In December 2nd 1971, United Arab Emirates was declared as a united, independent, and sovereign state encompassing of seven emirates, i.e. Abu Dhabi, Dubai, Sharjah, Ras Al Khaimah, Ajman, Um Al Quwain and if Fujairah. The legal system in the UAE is based on the constitution of UAE; this system is dual in nature as it has local and federal courts with a Supreme Court based at Abu Dhabi.
Unlike Britain and other countries where previous court judgments are regularly used as legal precedents, the UAE does not depend that much on precedents, although sometimes the judgments of higher courts can be applied by lower courts in similar cases. Where legislative provisions do not cover a specific issue, the court will make a decision in accordance with Sharia law. Islamic jurisprudence is widely used in the construction and interpretation of the UAE. The primary source of law was Islam along with the unwritten social conventions or “Urf". Sharia judges specialized in family disputes whereas customary law judges handled criminal assaults and personal disputes.
The UAE’s Constitution, which came into effect on 2nd December 1971 dedicates all its fifth Section for the Union legal system. Article 94 of the Constitution stipulates that “justice is the basis of authority.
The UAE is governed in accordance with the Constitution of the United Arab Emirates. The Provisional Constitution was signed in the 18th of July 1971. Abu Dhabi, Dubai, Sharjah, Ajman, Um Al Quwain and Fujairah were the initial signatories and Ras Al Khaimah joined the Federation on the 10th of February 1972. The Provisional Constitution, with some minor amendments, was made final in terms of Constitutional Amendment Law No. l of 1996 (the “Constitution”) and signed by the President of the UAE on the 2nd of September 1996. Islam is the official religion and Arabic is the official language of the UAE.
Since its establishment on the 2nd of December 1971, the UAE has set a temporary constitution, which rapidly has turned into a permanent one. This happened after the federal state of the UAE has established its stability achieved success, committed to a moderate policy, and made cultural changes and giant accomplishments on the local, regional and international levels and further progress for the people of this federation. By so doing, this would be one of the most successful experiences of unification in the modern history. This constitution explains the main rules of the political and constitutional organization of the state. In fact, it has demonstrated the main purpose of the establishment of the federation, its objectives and components on the local and regional levels. It has also elaborated on the major social and economic pillars of the federation and stressed public rights, responsibilities and freedoms. Moreover, it has highlighted federal authorities, organized issuance of federal legislation and the competent authorities as well. Above all, it has also dealt with financial affairs of the federation, armed and security forces provisions and legislative, executive and international jurisdictions between the federation and member emirates. The Constitutional provides that each Emirate may have a legislative body as well as a cabinet of minister independent from that of the Federal Government. Although none of the Emirates in the UAE has a cabinet of ministers, Abu Dhabi, Dubai and Sharjah have an Executive Council. Each individual Emirate administers its local affairs through local government departments headed by a director-general or a chairman. The supreme authority in each Emirate is the Ruler who is empowered to carry out the executive authority as well as the legislative authority within that Emirate. Laws are normally enacted in an Emirate by decree from the Ruler.
The Federal Government has exclusive jurisdiction over matters such as foreign affairs, defense, health and education. The individual Emirates has exclusive jurisdiction over other matters of more regional concern unless they have otherwise surrendered such powers to the Federal Government.
All the Emirates of the UAE contribute to the UAE Federal Budget though each Emirate has its own budget. Normally, the Federal Government operates and contributes towards the general services and utilities of the UAE as a whole whereas the local government in each individual Emirate is responsible for that Emirate. The Constitution provides that the natural resources and wealth of each Emirate shall be the property of that Emirate
Civil Law System
The UAE legal system is based on the civil law system and as such the primary source of law is a statutory code. The UAE legal system has been influenced to a considerable extent by the Egyptian legal system which has its source in French and Roman four. The law in the UAE has also naturally been influenced by Islamic Let codified in the Sharia and embodied in the UAE civil and commercial law.
The civil law system not only applies to the codification of laws in the UAE but also to the practice and procedure of the judicial system. Judges, for instance, do not normally hear oral arguments and precedents are not judicially binding, although they are used as persuasive arguments before the courts. In addition, because of the nature of Dubai as a commercial center and because of the presence of international law firms with “common law” roots, many contracts that have been drafted in the UAE appear to have been influenced by common law principles.
This has created difficulties in the application of the law to these contracts by the courts of the UAE since the judicial authority does not recognize some of the principles or the common law system.
Judges of the Federal Courts of the UAE are recommended by the Ministry of Justice and appointed by a decree of the Supreme Council. All Judges are independent from the Ministry of Justice and are subject only to the law. Local Judges such as those in Dubai are similarly recommended, however they are appointed by the Ruler’s decree. Judges may not be removed or their employment terminated, except if they have resigned, or it is proved that they are incompetent, or where their secondment has come to an end.
The UAE courts adjudicate civil matters in accordance with the Federal Law No. 11 of 1992 issuing the “Civil Procedure Law”. The courts adjudicate criminal matters in accordance with the Federal Law No. 35 of 1992 issuing the law of Criminal Procedure and other laws dealing with specific crimes such as those dealt with in telecommunication, trademark and copyright laws.
The courts in the UAE are constitutionally divided into the Federal court which is supervised by the Federal Ministry of Justice; and the local court which currently only exists in the Emirates of Dubai' and Ras Al Khaimah and which are supervised by the Judicial Authority in those Emirates. Both the Federal and local courts are divided into three main courts, the civil courts, the criminal courts and the Sharia court (Islamic courts).
The civil courts in the UAE deal with civil matters of any nature of any nature including private suits, debt recovery, banking, maritime, bankruptcy, intellectual property, company and insurance matters.
Criminal actions in the UAE commence with the filing of a complaint with the local police in the jurisdiction where the offense was committed. During the investigation, the police may take the statement of any parties involved. The matter is thereafter usually referred by the local police to the Prosecutor for advice prior to registering the claims Criminal courts in the UAE Penal Code, Federal Law No. 3 of 1987 and the UAE Criminal Law of Procedure, Federal Law No. 35 of 1992 together with sections contained in other laws that provide for specific crimes.
The Sharia Courts
The Sharia or Islamic courts work alongside the civil and criminal courts in the UAE. The jurisdiction of the Sharia court is defined in certain Emirates but not in the Emirates of Abu Dhabi, Sharjah and Ras Al Khaimah." The Sharia court is the Islamic court in the UAE and is primarily responsible for civil matters in the UAE between Muslims. Non-Muslims will not appear before the Sharia court in any matter. Sharia court has the exclusive jurisdiction to hear certain family matters such as those involving divorce, inheritance, custody, child abuse and guardianship of minors. Sharia cases are heard by one Judge and the courts apply the UAE codified Law. In the absence of any provision in the UAE codified Law, the Islamic principles of Sharia as found in the Islamic Sharia textbooks are applied. The Islamic Schools of Sharia that are applicable in the UAE are the Maliki and the Hambali School. Article 1 of the UAE Civil Code provides that if there are no applicable principles in either the Maliki or Hambali Schools, then the Judge must turn to the Shafi School or Hanafi School.
The Court Of Cassation
The Court of Cassation is the highest court in the UAE and as mentioned, it will only hear matters of law. The Court of Cassation will not only act as an appellate court in respect of the decisions of the lower courts but will also supervise these lower courts and ensure that they are applying and interpreting the law correctly. The Court of Cassation also sets out the principles upon which the lower courts will need to follow and abide.
The UAE has a civil law legal system and therefore the courts do not make law. However, judgments of the Court of Cassation are usually referred to in order to provide guidance on the likely attitude of courts in certain matters and act as a basis for argument before the courts. Very rarely will Judges of the lower courts contradict the legal principles set out by the Court of Cassation when deciding on a particular case.
Judgments of the Court of Cassation are also referred to by lawyers in their pleadings and arguments as a means of persuading the lower courts to rule in their client’s favor. The Court of Cassation is the only authority empowered to interpret the codified law and its application to a particular problem. The Court of Cassation is empowered to overrule or amend any judgment delivered by any lower courts, Only the Supreme Court of Cassation may determine a Federal constitutional matter and those matters set out in the UAE Constitution. Normally, the decisions of the Dubai Court of Cassation and the Supreme Court of Cassation are coherent and are uniform on most matters.
The federal state of the UAE has established its stability, achieved success, committed to a moderate policy, and made cultural and giant accomplishments on the local, regional and international levels and further progress for the people of this federation. It has set an example for the most successful experiences of unification in modem history. In this time of globalization and emerging markets, the UAE economic and cultural growth is underpinned by a legal system, which has developed sufficiently to gain local and international attention.
In the comparatively short period since its establishment, the UAE has made important strides in regulating some of the vital legal aspects of its rapidly expanding economy. One of the main achievements of the federation is to establish a legal system based on the principles and structure which are both logical and understandable.
The legal system of the UAE has evolved over many centuries, like any other legal system of the world and this is adopting to the changing needs of the society with new developments in thinking for a modern age.
Historically the legal system of the UAE is based on Islamic Law (Sharia) and the Sharia Court formed the judicial cornerstone of the country. However, the modernisation of the legal system at the beginning of the twentieth century, led to the establishment of Civil Courts which were generally granted the competence to review civil transactions as well as commercial and other types of disputes. Separate Criminal Court were also established to handle commercial disputes.