The Justice in United Arab Emirates - Research Paper Example

?The justice in United Arab Emirates Introduction The structure and the rules of a country’s legal system can highly affect the country’s performancein regard to all its sectors, including its positioning as a member of the international community. In any case, the legal framework of each country needs necessarily to be aligned with the rules of international law. Still, potentials exist for differentiation of national law from the international legal rules, especially in the case of national security or other similar condition. Moreover, the culture and the ethics of certain countries have increased power in influencing the content and the scope of national legal system. This phenomenon is more intensive in countries where culture has been considered as indispensable part of law, such as in the case of Islamic countries. Current paper presents the justice system of UAE, an Arab country with a significant economic power. The efforts of UAE’s government to develop the country’s economic and social framework are highly supported by the national legal system, which is appropriately aligned with the rules of Islamic law. The structure and the elements of UAE’s justice system indicate a strong dependency on culture. At the same time, the influence of the particular justice system by similar systems of the West cannot be ignored. Aly Khedr and Bassam (2010) note that the influences of Western legislation on the UAE’s justice system are clear. Moreover, the key legislative text that has affected UAE’s justice system is the Egypt code which was first appeared near the end of the 19th century (Aly Khedr and Bassam 2010). Also, the adoption of the Civil law by UAE denotes the willingness of the country’s governments to establish a long term relationship between UAE’s justice system and the French law, which has been the basis of the Civil law (Aly Khedr and Bassam 2010). Still, the uniqueness of UAE’s justice system, as analyzed below, cannot be doubted. A potential update of the specific justice system, especially in regard to the trade and commerce would be possibly required in the long term so that the country is able to face the radical changes that are currently in progress in the global market. History – Hierarchy of laws The first appearance of UAE’s justice system can be related to the country’s first appearance in the international community, around in 1971 (Abu Dhabi e-government 2012). It was then that the first rules of law for regulating the country’s various issues were established (Abu Dhabi e-government 2012). At that period, the development of the country’s legal system was based on laws of two different types: a) the federal laws and b) the laws issued by Decrees (Abu Dhabi e-government 2012). The laws of the first category were first introduced by the Cabinet and were then brought before the Federal National Council in order to be verified, as legislative texts. Up to that level, a legislative text would remain a bill; for becoming a law, a bill should be then brought to the country’s President who has the power to bring the bill to the Federal Supreme Court for ratification (Abu Dhabi e-government 2012). This is the common legislative process as applied in UAE since the country’s first establishment. In addition, there is the option of laws that are promoted as decrees (Abu Dhabi e-government 2012). These laws can be promoted only in cases of emergency when critical issues need to be regulated. These laws can be promoted by the country’s President, in cooperation with the Cabinet (Abu Dhabi e-government 2012). At lower level, laws can be promoted for regulating issues at the level of emirates, i.e. at not at federal level (Abu Dhabi e-government 2012). Reference should be made here to the Cabinet decisions which are placed, in terms of their power, between the laws brought by decree and the common laws (Abu Dhabi e-government 2012). This means that the decisions of Cabinet are of increased power compared to the laws of Emirates, a fact that it is crucial any time that a conflict appears between the rules including in a Cabinet decision and those included in a law established by one of the Emirates. The process of laws’ issuance in UAE is further explained below, with reference to the relevant articles of the country’s Constitution. The Constitution of UAE, which first appeared in 1971, in its primary form, has included a series of rules that aimed to address certain basic issues of UAE, as a country just established (Aly Khedr and Bassam 2010). In other words, the country’s Constitution was not introduced as a permanent legislative text, but finally it turned to be such (Aly Khedr and Bassam 2010). The Constitution of UAE includes the basic rules of the country’s operation, including the rules related to fundamental freedoms and to the powers of authorities at federal level (Aly Khedr and Bassam 2010). As noted in the article 144, the amendment of the Constitution can be promoted and verified only by the Federal Supreme court (Aly Khedr and Bassam 2010). In addition, the country’s Constitution defines the terms of independency of the country’s legislative bodies from the judiciary (Aly Khedr and Bassam 2010). The way that laws are issued in UAE is clearly described in article 5 of the Constitution. According to the above article, the seven Emirates which are part of the UAE constitute the Federal National Council (FNC) (Aly Khedr and Bassam 2010). This Council has the power to review the laws that are brought before it and to suggest amendments, if necessary (Aly Khedr and Bassam 2010). The above Council cannot suggest new laws (Aly Khedr and Bassam 2010). Instead, the laws are initially developed by the Council of Ministers (Aly Khedr and Bassam 2010); at the next level, these legislative texts are brought before the FNC, as discussed above. Then, these texts, not still laws, need to be signed by the President who has the power to promote these texts to the Supreme Council; the Council ratifies the texts so that the latter become laws (Aly Khedr and Bassam 2010). The ratified laws produce their results since their publication in the Official Gazette, a term clearly stated in the article 111 in regard to the validity of laws (Aly Khedr and Bassam 2010). The power of the Supreme Council to ratify laws has been secured through the government of UAE. The above power is unique, at the level that it is recognized only to the Supreme Council and not to other bodies operating in the Justice sector of UAE. It should be made clear that the uniqueness of the Supreme Council, as a legislative body, refers only to Federal laws. Common laws can be also promoted locally, at the level of Emirates, especially in regard to issues that are related solely to local issues (Gulf Law 2011). Apart from the process of laws’ issuance, the Constitution of UAE explains the mechanisms and the schemes on which the Federal Authority of the country is based (Info-Prod Research 1999). It should be noted here that the country’s Constitution, as currently applied, was finalized, as all of its aspects and rules, by 1996 (Info-Prod Research 1999). It was then that the Federal National Council .finally approved the Constitution after a series of alterations and additions (Info-Prod Research 1999). According to the above Constitution, the Federal Authority in UAE is promoted by the following instruments: a) the Supreme Council of the Federation, which has legislative and administrative powers, such as the ratification of laws or the choice of individuals who will enter a critical position in the country’s public sector (Info-Prod Research 1999); b) the President; the election of Vice President is also decided at federal level, a fact indicated the radical increase of the power of Federal authorities at national level (Info-Prod Research 1999). Indeed, it has been proved that these individuals, i.e. the President and the Vice President, are actually members of the Supreme Council and are appointed by the Council to the particular positions for handling a variety of federal issues (Info-Prod Research 1999); c) the Council of Ministers (Info-Prod Research 1999); d) the National Council at Federal level (Info-Prod Research 1999) and e) the Federal judiciary (Info-Prod Research 1999). As a set of legal rules and principles, the justice system of UAE has been characterized as quite complicated and difficult to be fully understood mostly because of the following reasons: a) the hierarchy and the distinction of courts are often not clear; it is possible for problems to appear when trying to evaluate the role of each court in the UAE’s justice system (Aly Khedr and Bassam 2010); b) the legal principles and legal language incorporated in the UAE’s legal system are common with those applied in Western countries. Structure The justice system of UAE can be characterized as unique, compared to the similar systems of other Arab countries. As noted in the e-government portal developed by the government of Abu Dhabi, the key differentiation of UAE’s justice system from the legal systems of the neighbouring countries is the following one: the specific system is divided into two, major parts that are characterized as the judiciary developed at federal level and the judiciary developed locally (Abu Dhabi e-government 2012). It is also explained that the Constitution of UAE clearly defines, in the articles from 94 up to 109, the terms under which these two parts of the system interact (Abu Dhabi e-government 2012). In any case, it should be mentioned that the Constitution of UAE just sets the overall rules of the relationship between the federal and the local judiciary (Abu Dhabi e-government 2012). The details of this relationship can be set through the decisions of the local Courts, under the terms that the rules of the country’s Constitution are respected (Abu Dhabi e-government 2012). An important provision of the UAE constitution is the following one: the specific Constitution recognizes the power of the country’s emirates to choose the judicial system they prefer in regard to the settlement of disputes brought before its Courts (Abu Dhabi e-government 2012). More specifically, each emirate can choose whether it prefer the federal system or the local system, i.e. whether its cases will be brought before the Federal courts or the local courts (Abu Dhabi e-government 2012). In a report published recently, in July 2011, reference is made to the uniqueness of the justice system of UAE in terms of effectiveness (Broomhall 2011). Particular emphasis is given on the positioning of the country’s justice system in the Rule of Law Index 2011 (Broomhall 2011). It is noted that UAE’s justice system ranked as 13th in the above Index (Broomhall 2011), a fact that indicates the system’s effectiveness compared to other similar systems worldwide. The key criteria for deciding the position of a country in terms of the performance of its justice system have been the following ones, as indicatively mentioned: a) the structure and the performance of public institutions and b) the level at which public officers confront corruption (Broomhall 2011). The characteristics of the UAE’s justice system are analytically presented in a report produced by the Consulate General of the United States in 2005. According to the above report, the justice system of UAE has all the characteristics of a pure Civil Law legal system (Consulate General of the United States 2005). Also, it seems that the influences of the particular system by other legal systems are significant (Consulate General of the United States 2005). In fact, if the rules of the UAE’s justice system are reviewed carefully, the influences from Western law, such as the Roman and the French law (Consulate General of the United States 2005) are clear. At the same time, emphasis is given on the following fact: Two of the country’s Emirates, Abu Dhabi and Ras Al Khaimah have retained their own court systems and have not joined the Federal system, as the other Emirates of UAE (Consulate General of the United States 2005). As a result, the courts of the above two Emirates are not under the control of the Federal Supreme Court, a fact that can set the integrity of UAE’s justice system in risk (Consulate General of the United States 2005). Key principles and rights Before reviewing the various aspects of UAE’s justice system, particular reference should be made to the principles that govern the above system. According to the country’s Constitution (article 25): equality among citizens should be secured across the state while discrimination cannot be accepted (Al-Abed and Peter 153). Another important rule of UAE’s Constitution is the following one: everyone who is accused for violating the law cannot be considered as guilty before the Court hears the case and rule accordingly (article 28 of Constitution, Al-Abed and Peter 153). An important rule related to the Country’s courts is the following one: if a case local courts can hear all cases that have not been brought before the Federal courts ‘(Al-Abed and Peter 153). In the context of the UAE’s constitution, human rights are effectively protected even if opposite claims often appear. Reference can be made, for example, to a report published by the State Department in 2009 (Katzman 5). According to this report, religious freedom in UAE is not still fully secured (Katzman 5). There are certain Christian churches, which are allowed to operate normally (Katzman 5). Still, other religions are not actually supported; for example, there is not Jewish synagogue across UAE (Katzman 5). In regard to women’s rights, UAE has made a significant progress. In fact, in UAE the participation of women in the workplace is highly promoted, a practice that it is not accepted, yet, in other Muslim countries (Katzman 5). Many women work in positions that are paid highly, such as banking (Katzman 5). Also, there are about four women in government, a fact that shows the willingness of the country’s government to promote equality and to eliminate discriminations (Katzman 5). As from November 2008, there are ten women working as prosecutors in Dubai (Katzman 5). One of the key characteristics of UAE’s justice is, as already discussed, its dependency on Islamic law. The involvement of the Islamic law in the justice system of UAE can be identified in many aspects of the particular system. Reference could be made, as an example to the Justice, Islamic Affairs and Awqaf Ministry (Mostyn 57) that aims to ensure the alignment of critical economic and social activities with the Sharia law (Mostyn 57). An indication of the above Ministry’s powers is its involvement in trade marks, a concept applied in commercial law (Mostyn 57). Courts The justice system of UAE’ is based on the Civil Law (Price and Essam 11). In this context, the decisions of the country’s courts cannot be considered as of decisive power, as in the case of the Common law (Price and Essam 11). Still, the decisions of the Court of Cassation, as described below, are taken into consideration when having to review critical legal issues (Price and Essam 11). In other words, the decisions of the above Court have increased power in influencing the judges of Courts at the lower levels when having to decide on legal disputes that are quite complex or difficult to be evaluated (Price and Essam 11). In practice, the judges of Courts at lower levels avoid developing decisions that are opposed to a decision of the Court of Cassation (Price and Essam 11). This fact leads to the assumption that the decisions of the particular court are considered as precedent in regard to the legal issues related to them. It should be noted that the authority that monitors the courts of UAE is the Ministry of Justice (International Monetary Fund 20). The above authority has also the responsibility for arranging and monitoring the training of all individuals working in the specific sectors, including the judges and the attorneys (International Monetary Fund 20). Courts in UAE are categorized as follows: a) Civil courts, b) Criminal courts and c) Sharia courts (Price and Essam 9). The powers of each of these courts are related to specific disputes/ cases. For example, Civil Courts can hear only cases related to civil and commercial cases, with no limitation of the nature of the case (Price and Essam 9); common cases that are brought before the Civil Courts are those related to suits related to private interests and those related to commercial law disputes (Price and Essam 9). It should be noted that Civil Courts in UAE are not divided into categories depending on the nature of the cases handled (Price and Essam 9). The Labor Office is a body that has been established for resolving labor disputes through negotiations (Price and Essam 10). If no sign of a settlement exists, then the case need to be brought before the Civil Courts (Price and Essam 10). The Criminal Courts hear cases related to the commitment of a crime (Price and Essam 9). As for the Sharia Courts, these have power to hear cases that refer to family issues, including divorce and disputes related to the custody of children (Price and Essam 9). However, the power of Sharia Federal Courts to hear criminal cases is limited only to specific crimes, such as sexual crimes and crimes related to the property (Price and Essam 9). In regard specifically to the Civil Courts, the right of the parties to promote all their claims is established through the extensive use of documents for supporting the relevant arguments (Price and Essam 9). The use of other means for proving the accuracy and the credibility of arguments is not opposed by the UAE’s laws; indeed, both parties in a civil case have the right to ask for witnesses in regard to one or more aspects of their claims (Price and Essam 9). In addition each of the parties of a civil case has the right to bring the case before the upper court, the Court of Appeal, in case that the decision of the Civil Court that heard the case at the first level has not been satisfactory (Price and Essam 10). In this case, particular attention should be paid at the time availability for using such potential: the time limit for appealing a case is 30 days since the decision of the Civil Court has been published (Price and Essam 10). If the above time period is passed without an appeal to be submitted, then the relevant right is lost (Price and Essam 10). If the decision of the Court of Appeal is again, no satisfactory, for one of the parties, then there is the option of the Supreme Court of Cassation (Price and Essam 10). The above court, in Abu Dhabi, has the power to rule at the last level, i.e. to develop a decision that it is necessarily respected by the parties. It should be noted that at this level, the parties have not the right to bring new documents for supporting their claims (Price and Essam 10). In fact, at this level, the Courts do not have the right to review the credibility of the claims of the parties but only to check whether the Court of Appeal has violated any rule of law related to the hearing of the case, as a process (Price and Essam 10). Moreover, the Court of Cassation has the right to order the re-examination of a case by the Court of Appeal (Price and Essam 11), highlighting the legal rules that were violated when the case was discussed before the Court of Appeal (Price and Essam 11). From this point of view, it could be stated that in UAE, as also in most countries worldwide, the claims of the parties in a civil case can be discussed only up to the Court of Appeal (Price and Essam 10). Then, the potentials of the Court of Cassation to change the ruling of the Court of Appeal are extremely limited, in the context described above. As of the process for a criminal case to proceed, so that the perpetrator is punished, this can be described as follows: a complaint needs to be submitted to the local police station, preferably the one nearest to the place where the offence was committed (Consulate General of the United States 2005). Then, the police officers can search for further evidence, informing the prosecutor, so that the case is effectively supported (Consulate General of the United States 2005). At the next level, the case is sent to the prosecutor who has a time-period of 14 days in which he has either to proceed with charges or to decide that the case does not meet the requirements in order to be heard by the courts (Consulate General of the United States 2005). The deadline of the 14 days for reviewing a criminal case starts the day that the prosecutor received the case from the police (Consulate General of the United States 2005). In case that the prosecutor decides to press charges then he pass the case to the appropriate Court, either a criminal court or a Sharia Court, that it is used along the criminal courts in all Emirates (Consulate General of the United States 2005). It should be noted that Sharia courts cannot be used in case of foreigners who are not Muslims (Consulate General of the United States 2005). As of the right of any individual to be represented by a lawyer, certain issues should be highlighted. In order for an advocate to have the right to appear before UAE’s Courts it is necessary that he meets two requirements: a) the citizenship of UAE and b) he has a valid license for practicing the particular profession (Price and Essam 9). The inability of foreigners, who have a valid license of attorney, to appear as attorneys before the UAE’s courts, is based on the law No.21 of 1991 (Info-Prod Research 1999), a law which was not used in the past but which has recently started to be used across UAE. In the context of this law, expatriate lawyers cannot support cases before the UAE courts (Info-Prod Research 1999) and they can only offer legal consultation (Info-Prod Research 1999). In any case, in order for an attorney to have the right to appear before the court, supporting a case, it is necessary that he has graduated from a college that support Sharia law (Gulf Law 2011). This means that he needs to have an Honours Degree in Law acquired in a college where Sharia law has been also taught; a degree from a college of law in general is not sufficient, even if the relevant college is popular in the international community. At this point it should be made clear that there are certain crimes in UAE that have a unique jurisdiction; reference can be made for example to the cases related to terrorist financing. These cases can be heard only before the Federal Supreme Court (International Monetary Fund 20). Moreover, crimes related to the economics, such as money laundering can be brought before the Courts of Emirates and not necessarily before the Federal Supreme Court (International Monetary Fund 20). On the other hand, Peck (1986) notes that the full development of the Federal court system in UAE has significantly delayed. For quite a long time, and before the establishment of the above system, religious judges were appointed to the judiciary of UAE (Peck 60). Today, the dependency of the country’s legal system on Islamic law is still strong, a fact that it is reflected in the use of Sharia courts for hearing cases that refer to all disputes related to family law but also for certain cases related to criminal law (Peck 60). It should be noted that Emirates have kept their Sharia courts which can resolve a series of local issues (Info-Prod Research 1999). This fact indicates the willingness of Emirates’ political authorities to support the promotion of Islamic law across their territories, without rejecting the potential use of legislative practices and rules, similar to those of the Western courts. Also, in certain Emirates, such as Abu Dhabi, the potential of Sharia courts to hear cases is significantly expanded, including not just family cases or criminal cases, but also labor and commercial disputes (Gulf Law 2011). Judges A key characteristic of UAE’s judicial system is the following one: judges across the country’s courts are not the country’s citizens (Price and Essam 9). In fact, these individuals have been hired in the particular positions in the context of the relevant agreement between UAE and other Arab countries, such as Egypt and Syria (Price and Essam 9). The above fact leads to the assumption that the credibility of UAE’s courts is high, since the objectivity of judges is secured. Particular attention should be paid on the case of federal judges. These judges can be appointed only by the Supreme Council (Price and Essam 9). In UAE, like in other countries also, judiciary is closely related to the politics. This fact is reflected in the power of the Minister of Justice of UAE to send his recommendations in regard to Federal judges to the Supreme Council (Price and Essam 9). These suggestions are taken into consideration by the Supreme Council in order to proceed to the appointment of candidates to their position, as federal judges. However, after their appointment, the federal judges become independent from the political authorities (Price and Essam 9). For judges at other levels of the judiciary, the independency from government is a rule (Price and Essam 9). In other words, judges in UAE can be controlled only by law, a fact that further increases the credibility of judiciary in the particular country. It should be noted that the potentials of judges to respond to the demands of their position are periodically checked (Price and Essam 9). If a change is found to violate the rules regulating its powers or the law in general, then he can be removed from his position (Price and Essam 9). A similar practice is used when a judge is found to be incompetent in performing the tasks assigned to him (Price and Essam 9). Police and criminal offences In UAE the monitoring of the application of laws related to public security is a task delegated to the Ministry of Interior (Federal Research Division 141). The Minister of Interior has the overall responsibility for securing order and public safety across the country. The Minister is supported to the demands of his role by the police (Federal Research Division 141). In fact, police officers in UAE have the power to intervene for protecting the safety of people and to develop investigations for identifying the perpetrator of a criminal offense (Federal Research Division 141). Another body promoting security in UAE is the National Guard, a body that has a particular mission: to protect the country’s borders and ‘certain areas of high strategic importance, such as the oil fields’ (Federal Research Division 141). Recent developments According to the above, the structure and rules of the UAE’s justice system are quite clear and are developed in the context of discussions developed at Federal level. This means that the justice system of UAE can be characterized, primarily, as Federal despite the involvement of local courts/ Sharia courts in the resolution of disputes appearing at the level of Emirates. Also, the justice system of UAE is under continuous change and update. News laws are introduced and amendments on existing laws are promoted so that the competitiveness of UAE in the international community to be secured. Reference can be made, as an example, to the Federal Law Company Law No. (8) of 1984 (Gulf Law 2011) that have introduced important changes in regard to company law in UAE. Conclusion In terms of its structure and rules, the justice system of UAE can be characterized as quite effective. The independency of judiciary seems to be the most important advantage of the particular system. Still, other the value of other system’s characteristics, such as the high value of ethics, as rules influencing the daily behaviour of individuals but also their obligations towards the law, cannot be ignored. Up to now, the justice system of UAE has not been negatively criticized, at least according to the literature reviewed for developing this paper. Rather, researchers seem to recognize the system’s stability and independency. According to Al-Abed and Peter (2001) the structure and the rules of UAE’s justice system reflects an intensive effort for approaching the Western justice systems; the specific phenomenon is clearer in judiciary and the rules that define the appointment and the powers of judges at various levels of the hierarchy (Al-Abed and Peter 153). At the same time, an effort to keep the system aligned with the rules of the Islamic law can be also identified (Al-Abed and Peter 153). As highlighted in the literature, the system’s effectiveness has been mostly secured because of the rules of the Islamic law that increase the power of the law to control all aspects of public and private life across a country. At the same time, the practices of the country’s government in regard to the establishment and promotion of legal rules can be also considered as vital for the system’s success. In UAE, as in all countries based on Islamic law, the justice system primarily promotes the local culture and ethics; the UAE’s justice system has an important advantage: it has effectively incorporated the rules of Western countries that regulate the activities related to the international law but without the rules of the Islamic law to be affected. (words 4929) Works Cited Al-Abed, Ibrahim and Peter, Hellyer. United Arab Emirates: A New Perspective. 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