routledge, 2016.
Book Chapter
- Michaels, Ralf. “The functional method of comparative law.” (2006): 339.
Cases
- The Junatta Bank Case
- Case number I year 853
Offered for reference purposes only.