As the UAE is home to more than 200 nationalities, the legal system in the UAE must try to accommodate a diverse population.
The government of the United Arab Emirates (UAE) has a well-defined system of rules and regulations that ensure the efficient functioning of the country. As stated by Article 7 of the constitution of the UAE, the Islamic Sharia will function as the main source of the country’s legislation. The court structure of the UAE consists of three main branches: civil, criminal, and Sharia, or Islamic, law.
The Sharia court is the Islamic court in the UAE and is mainly in charge of civil matters between Muslims. Sharia courts have the exclusive authority to hear family disputes, including matters involving divorce, inheritances, child custody, child abuse, and guardianship of minors. Additionally, the Islamic principles of Sharia are applied in cases where there is an absence of an applicable provision in the UAE codified law.
Furthermore, at the federal level, the Sharia court may also judge appeals of certain criminal cases including rape, robbery, driving under the influence of alcohol, and related crimes, which were originally tried in lower criminal courts.
The Fatwa Council of the UAE
The Fatwa Council of the UAE was authorized in 2017 and established in 2018 for the governance of matters about Islamic law. As the sole authority responsible for issuing fatwas, the Council aims to maintain uniformity across the country by advocating moderate Islam and eliminating potential sources of conflict that may arise between existing and future fatwas. Fatwas may be requested by the general public, institutions, and government entities to help with day-to-day decisions.
Flexibility in the Sharia Law
Sharia law may be perceived as a rigid, immovable “law of God” derived from the unchanging texts of the Middle Ages. However, it is an eminently flexible and dynamic system of jurisprudence that is completely companionable with the modern frameworks of law. This is attained by the decision-making process of Ijtihad, by which scholars deduce solutions and answers for situations and disputes that regularly arise from the broad principles set forth by the Quran and the Sunnah, that Sharia law is based on. This process is supposed to be continuous, inculcating new ideas, concepts, and rulings into the legacy of Islamic jurisprudence.
The Islamic law values the ideologies of freedom and democracy greatly. The Sharia scholars aim to empower the public with these principles by interpreting Islamic laws accordingly and by cooperating with the best lawyers to develop such laws into the legal system.
Sharia in Criminal Law
Article 1 of the Federal Penal Code states that Sharia law will govern sentences relating to crimes of doctrinal punishment, punitive punishment, and blood money. If any provision within an Emirate’s Penal Code is contradictory to the Federal Penal Code, it is repealed. The Hudud crimes of Islamic law such as apostasy, revolt against the ruler, theft, highway robbery, adultery, slander, and drinking alcohol that carries penalties constituting the amputation of hands and feet, flogging, and death, are accommodated into the UAE law.
Article 1 and Article 66 of the UAE Penal Code require certain hudud crimes to be punished with the death penalty. The Federal Supreme Court in the UAE sentences the death penalty based on Qisas ((قِصَاص) equal punishment) for grievous crimes such as murder, rape, treason, apostasy, and certain cases of drug trafficking. Flogging in the Sharia Court can range from 80 to 200 lashes. Stoning to death is also a punishment in the UAE. Death by stoning can be ruled on only if confession and four witnesses are obtained which is legally binding for a stoning sentence to be carried out.
Diya ((دية) blood money) is also a sentence ruled by the courts. Limited to two hundred thousand (200,000) dirhams, Diya is not exclusively used as a punishment for the victim’s relief in a criminal court. It is commonly applied in cases where death was due to negligence. Other criminal conducts that have Sharia law influence in its punishments are verbal abuse, common-law relationships, abortion, homosexuality, cross-dressing, dress code violations, and public displays of affection.
- Articles 371 to 380 of the UAE Federal Law No. 3 of 1987 prohibit any verbal abuse or defamation of a person punishable by a jail term for up to two years or a fine of up to twenty thousand (20,000) dirhams. The severity of the punishment will increase if the victim is a public officer or if the insult is targeted at a family’s honour. Verbal abuse regarding the sexual honour of a person is punishable by 80 lashes.
- Article 340 of the Penal Code states that abortion is illegal in the UAE except in situations where a woman’s life is at risk or the unborn child has a genetic condition that will prove to be fatal. A woman who is found to have undergone an elective abortion may face a penalty of up to five years in prison and a fine of up to 10,000 AED. Offenders may also face a penalty of up to 100 lashes.
- The dress code is a part of UAE’s criminal law. Although it is not strictly enforced in public places, particularly in Dubai, a proper dress code must be followed in shopping malls, local areas, and mosques, and also during the month of Ramadan.
- The UAE criminalizes all sexual relationships outside that of heterosexual marriage. Article 354 of the Penal Code prohibits rape and consensual sodomy. The common punishments for LGBT persons include imprisonment, death, fines, floggings, and deportation. Apart from these punishments, chemical castration, forced psychological treatments, beatings, forced hormone injections, and torture have also been tolerated in the country. Cross-dressing is also illegal in the country. Article 80 of the Abu Dhabi Penal Code imposes imprisonment of up to 14 years. Article 177 of the Dubai Penal Code makes sodomy punishable by imprisonment of up to 10 years on consensual sodomy.
- Romantic kissing and any other forms of romantic affection in public places are deemed discourteous to the Emirati culture and against public morals under Article 58 of the UAE Penal Code. Any form of indecent exposure including public nudity and engaging in sexual intercourse in public places is illegal under Article 358 of the UAE Penal Code. Punishments may vary from fines, imprisonment, and flogging.
- Adultery is a criminal offense in the UAE under Article 356 of the Penal Code that is punishable by up to three years in prison followed by deportation. In some instances, sentences of flogging have also been ruled.
Sharia Law in Family Matters
All family-related issues including marriage, succession, and divorce are governed by Sharia law (as per constitution) and the personal status law. Article 1 of the Federal Law No. 28 of 2005 states “the law shall apply to all UAE nationals except where non-Muslim UAE nationals have special rules relating to their specific creed or sect.” This elucidates the separation of Muslim and non-Muslim UAE nationals by Sharia law. This law also applies to non-UAE nationals who may opt for UAE law over their law. Thus, non-Muslims and non-UAE residents have discretion when it comes to choosing the UAE law based on Sharia. However, there are situations when this choice cannot be exercised:
- one of the two parties holds two or more passports issued by any state.
- there is a significant level of ambiguity in foreign law.
- relevant foreign law is in direct conflict with Sharia law.
- There is no foreign law that covers this aspect of the particular case.
With the exceptions mentioned above, the Laws of non-Muslim Emiratis remain protected via special regulations relating to religion.
Sharia Law in the Business Sector
Multiple core principles of Sharia apply to business transactions and have influenced the development of the commercial codes that apply in the UAE. These concepts have been directly translated into Islamic finance and have extensively exerted an effect on the drafting and interpretation of the commercial codes. These concepts are:
- Usury or charging of interest (Riba): under Sharia law, money is not an article of trade nor does it have a value over time if left unused. This concept indicates that interest charged is an unjust income. This concept is reflected in Article 714 of Federal Law No. 5 of 1985.
- Sharing risks: investors are required to share the profits or losses of investments in proportion to the amount that was put into the transaction.
- Prohibition of uncertainty (Gharar) in a contract: parties must undertake a contract with full knowledge of all the terms, with an advance agreement in the amount of capital or goods that must be stipulated in the contract.
- Competence: the parties in a contract must possess the legal capacity to understand and assume the obligations of the contract.
- Consent: the parties to a contract should enter into it of their own free will and should not be subject to coercion or duress.
UAE Law Reform of 2020
In November 2020, several Presidential Decrees were approved by the President of the country which relaxed some of the Islamic Laws and shifted to a more secular system. These Decrees amended the Personal Status Law, Federal Penal Code, and the Federal Penal Procedural Law and were in effect immediately. The changes brought by these reforms aim to make the country more accepting of expatriates thereby portraying the UAE as an attractive destination to live, work and invest in. The following are the key changes that favour immigrants:
- Inheritance: expatriates can now apply the laws of their own country or nationality to deal with their estate, provided they prepare a will beforehand under Federal Decree-Law No. (29) of 2020. Before this reform, the Sharia Law of Inheritance was applied to the estates of ex-pats who passed away, unless there were official legal measures taken. In the event of an absence of a will, the UAE laws are applied. However, there is a lack of clarity regarding issues such as:
- requirements of the will
- application of these rules to Muslim expatriates
- cases of dual nationality
- documentations or processes necessary to request the support of a will
- following the guardianship provisions in the will
- Divorce: any couple, irrespective of their religion can seek divorce in the UAE, with the jurisdiction of the country of marriage applying to the divorce under Article 1 of the Federal Decree-Law No. (30) of 2020. This will reduce conflicts regarding the choice of jurisdiction and distribution of assets during the divorce. It is recommended to seek specialist advice if there is an element of cross border.
- Alcohol Consumption: the country has decriminalized alcohol consumption. Following this reform in Article 1 of Federal Decree-Law No. (15) of 2020, any person above the age of 21, irrespective of their religion may consume alcohol in private spaces and licensed areas. However, a permit is still required to purchase alcohol. The zero percent alcohol tolerance remains while driving.
- The cohabitation of Married Couples: the UAE now permits unmarried couples to live together, provided they are not married to a third party as this would be categorized as adultery. This law also applies to unrelated flatmates of the opposite gender.
- Harassment, Assault, and Women’s Rights: ‘honour killings’ will be treated as assault or murder without any leniency in the sentence given. Tougher punishments on men who harass women, including stalking and street harassment, are also introduced.
- Suicide: Suicide and attempted suicide is decriminalized under Article 1 of Federal Decree-Law No. (15) of 2020 with the court sentencing a rehabilitation order instead of imprisonment or fines. However, any person instigating the suicide will be prosecuted.
- Good Samaritans: the courts will no longer hold a person liable for giving first aid or CPR to someone in need and worsening their conditions, provided the act was conducted in good faith.
As the UAE is home to more than 200 nationalities, the legal system in the UAE must try to accommodate a diverse population. An ideal solution to achieve this would be to maintain a harmony between the foundational Sharia law and the global legal standards, allowing the country to remain true to its roots while embracing modernity.