News & Insights
The UAE holds the honour of a special status amongst other jurisdictions in the world as it serves as an amazing amalgamation of mixed legal jurisdictions. The UAE Legal Systems stems from the Shariah Law and is branched out through codifications of the UAE Civil Code. Concurrently the English Common Law Jurisdiction is applied in the UAE through the promulgation of the DIFC and the ADGM Courts.
The Hierarchy of the Courts is a distinct topic as well, as the UAE Hierarchy of the Court Level is explained distinctively in the Constitution of the UAE. However, many people often show oblivion to the fact that the UAE is a federation of seven Emirates and where the Amiri Decree precedes all other legislations in terms of the Hierarchy of Courts. Conversely, the highest Order of Law, even above an Appellate Body or an Apex court is the Diwan Amiri or the Ruler’s Court in the UAE.
Unfortunately, many of us forget that the UAE is a Constitutional Federation of seven Emirates, principally governed by the respective Sheikhdoms. Before establishing the UAE in 1971, the sheikhdoms promulgated the laws of their respective Emirate through the directorate of the Ruler’s Court.
This historical tradition maintained law and order in their respective Emirates and provided justice to the victims of a crime, followed by the sole discretion of the Ruler to commence trade and maritime activities, grant trading rights to the Companies and allocation of albeit limited resources were all operating under the directorates of the Ruler’s Court. The fact of the matter implies to any resident who feels justice has not been served in a legal proceeding either through the Courts, Attorneys, Police or Prosecution, and all residents have access to the Ruler’s Court. Let us examine the various ramifications of the Amiri Court in different walks of life.
PARDON IN CRIMINAL CASES
The concept of “Ar-Rahmah” (infinite mercy) is a Quranic injunction and is popularly practised amongst Arabs since the prehistoric times. The UAE is also not an exception to the rule. Before delving into the compassionate laws of the UAE, let us strike a comparison with other Jurisdictions which follow Pardon/Clemency in Criminal Cases. As for the English Common law of the United Kingdom of Britain and Northern Ireland, it was traditionally in the absolute power of the monarch to pardon an individual for a crime, irrespective of the fact that he/she had been convicted, and hence commute any penalty; the power was promulgated through a delegation to both the judiciary and the sovereign’s ministers. This law was known as “The Royal Prerogative of Mercy”. Since the creation of legal rights of appeal, the royal prerogative of mercy is no longer exercised by the person of the sovereign, or by the judiciary, but only by the government. According to the Common Law tradition, the royal prerogative of mercy is one of the historic royal rights of the British monarch, by which the sovereign bestows pardon (colloquially referred as a royal pardon), to convicted persons. The royal prerogative of mercy was initially used to permit the Emperor/empress to withdraw, or provide alternatives to capital punishments; the subsequent of penal transportation to “partes abroade” has been used since at least 1617. All other Common law jurisdictions, including the USA, have enacted Presidential Pardon to prisoners of criminal law. The pardon powers of the President are based on Article Two of the United States Constitution (Section 2, Clause 1), which provides:
“The President … shall have power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”
The Supreme Court of the USA has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesties.
Similarly, in the UAE the Amiri Pardon is the Highest Degree of Patronage given to an accused, where he/she has the right to appeal for clemency to the Amiri Court. Although we would be polite to a fault to evade the effects of a successful court system developed in the country for the past five decades, the matters seldom are appealed at the Amiri Court. Nonetheless, the Pardoning of Prisoners based on humanitarian grounds is a common practice of the Benevolent Emirati Leadership. Every year, especially in Ramadan, President HH Sheikh Khalifa personally pardons innumerable prisoners, who are either sentenced to life in prison or even were penalised with the death penalty. In 2018, 785 prisoners were pardoned by HH. Sheikh Khalifa Bin Zayed Al Nahyan, through the Amiri Court, who is also the Ruler of Abu Dhabi. One of the latest cases of Pardon in a Criminal Case is that of the British Academician Matthew Hedges, who has been freed through the grant of a pardon from the UAE’s President. Hedges, 31, had been in jail since May 2018, serving life imprisonment, as he was accused of spying in the UAE. Although the case was incredibly serious, as the Court of First Instance promulgated:
“The case against Mr Hedges was predicated on evidence secured from Mr Hedges’ electronic devices; surveillance and intelligence gathering by UAE intelligence and security agencies; and evidence provided by Mr Hedges himself — including a corroborated account of asset recruitment and training and the confidential information being targeted. His recruitment and progress within a foreign intelligence service were authenticated to the Court by UAE Intelligence Agencies.”
Upon publication of the above verdict, Hedge’s wife wrote a personal letter to the President of the UAE, HH Sheikh Khalifa Bin Zayed Al-Nahyan, who accepted her plea and granted pardon to the accused. Hence, the pardon sets up a fine example of a Legal Precedent for all criminal cases for the future. Furthermore, we also relay to our clients that clemency is not a legal right but a legal grant if awarded. The application of pardon can be initiated for both Local and expatriate populations of the UAE. This facility of the law might not be available in legal texts, but should be part and parcel of the legal knowledge of every resident of the UAE.
DISPUTE RESOLUTION OF EMPLOYMENT CASES IN THE PUBLIC SECTOR
The masses often nullify the conception of a dispute resolution in the public sector due to the lack of awareness in the general public. Many public sector employees feel that Courts hold the jurisdiction to resolve their employment disputes and the employees feel that they can proceed with a litigation case against their public sector employer. This is a false allusion, as many of us unwittingly don’t realise that the Courts do not hold the jurisdictions in a Public Lawsuit in the UAE. Hence, if you are employed by Dubai Holdings, Emaar, Nakheel, AMLAK, DEWA, ADWEA, Emirates Airlines or any other Government entity, a dispute resolution can only be resolved through the complaint section of the Amiri Court of the Emirate, in which the Company is registered. Quite often, the Courts do not proceed on a particular matter, as they don’t hold the jurisdiction to that dispute settlement resolution. Hence, we request our clients to be extra careful while lodging a complaint in the Courts for any Public Sector Company, as this is considered a Legal offence under International Law, to be specific the “United Nations Convention on Jurisdictional Immunities of States and Their Property”. Hence, our Legal expert advice to our clients is to seek proper legal advice prior to the execution of case proceedings, as only the Ruler’s Office has the sole jurisdiction of any dispute resolution in employment cases.
The Amiri Decree is the sole precedent of all dispute analysis on Insolvency one the matter is unable to be resolved at the Courts. One fine example of both Bankruptcy and Insolvency is the recent fall of the largest Medical centre in the UAE, whose stocks were traded internationally. The financial liability, including but not limited to all creditors, exceeds USD 10 Billion. The ADCB alone credited finance of AED 3.6 Billion, which caused the bank to lose the whole amount instantly due to default. The Courts gave the maintenance rights to a UK based Group by sacking the entire board of directors. It was a humongous financial crisis for all the employees, who were certainly oblivious to the methodology of management of their private-sector employer. The Ruler’s Court intervened in this matter, and subsidised the costs of all expenses incurred including but not limited to the operational cost, the employee salaries, the utilities and the overall health services, which never got disrupted due to the overwhelming Graciousness exhibited by the Amiri Court of Abu Dhabi. Also during the 2008 financial crisis, the Amiri court replenished the UAE financial system through a bailout grant of AED 70 Billion, which allowed developers to continue construction of the projects and granted respite to innumerous developers, who got bankrupted.
At BBA, we try our best to protect the best interests of our clients. In this regard, we have pursued a circulation of articles under the nomenclature of legalities in the UAE. We are sure that the audience of this article is now enriched with a new segment of knowledge for a better perusal of their legal bindings. The Amiri Decree is the highest legal precedent in the country, and the Amiri Court is the Institution which promulgates these decrees.
This article, and any other BBA’s publication, is for general information only and in no case can be considered as legal advice on any specific situation, fact or dispute. This article may not be quoted or mentioned in any other document without BBA’s previous written consent. The mailing and receiving of this article are for informational purposes only and do not create an attorney-client relationship between sender and receiver. The content reflects the personal view of the authors and does not reflect necessarily those of BBA.