Legal History of United Arab Emirates
United Arab Emirates (UAE) comprises of seven emirates, which are Ajman, Umm Al Quwain, Dubai, Abu Dhabi, Fujairah, Ras Al Khaimah and Sharjah. In the early 19th century, the area was referred to as pirate coast. The British entered various treaties in 1820s to protect important shipping interests. The perpetual maritime treaty that was signed in 1853 allowed British to handle foreign relations. The United Emirates acquired their independence from the British in 1971. Ras Al Khaimah was the last to join the federation. It entered the Union in 1972.
The main principles of United Arab Emirates are drawn from the Sharia. However, most legislation entails a mix of European and Islamic concepts of the civil law whose origin is the Egyptian legal code created in the 19th and 20th century (Al Abed & Hellyer, 2001). The adoption of civil law by a number of states in the region demonstrates the French influence. Besides, having particular legal legislation for the agencies, labor law, company law and intellectual property, United Emirates has endorsed commercial and civil codes. This system has brought about the development of structured and comprehensive legal systems. However, these are rigid to some extent constituting the official procedure linked to various nations in the Middle East.
The legal system structure is complicated. The Sharia courts, dual courts, and civil courts operate parallel, but cover differing sections of the law. For instance, each emirate in the United Arab Emirates region owns a federal court of first instance. Ras Al Khaimah and Dubai have separate judicial frameworks. The legal system also uses a language that differ from those that is in the west. This makes it difficult for people unfamiliar with it to carry out any business within the region.
Despite the system being different, its core principles as well as the structure are rational and easy to understand. Over the years, they have evolved and are almost similar to those of the west. Presently, UAE is adapting to the varying needs of its citizens and developments for a contemporary age (Federal Research Division Staff, 2004). Alterations within the commercial law have eased up legal regimes by ensuring an open and comprehensible environment for foreigners and investors to transact business in the region.
The foundations of the United Arab Emirates law is Quadric or Sharia Law. The constitution identifies Islam as the religion of the region and the main source of the law (Al Abed & Hellyer, 2001). Irrespective of the Sharia principles influencing civil and criminal laws, the undeviating influence of Sharia in the region is mainly limited to social laws including family and divorce. Commercial matters are addressed by the civil courts or permanently created arbitration tribunals.
There are a number of major Shariah principles, which cover business transactions in the United Arab Emirates. Moreover, they have influenced the establishment of commercial codes. The following are concepts that have directly influenced the drafting and interpretation of the laws.
- Usury is forbidden. The Sharia states that money is an untradeable commodity that has no value if it's not put into use. This means that the interest gained from using it is an undue income.
- Risk must be shared. Since income is not obtained from interest payments, the investors should share in losses and profits according to their contributions.
- Uncertainty in contract is not allowed. Parties should embark on a contract with a good comprehension of the terms and conditions. Therefore, the amount of goods and capital should be stipulated in the contract.
- The competence is similar to the case of jurisdictions, the law clarifies that the parties in an agreement must have legal capacity to comprehend and assume responsibility of the contract.
- Consent parties should not be forced to enter into a contract. They should be into it, free of duress or any coercion.
Constitution of United Arab Emirates
United Arab Emirates (UAE) constitution was implemented in December 2, 1971. However, it gained permanent acceptance in 1996. This constitution contains the fundamental principles governing the seven emirates of Dubai, Abu Dhabi, Ajman, Sharjah, Fujairah, Umm Al Quwain and Ras Al Khaimah. The UAE constitution has 10 parts and 151 articles.
The author of the UAE constitution is Adi Bitar, a former judge and legal advisor. Initially, this constitution was aimed at providing a temporary legal and political infrastructure for the newly established federal union of the seven emirates formed in 1971 after the breaking away of Qatar and Bahrain to become independent countries. As provided by article 9 of the constitution, the head of Abu Dhabi, Sheikh Zayed bin Sultan Nahyan, has to become the president of United Arab Emirates, since the headquarters of the union were in Abu Dhabi.
Later, in 1979, was made a perennial draft of the constitution. So, it allowed the creation of an affiliated judicial and military system. However, this was met with some resistance from the Emirate of Dubai who, at first, did not attend the initial Supreme Council meetings. Then, this called for mediation talks to reduce the tension between the rulers of Dubai and Abu Dhabi.
After several years of struggle, in 1994, Dubai accepted the implementation of an abiding constitution that allowed for the formation of unified armed forces of the seven Emirates. In addition, Abu Dhabi became the permanent headquarters of the UAE. Despite agreeing to the formation of a unified military system, Dubai kept an independent judicial system, which was not affiliated to the Supreme Court of the UAE.
Moreover, it is worth noting that despite the constitution of the UAE providing for the formation of a federal government, it allows each individual emirate to from its own legal principles. This is reflected in the differences in the governance structures of the Emirates. However, the federal government has three major components: the executive, legislature and the judiciary. The executive is the most dominant branch. Another characteristic of the governance system is that it is monarchical union. In that political parties are non existent as well as elections; each emirate is governed by a royal family, which passes powers down to its descendants. Generally, their political process is centered among the ruling family and other nobles such as merchants and religious leaders.
Furthermore, the socioeconomic system of the UAE is primarily supported by the oil wealth of the Emirates. Therefore, this has led to the elimination of the taxing system and the provision of free social welfare amenities such as health care. Their health care facilities are quite modern. The constitution under section 17 further provides for the provision of free education at all levels together with the provision of free learning equipment such as books and uniforms. This is because the constitution sees education as fundamental to the development of the UAE society. In fact, education has the second largest federal budgetary allocation. The importance accorded to education in the UAE is further reflected in the federal government's efforts to formulate and implement educational policies for both traditional and nontraditional student populations.
The Essential Components of UAE Constitution
In part 1 article 2, Abu Dhabi is recognized as the headquarters of the UAE. Article 4 provides that the president of the United Arab Emirates is the ruler of Abu Dhabi. In article 10, the sovereignty of the union is provided. Moreover, article 11 abolishes the taxing system in the seven emirates, so that citizens are not required to pay taxes. Additionally, a unified economic and customs system is established to ensure the free movement of goods and other resources within the territorial borders of the Emirates. This means that all duties and other inter-Emirate taxes have been abated (Lau, 2006). Moreover, article 12 covers the foreign policy of the UAE by providing that the UAE will back any Arab and Islam operations and collaborate or cooperate with all nations as per the provisions of the United Nations Charter.
Part 2 of the UAE constitution deals with the essential social and economic principles of the UAE. Social justice and equality is advocated for under article 14, which recognizes that all UAE citizens are equal and should be accorded equal safety and security provisions. Under article 15, the sanctity of the family is protected through the provision that a family is protected by the law; that it should be erected on chastity, religion, integrity, and nationalism (Lau, 2006). The importance of education in the UAE society has been emphasized under article 17, which dictates that primary level education is mandatory. The socio-economic welfare of the citizens is protected under articles 21 and 22, which provide for the protection of private property and public property, respectively. Every citizen is charged with the responsibility of protecting public property.
Moreover, the rights and freedoms as well as the duties of the citizens have been covered in part 3 of the constitution. Article 25 emphasizes the rule of law by acknowledging that no one is above the law. In other words, all people are equal before the law irrespective of their race, religious background, socio-economic status, and nationality. Additionally, the law provides that nobody should be unlawfully arrested, detained, searched or put in imprison. Article 28 furthers on this by providing that any suspect is innocent until proven guilty. The basic human rights and freedoms have been provided for under articles 29, 30, 32, and 33. Article 29 grants freedom of movement whereas article 30 grants the right to freedom of expression. Article 32 provides for the freedom of worship as long as it is not contrary to public policies and morals whereas article 33 gives freedom of association and assembly as long as it is within the confines of the law.
Furthermore, part 4 of the constitution gives guidelines on the establishment the governing bodies of the Union. Under article 45, the Supreme Council of the Union (SCU), the National Assembly, the Judiciary, and the Council of Ministers have been formed. In article 49, the Supreme Council is given the authority to any annul decisions by lower courts. Chapter 3 of the constitution gives the guidelines for the formation of the council of ministers of the union whereby article 55 acknowledges that the council shall have a prime minister, his deputy and several ministers. The Ministers will cover the areas of foreign affairs, defense, finance, economy and industry, interior, education, justice, public health, planning, information, public works, and agriculture, communications, post, telegraph and telephones, labor and social affairs. The composition of the National Assembly is provided under chapter 4, section 1, article 68, which provides that the National Assembly shall have forty members. The seats will be allocated as follows: Abu Dhabi and Dubai 8 seats each; Sharjah and Ras Al Khaimah 6 seats each; and Ajman, Umm Al Quwain and Fujairah 4 seats each. Finally, article 108 gives the president of the union the ultimate powers to affirm the death sentences given by any judicial authority. Moreover, part 5 continues with the provisions of the Union and its legislative and authoritative prescriptions.
Part 6 of the UAE constitution covers the Emirates by giving them the guidelines for their operations and conduct. In this entire part, the constitution directs that the Emirates may perform other duties outside the Union's provisions as long as they do not contradict those of the Union.
The financial affairs of the UAE have been covered in part 8 of the constitution. The revenue sources for the union as well as the budgetary preparations have been outlined in the entire part from article 126 to article 133.
Part 9 covers the armed forces and security forces of the union by providing that these unified forces will be charged with the duties of protecting emirates from any external attacks. Under article 142, each individual Emirate has been granted the right to form its own security forces to be incorporated in the unified security forces for purpose of protecting emirates (Lau, 2006).
Finally, part 10 deals with the final and transitional provisions of the institution. Article 145 dictates that the constitution shall remain active unless a martial law is affected. This part gives the constitution the ultimate powers over all Emirates. It also acknowledges that the Federal Supreme Council is the ultimate authority of the UAE, which acts as the reference point to the emirates individual governments.
Legislation and Government in UAE
As aforementioned, the constitution of the UAE provides that the governance system shall have 3 branches of executive, judiciary, and legislature. The executive comprises of the president, the vice President, Federal Supreme Council, and the Council of Ministers (Federal Research Division Staff, 2004). The Emirates consist of the seven Emirates and form the Federal Supreme Council, which is mandated to choose the President, his Vice, the cabinet and the Federal Supreme Court judges. It is also the duty of the Supreme Council to draft the government code, solicit and authenticate national laws and authenticate treaties.
The prime minister and the president, even though chosen by the Supreme Council are basically hereditary. The Dubai’s Emir is the prime minister. Whilst the Abu Dhabi's Emir is the president. All the prime ministers except one had served at the same time as vice president. The financial requirements and political control of the emirates are mirrored by their relevant ranks in the federal government. Although, every emirate preserves its independence over its region, a proportion of its revenue is assigned to the central budget of the United Arab Emirates.
Since the foundation of the UAE, Sheikh Zayed bin Sultan Al Nahyan has been the president until 2004 when he passed away. His son Sheikh Khalifa bin Zayed Al Nahyan was elected by the Federal Supreme Council to the post of presidency (Federal Research Division Staff, 2004).
The legislature constitutes the Federal National Council (FNC). It comprises of 40 members selected from all Emirates. 20 members are chosen by the Emirate’s rulers, whilst the rest are indirectly voted for to serve a term of 2 years. The initial indirect elections occurred in 2006, with an aim of an entirely chosen council. The main responsibility of the council includes consultative roles, and has also supervisory and legislative duties that are provided by the country's constitution. Another responsibility of the council is to amend and analyze the proposed legislation. Nevertheless, it cannot stop the same from turning into a law.
The main responsibility of the Federal National Council include:
- Appraising the yearly federation’s draft budget;
- Influencing the work of the government via various channels such as discussions, queries and answer sessions, proposals, as well as follow ups on grievances;
- Discussing on global conventions and treaties;
- Debating on draft laws and constitutional amendments that might be amended, approved or rejected.
According to the constitution, an independent judiciary entails the Federal Supreme Court. Nevertheless such states as Ras Al Khaimah and Dubai are not part of the national judiciary. All Emirates within the region posses their own Islamic and secular law for civil, criminal as well as high courts.
Parallel to the economic growth of the United Arab Emirates, the rulers of the different countries have instigated political reforms to develop the political establishments (Federal Research Division Staff, 2004). The process of political transformation was visualized in 3 stages:
- Carry out elections to select half of the FNC members via an Electoral College;
- Increase the powers of the Federal National Council and increase the number of its members. This would necessitate wide ranging constitutional studies as well as probable modifications, and as a result the political establishment will be an enabled body;
- Carrying out an open election for half of the Federal National Council.
The main aim of the elections was to expound political participation as well as establish a culture of government reform. There are 3 reasons that accustomed the restricted scope of involvement.
- Lack of an electoral tradition;
- Widespread political tension as well as instability in the United Arab Emirates, hence no scope for error;
- Elections being divisive affairs based on religious and sectarian concerns, which United Arab Emirates wanted to circumvent;
- The Supreme Council accepted constitutional amendments to empower the FNC as well as increase government accountability and transparency.
The Government of the United Arab Emirates is the extension of the UAE Federal Government in electronic form. UAE electronic Government facilitates access to government services and information via creative and customer-responsive channels. In addition, it streamlines the procedures for quality government service delivery in a timely manner. The UAE electronic Government employs contemporary tools in Information and Communication Technology (ICT) to link with users from within the UAE region and beyond. The establishment of the electronic government is a key step to the upgradation and modernization of the functioning of the government, as it results to cost effective, transparent, eco-friendly, and participative government.
The legislation is formulated in various codes that provide for the common principles of the law with a remarkable amount of supplementary legislation. Over the past 30 years, the influx of the international and commercial enterprises in the UAE has led to the establishment of an understandable body of federal legislation in the form of federal codes of law. The federal codes apply in the emirates that deal with the fundamental principles of the law, which include civil, civil procedure, intellectual property, commercial, companies, maritime, employment, industrial, immigration, and commercial law. Contrary, the Laws enforced in the region are associated with matters that are administrative in the creation and operation nature of the treaties affiliated to the government.
Law of Torts
Under the United Arab Emirates law, a tort is explained as a civil mistake that results from an omission or an act that causes injury or loss to an individual or property, in spite of whether such an act amounts to a crime or is as a result of a breach of contract.
A tortious liability necessitates a mixture of three components, which include the wrong, harm, and a causation relationship. Providing evidence of the wrong is not necessitated in one circumstance, while taking into account the liability of possession of equipments and items requiring special care (Lau, 2006). On the contrary, providing evidence on subsistence of both a wrong and harm caused is frequently held to involve an assumption of a causation relationship that might be refuted by confirming a foreign cause. In this case, a tortious liability is in addition held to be ascertained due to an omission or an act.
Civil Transactions Law
The law has various articles some of which are explained herein. These articles find provisions for fault, harm, and causation relationships.
This article states that obligations stem from legal occurrences and acts. The foundation of obligations include: law, contract, harmful act, unilateral disposition, and beneficial act.
If a injurious act is committed to a third party, the person responsible shall be rendered liable to the harm even if he/she is not capable of judgment.
The provisions of this article are that a damage may be done by causation or directly. If it occurs directly, liability for harm should turn out to be completely essential, and if it is as a result of causation, it should be with reference to the situation of premediation or trespassing, given that it results to injury.
If a causer and a doer join, the latter will receive the judgement.
An action of beguilement (deceive) caused by one individual to another will result to the causer being responsible for damages.
If property of one person is spoiled, he/she should not destroy another individual’s property. Persons will be accountable to repair the harm they cause.
If an individual provides evidence that the damage caused to other persons or property was as a result of a foreign cause. For instance, an unexpected accident, an act of God, a third party’s act, a force majeure, or an act of the injured person, then he/she is deemed not liable except when agreement or the law necessitates otherwise.
If a person causes harm to another individual while he/she was defending himself/herself, his self, his honor, or his property, or that of the third party lawfully, he shall not be liable for such a damage/injury given that it does not surpass the lawful limit allowed by the law. If such damages go beyond the limit, then the person becomes responsible.
All acts shall be attributed to the doer unless he is under pressure. Acting under pressure will be taken into consideration only in situations of compulsion leading to constraints. A public official is not responsible for actions that cause harm to others if he acts upon the orders given to him by the authority, if following such an order is mandatory for him, and he believes, and gives evidence of his belief provided it is rational, and that he was cautious while carrying out the order.
In case the injured has contributed to the damaging act, the judge will reduce the liability on the other participants or he may judge against the damages.
In case a harmful act is committed by a number of people, each of the persons shall be responsible to the degree of his contribution. Therefore, the judge may decide they are jointly or equally responsible for the damages.
The quantity of liability in all cases shall be determined according to the damages incurred by the injured person and the gains he loses as long as the damages are as a result of the damaging act.
The right to claim compensation for damages shall comprise moral injury including infringement of freedom, reputation, financial status of a third party, honor, social status and character. Damages can be granted in favor of loved ones or in the family for any harm caused to them if the injured person dies. Damages for moral injury should not be awarded to a third party unless the amount has been estimated as per the agreement or final judgement.
The compensation for harm may be done through instalments or form of an accepted income. The debtor will have to give a deposit as calculated by the judge.
All damages shall be calculated in the form of currency. Nevertheless, the judge presiding the case may order at the request of the injured or due to circumstances, case reinstatement or may deem that a specific subject linked to the damaging act be performed as compensation.
All conditions calling for exclusion from the obligation emerging from the damaging act shall be annulled.
As long as the requirements are satisfying, the civil liability should not influence responsibility. Additionally, the criminal penalty shall not have effect on determining estimation damages and degree of civil responsibility.
Action to be taken for damages as a result of harmful act will not be taken into consideration after expiry of three years from the day the accident or injury takes place. However, if the case is as a result of a crime and the hearing of the criminal case will still be underway when the three years elapse, the action for liability for compensation will not be discontinued. However, action of liability in all cases will not be heard after fifteen years from date of occurrence.
Law of the Contract of the Employment and Agency
As per the law of contract of the employment and agency, the employer is required to give employees an official affirmation of the employment terms. This includes wage affirmation before they leave their nation of origin (if they are not AUE citizens) and prior to assigning them to the site (Uz Zaman, 2011). All employment contracts are supposed to abide by the laws of the country, and the employer is required to translate and explain the same to the employees before signing. Employment contracts should also be registered and endorsed by the Ministry of Labor, and a copy of the same given to the employee for filing.
The United Arab Emirates Labor Law is a broad law, which controls all features of labor relationships between employees and employers. It is a balanced and superior law, which illuminates the duties and rights of employment parties and brings forth various benefits to workers. The law was established in 1980. It has received various amendments. It has 193 articles that summarize everything concerning employees including entitlements (workers compensation, holidays, working hours, and leaves amongst others), disciplinary rules, labor dispute settlement, and employee contracts (Uz Zaman, 2011). Some of the articles pertaining to employment contracts are explained herein.
The provisions of this article require an employer to write an employment contract in duplicate. One copy should be retained by the employer while the other copy should be given to employee. This is with reference to the provisions provided in Article 2. If the employment contract is not written, enough evidence must be established.
This article specifies that an employment contract must specifically indicate the date when the employee starts working, the place and kind of work, wage, contract duration, and its conclusion date.
An employee should not stay on probation for more than six months. However, the employer may terminate the employment services during this time without severance pay or notice. Another provision of the article is that an employee should be put into probation once with similar employer. After an employee effectively concludes the probation period and goes on with employment, this must be counted as time of service.
The provisions of this article are that an employment contract might be of indefinite or definite period. A contract of definite term should not go beyond four years. Nevertheless, it can be renewed by joint accord for a shorter or equivalent term. When an employment contract is renewed, it will be considered as an addition of the original period and thus, should be calculated together with the employee’s entire work period.
From the beginning, an employment contract should be deemed as an indefinite period contract only when:
- It is unwritten;
- The period of conclusion is not specified;
- At first, it was written and after expiry of the definite term, an agreement was made verbally between the two parties for the employee to carry on performing the job;
- It was initially written for the performance of a certain job that lacked definite duration, however, after the task was completed, the employment contract continued.
Where the contracting parties go on with the contract even after the original term expires, the initial contract must be considered to have been made longer on similar conditions, with the exception of the term.
The article states that in case an employer subcontracts major operations to a third party, the third party must be totally accountable for entire entitlements of the workers taking part in the subcontracted job. This is in agreement with the employment law’s provisions.