Sources On Arab Judiciaries
United Arab Emirates
Constitutional Provisions On The Judiciary
Structure Of Court System
Personal Status Issues
Appointing/ Assigning/ Evaluation Of Judges
Administration And Relationship With The Ministry Of Justice
Specialized Courts And Their Jurisdictions
Arab Judicial Structures
A Study Presented To The United Nations Development Program
by Nathan J. Brown
United Arab Emirates
The United Arab Emirates remains unusual for the Arab world because of its federal structure. The country was formed out by its seven member emirates in 1971, but most judicial structures remained initially at the emirate rather than the federal level. In 1973 a Supreme Federal Court was created and in 1978 some judicial matters were transferred from member emirates to that Court. In 1983 a comprehensive law governing the federal judiciary was issued, creating a full federal judicial system, though the member emirates retain significant and varying degrees of judicial autonomy. Laid on top of this federal structure is another division between civil and shari�a judiciary. This gives the UAE a fairly complex judicial structure.
- Constitutional provisions for the judiciary
The constitution of the United Arab Emirates dates back to independence in 1971; it was made permanent in 1996.
Article 94 Justice is the basis of governance. Judges shall be independent and shall be subordinate to no authority but the law and their own consciences in the performance of their duties.
Article 95 The Union shall have a Federal Supreme Court and federal courts of first instance as described hereafter.
Article 96 The Federal Supreme court shall consist of a president and no more than five judges who shall be appointed by decree issued by the federal president with the approval of the Supreme Council. Law shall prescribe the number of departments in the court, their organization and their procedures, conditions of service, and retirement for its members and the prerequisites and qualifications required of them.
Article 97 The president and judges of the Supreme Court shall not be dismissed while they administered justice. Their administration shall not be terminated except for the following reasons: (1) death; (2) resignation; (3) completion of term of contract for individual on contractor completion of term of seconding; (4) reaching of retirement age; (5) permanent incapacity to carry the burdens of their duties because of ill health; (6) disciplinary discharge based on reasons and proceedings stipulated by law; or (7) appointment to other offices, with their agreement.
Article 98 The president and judges of the Federal Supreme Court shall, immediately before taking up duties, swear an oath before the federal president and in the presence of the federal minister of justice, that they will render judgement justly and without fear or favor and that they will be faithful to the constitution and the laws of the Union.
Article 99 The Federal Supreme Court shall be competent to render judgment in the following matters: (1) Miscellaneous disputes among member emirates in the Union, or between any one emirate or more and the government of the Union, whenever such disputes are remitted to the Court on the basis of a request form any one of the interested parties; (2) Examination of the constitutional legality of Union laws, if they are challenged by one or more of the emirates on the grounds of violating the constitution of the Union; examination of the constitutional legality of legislation promulgated by one of the emirates, if it is challenged by one of the Union authorities on the grounds of violation of the constitution of the Union or of Union laws; (3) Examination of he constitutional legality of laws, legislation, and regulations generally, if such a request is remitted to it by any state court during a case under consideration before it. That court shall be bound to accept the ruling of the Federal Supreme Court in the case; (4) Interpretation of the provisions of the constitution, when so requested by any authority of the union or by the government of any emirate. Any such interpretation shall e considered binding on all; (5) Interrogation of ministers and senior officials of the union appointed by decree concerning their actions taken in the conduct of official duties on the basis of a request by the Supreme Council and in accordance with the relevant law; (6) Crimes directly affecting the interests of the Union, such as crimes relating to internal or external security, forgery of the official records or seals of any of the Union authorities, and counterfeiting of currency; (7) Conflict of jurisdiction between the Union judicial authorities and the local judicial authorities in the emirates; (8) Conflict of jurisdiction between the judicial authority in one emirate and the judicial authority in another, and the classification of the principles relating thereto in a federal law; and (9) Any other jurisdiction stipulated in this constitution, or which may be assigned by a federal law.
Article 100 The Federal Supreme court shall convene in the capital of the Union. It may convene when necessary on an exceptional basis in the capital of any one of the emirates.
Article 101 The judgments of the Federal Supreme Court shall be final and binding upon all. If the Court, in rendering judgment on the constitutional legality of laws, legislation, and regulations, rules that federal legislation is inconsistent with the constitution of the Union, or that local legislation or regulations under consideration contain provisions which are inconsistent with the federal constitution or a federal law, the authority concerned in the union or the emirate shall be obliged to take the necessary steps to remove or rectify the constitutional inconsistency.
Article 102 The Union shall have one or more federal courts of first instance which shall sit in the permanent federal capital or in the capitals of some of the emirates in order to exercise judicial powers within the scope of their jurisdiction in the following cases: (1) Civil, commercial, and administrative disputes between the union and individuals whether the union is plaintiff or defendant; (2) crimes committed within the boundaries of the permanent federal capital, except such matters as are reserved for the Federal Supreme Court under Article 99 of the constitution; (3) Personal status actions, civil actions, commercial actions, and other actions between individuals which arise in the federal capital.
Article 103 All matters connected with the federal courts of first instance in respect to their organization, formation, departments, local jurisdiction, procedures to be followed before the, oaths to be sworn by their judges, conditions of service for their judges, and the means of appealing against their judgments shall be regulated by law. The law may stipulate that appeals against the judgments of these courts shall be heard before one of the departments of the Federal Supreme court, in the circumstances and manner prescribed.
Article 104 The local judicial authorities in each emirate shall have jurisdiction in all judicial matters not assigned to the federal judiciary in accordance with this constitution.
Article 105 All or part of the jurisdiction assigned to the local judicial authorities in accordance with the preceding article may be transferred y a federal law issued at the request of the emirate concerned to the federal courts of first instance. Circumstances in which appeals against judgments by the local judicial authorities in penal, civil, commercial, and other cases may be made before the federal courts shall be defined in a federal law, provided that the judgment of the federal courts in such appeals is final.
Article 106 The Union shall have a public prosecutor who shall be apointed by federal decree issued with the approval of the cabinet. He shall be assisted by a number of members of the public prosecutor's office. Matters relating to the members of the federal public prosecutor's office shall be prescribed buy law with respect to the method of appointment, grades, promotion, retirement, and the qualifications required of them. The federal law of criminal procedure and courts shall prescribe the jurisdiction of this body and its procedures and the powers of its assistants over the police and the public security services.
Other provisions of the UAE constitution guarantee the right to litigation, non-discrimination among citizens, reliance on the Islamic shari�a as a source of legislation, and equality before the law.
- Structure of court system
The UAE has two networks of civil court systems: the federal system and the local systems. While most (but not all) emirates have ceded civil jurisdiction from the local to the federal level, a network of shari�a courts still functions in each emirate.
The federal court system consists of three levels: primary courts, appeals courts, and the Supreme Court. Unusually, this system was established on a framework proposed by the judiciary itself. The provisions of the UAE constitution did not make clear how the federal system could establish a structure of federal courts beyond the Federal Supreme Court. The Ministry of Justice therefore sought guidance from the Federal Supreme Court on how the constitution was to be interpreted; the resulting interpretation helped form the basis for the three-tier federal system.
The local systems are far older, dating back to the pre-independence era and sometimes well before. Local systems generally consisted of two kinds of courts: shari�a courts and rulers� courts. Shari�a courts generally operate on the presumption that they have general jurisdiction in a manner similar to the Saudi courts. The courts of the rulers of the member emirates originated out of the view that settling disputes was an integral part of governing. These courts formalized to varying degrees, some staffed with professional judges and operating on the basis of codified law.
With the creation of the federal system, all but two emirates (Dubai and Ras al-Khayma) opted to cede their jurisdiction over civil, criminal, and administrative cases. Shari�a courts continue to operate however, throughout the UAE.
- Personal status issues
Despite the absence of any codification of personal status issues, there is little dispute that personal status cases are to be dealt with in accordance with the Islamic shari�a and the shari�a courts therefore remain the dominant court in personal status matters.
Throughout the UAE (with the partial exception of Abu Dhabi) the relationship between the shari�a courts and the civil courts (local and federal) has not been clarified in legislative texts. This can lead to some overlap of jurisdiction, though civil courts accept the jurisdiction of shari�a courts in personal status cases.
In addition, civil judges are enjoined to rely on the shari�a in the absence of clear legislative texts. Further, the law of the Federal Judicial Authority places the rules of the shari�a among the sources of authority over judges. This lessens the potential for conflict between the two judicial systems.
- Prosecution system
The UAE operates according to a niyaba system in which investigation and prosecution of crimes is a judicial function. The niyaba is headed by the Attorney General and overseen by the Ministry of Justice. Qualifications for a niyaba position are similar to those for a judgeship. As with judges, the Attorney General and members of the niyaba are appointed by the UAE president after nomination by the minister of justice. The two emirates retaining jurisdiction over local criminal cases have their own prosecution systems.
- Appointing/assigning/evaluation of judges
The formation of the Federal Supreme Court is provided in the constitution: it has a president and no more than five members; they are all appointed by the UAE president with the approval of the Supreme Federal Council.
Other federal judges are appointed by the UAE president after nomination by the minister of justice. Judges who are citizens of the UAE may not be dismissed before death or retirement unless it is proven that they cannot carry out their duties for reasons of health or disciplined in accordance with legal procedures. Those legal procedures allow the minister of justice to bring charges, but the complaint is heard by an exclusively judicial body which renders judgment. Judges who are citizens of other Arab countries have contracts for a specified number of years, subject to renewal.
A Federal Supreme Judicial Council was formed in the 1983 law governing the judiciary. It is headed by the minister of justice, the deputy minister, the attorney-general, the director of the office of judicial inspection, and three senior judges. It is consulted in matters related to assignments and promotion.
- Administration and Relationship with Ministry of Justice
The Ministry of Justice retains oversight of virtually all aspects of court administration. The Federal Supreme Judicial Council has an advisory role, and the judges of the Federal Supreme Court form a general assembly to administer internal affairs.
The Federal Ministry of Justice was founded in 1973, two years after the creation of the United Arab Emirates. Unlike most Arab governments, the portfolio for justice is combined with Islamic Affairs and Awqaf [religious endowments].
The Ministry of Justice is thus more directly involved in court affairs than is often the case in the Arab world. This is partly due to the small size of the UAE and the fact that the federal judiciary remains fairly new. Judges are consulted through a variety of structures and they do exercise some supervisory functions over non-judicial personnel attached to the courts.
- Specialized courts
Many of the matters handled by specialized courts in other Arab countries fall within the jurisdiction of the regular civil judiciary in the UAE. For instance, administrative disputes are addressed by a section of the regular civil judiciary rather than by a separate set of administrative courts. Similarly, the UAE does not have a specialized constitutional court, but the Federal Supreme Court is specifically authorized by the constitution to interpret the constitution. It can thus review the constitutionality of federal legislation as well as the legislation of any member emirate.
- Judicial education
The UAE has developed its own legal education system but is not yet able to train sufficient judges to staff all of its courts. Thus, many UAE judges are borrowed from other Arab countries. Even many of the native UAE judges have studied overseas.