Written by Manan Daga
Research Associate at Law & Order (month of Oct-Nov 2020)
Third Year, BA. LLB. West Bengal National University of Juridical Sciences, Kolkata (WBNUJS)
Source: Day of Dubai
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The United Arab Emirates (‘UAE’) has undergone multiple reforms in criminal law, civil and inheritance laws lately. These reforms mark a new beginning for the UAE, where these reforms are being celebrated as a path to success and prosperity as a society. These reforms were issued by the President of the UAE, Sheikh Khalifa bin Zayed Al Nahyan, which amended the substantive, procedural and personal laws. These laws focus on making the UAE a tolerant society which since it reformed laws for the non-citizens, which would give them a greater freedom under the civil and personal law. It is a step towards ensuring better global investment and making the UAE a safer and more attractive destination with liberal reforms. In this article, the primary focus is on the criminal law reforms in the UAE. Initially, the reforms are described in this article which is followed by a critical analysis of the criminal law reforms where the possible implications of these reforms are analysed. Lastly, this article is concluded with the future prospect of these reforms and the inspiration other countries should take from the UAE.
Legal reforms in the UAE
There have been numerous reforms in the criminal, civil and personal laws. Under the criminal law reforms, the laws on suicide, honour killings, and a few others were amended.
Furthermore, under the civil and personal laws, the laws on will and inheritance were amended. Eleven major reforms under criminal, civil and personal laws are listed out in this article.
Firstly, the law on honour killings has become stricter. Honour killing is a process where either a male is prosecuted leniently, or he evades the same for the killing of a woman who had ‘supposedly’ dishonoured their family. Earlier, the punishment for the same was lenient since it was between three to fifteen years of imprisonment, but it has been reformed to stricter punishment like that of murder.
Secondly, suicide or attempt to suicide was a crime before, but they have been decriminalised under the new law reforms. Along with this, the people who have attempted suicide or have harmed themselves would be referred for mental health treatment.
Thirdly, the law on Good Samaritans has been introduced during the wave of reforms. Previously, if a person injured someone unknowingly while helping them like CPR, then such a person was held liable for this injury. However, these reforms amended this law and held that any such person who is helping someone, will not be punished for his good deeds and would be considered as a good Samaritan.
Fourthly, the laws related to alcohol consumption, sale and possession have been relaxed. Previously, anyone found in possession of liquor could be charged with a penalty. The laws on alcohol reformed where the consumption, sale and possession of alcohol by anyone under the age of 21 years is punishable, and not for others, as long as the other rules and conditions are followed.
Fifthly, the laws on consensual sexual intercourse have been amended. Consensual sexual intercourse is no more punishable under the new law. However, it is punishable when the perpetrator commits the act on a girl or a boy under the age of fourteen (14) years, or the perpetrator commits the act on his first-degree relative, or he commits the act on a mentally unfit person. Furthermore, sexual intercourse with any minor or any person who is mentally challenged will be punishable by the death penalty under the new laws and will be considered as an act of rape.
Sixthly, the reformed laws have shown some shades of leniency in the decency laws. In the UAE, decency laws include where the accused engages in an indecent exposure like nudity, or commits a lewd act. So, under the old law, a person would be imprisoned for committing indecent acts. However, under the new laws, a person convicted for an offence the first time will be punished with a financial fine instead of imprisonment. For subsequent offences, the old law will be followed.
Seventhly, the reformed laws have focused on strengthening privacy by stipulating that the personal information of a victim in cases of sexual nature involving the minor’s physical, mental, psychological and moral safety.
Eighthly, under the new laws, cohabitation of an unmarried couple is legalised, which was a crime in the UAE until the reforms were made.
Ninthly, the UAE is filled with expatriates, so the new laws will allow the foreigners to avoid the Islamic Shariah Courts on personal law issues like marriage, inheritance and divorce. Earlier, the Islamic Shariah Courts would apply to them, but after the reforms, they can avoid the same. Hence, a foreigner may use the personal laws of his/her home country (country of their nationality).
Tenthly, under the new laws, if a couple got married in their home country which is not the UAE but wants to get a divorce in the UAE, then the laws of the home country where the marriage took place would apply.
Lastly, the procedural laws were amended to ensure that an interpreter is present when the judicial arresting officer is arresting a suspect or meeting a witness who does not know Arabic.
This reform comes as a boon because many people in the UAE may not know Arabic since the country is filled with expatriates. One would face grave hardships when this reform did not exist like not understanding their charge, or not being able to communicate with the officials. Hence, this reform underlines that one should not suffer because of linguistic barriers.
Critical analysis of criminal law reforms in the UAE
The journey of the legal system in the UAE from the old and conservative laws to the modern and liberal laws is commendable. Such a journey could not have been easy in the UAE where the six Emirates had to come together to bring about this change. The old laws of the UAE hindered the perception of a modern and liberal society. The laws which were unnecessarily stringent like the ones concerning alcohol were relaxed. Moreover, the laws which were unnecessarily lenient like the ones concerning honour killings were strengthened. It underlines the nature of these reforms, which were not in any one particular direction, but were diverse and wholesome.
The stricter laws for honour killings indicate a liberal approach to the legal system of the UAE. It highlights a shift from the conservative patriarchy to a liberal and equal society where the killing of a woman for any reason is treated as murder instead of honour killing. This shift is seen in other reforms too. In the case of suicide, the issue of mental health is addressed and recognised the same. Attempting suicide is no longer a crime in the UAE because the reasons for suicide may stem from mental health problems. Hence, the reforms aimed at treating the mental health of the person instead of punishing them, which would solve the root of the problem instead of punishing them. Significance of liberal equality and mental health in the criminal legal system has positive implications in the future. It is because this demonstrates that society is capable of adapting itself to change rather than being rigid on old customs and beliefs.
Moreover, the reformed laws which protect the privacy of the victims in the cases of sexual offences or in cases involving minor’s safety demonstrate the growth of their legal system. The system was aware of the victimisation in such sensitive cases, and such victimisation becomes easy in this digitised era. Hence, the privacy of such victims become crucial to protect them from this misuse and victimisation. It will help them to avoid social pressure and focus on getting a fair trial without the fear of societal views and backlash. Furthermore, the punishment of the death penalty in cases of sexual intercourse with a minor or a mentally challenged person supplements the previous points. They are moving to a system where the victims are not hesitant to come forward because of the backlash, pressure and injustice. These reforms will help in bringing this system where the victims will get their deserved justice in such heinous crimes.
The reformed laws also aim to give the freedom of choice and actions to its citizens by ensuring consensual sexual intercourse (subject to its limitations mentioned earlier) is not a crime or the consumption, possession and sale of alcohol. The system grants its people the freedom to decide on these issues and trusts them to make the right choices. Hence, these reforms have also demonstrated the trust this system has on its people by decriminalising the said acts. These reforms have paved the way for a better future which ensures equality and liberty for all, along with ensuring the comfort of victims in coming forward to get justice. It is supplemented with the trust this system has on its people. The legal system of the UAE has undergone such path breaking reforms which highlight the strength of its legal system.
The legal system of UAE had drawn core principles from Sharia. The Sharia directly influenced the family laws, and indirectly influenced the criminal and civil laws. The UAE has drawn many legislations which were a mix of the Islamic and European laws. It highlights the difficult transition in the legal system of the UAE. The journey of the country started from a conservative legal system, and has evolved into a liberal legal system. Moreover, the UAE had to bring simultaneous changes in six different Emirates. The six Emirates of the UAE have different societies, different growth and prosperity. Regardless, the UAE underwent this transforming journey from conservatism to liberalism.
These reforms will have their implications inside and outside the UAE. It is surrounded by the other Middle East countries like Saudi Arabia and Oman. The legal system in these countries strictly enforces Islamic Laws like laws on alcohol, etc. The UAE is surrounded by countries which have strict Islamic Law. Regardless, it has enforced these liberal reforms. Hence, these reforms may have implications inside and outside the UAE. The internal implication is obvious and has been discussed in the majority portion of this article. The outside or external implications are underrated.
The legal reforms in the UAE may act as a motivation or an initiative which can be followed by other countries. The liberal people living in the neighbouring countries may push for similar reforms by taking inspiration from the UAE.
This is a positive reaction. The external implication may also lead to a negative reaction. The neighbouring Middle East countries may not agree with the reforms of the UAE, and criticise the same. It may create a degree of hostility in the Middle East. Hence, the reforms taken by a country in the Middle East may have internal and external implications. These implications and responses can either be positive or negative. A positive response may lead to a liberal system in the entire Middle East. A negative response may lead to hostility in the Middle East. Thus, the external implications determine the societal setting of the Middle East. Hence, the external implications should not be overlooked.
The reforms in the legal system of the UAE is a welcoming change towards an era where mental health has been given importance, and victim-shaming has been minimised. These reforms may have implications on two levels. On one level, the young people settling in the UAE may increase because of modern and liberal laws. On another level, more countries may take inspiration from the UAE and adapt these reforms because it shows a sign of growth as a society. These reforms may get some resistance from the conservative people, but eventually, these reforms will lead to the betterment of the country. These reforms make the country a better place to live and get justice for its citizens as well as its non-citizens. The aim of these reforms is the change one should hope to see in the entire world. Therefore, the law reforms have the potential to pose as an inspiration for countries where the laws are still not evolved to meet the interests of both citizens and residents. The laws that surround us play a factor in determining our conduct and thought process and the UAE has done a commendable job with these reforms which might facilitate in the development of the country.
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AP, UAE announces relaxing of Islamic laws for personal freedoms, THE HINDU (Nov. 7, 2020, 4:41 PM), https://www.thehindu.com/news/international/uae-announces-relaxing-of-islamic-laws-for-personal-freedoms/article33047569.ece
Deutsche Welle, UAE gets rid of 'honor' killing defense in major legal overhaul, (Nov. 7, 2020), https://www.dw.com/en/uae-gets-rid-of-honor-killing-defense-in-major-legal-overhaul/a-55529396
Dr Ahmed Aly Khedr, UPDATE: Overview of United Arab Emirates Legal System, GLOBALEX (Jan. 2018), https://www.nyulawglobal.org/globalex/United_Arab_Emirates1.html
Explained Desk, Explained: The laws UAE has relaxed, THE INDIAN EXPRESS (Nov. 9, 2020, 2:52 PM), https://indianexpress.com/article/explained/explained-what-are-the-islamic-laws-the-uae-has-relaxed-7013308/
Gov.UK, Saudi Arabia, https://www.gov.uk/foreign-travel-advice/saudi-arabia/local-laws-and-customs
Gulf News Report, UAE introduces changes to criminal, civil codes and inheritance law, GULF NEWS (Nov. 7, 2020), https://gulfnews.com/uae/government/uae-introduces-changes-to-criminal-civil-codes-and-inheritance-law-1.1604737879021
HT Correspondent, UAE unveils major changes to personal and criminal laws, HINDUSTAN TIMES (Nov. 7, 2020, 11:55 PM), https://www.hindustantimes.com/india-news/uae-unveils-major-changes-to-personal-and-criminal-laws/story-OVg8fVLWMTbQzX1D9CEQbO.html
M. Al Khairy, Prominent Reforms on UAE’s Civil and Criminal Law Announced, HHS LAWYERS (Nov. 9, 2020), https://hhslawyers.com/blog/prominent-reforms-uaes-civil-criminal-law-announced/
Marie Nammour, UAE issues landmark reforms to civil, criminal law, KHALEEJ TIMES (Nov. 7, 2020), https://www.khaleejtimes.com/news/uae-issues-landmark-reforms-to-civil-criminal-law
Web Team, Extramarital sex is not a crime; UAE announces significant reforms in personal laws, ASIANET NEWS (Nov. 7, 2020), https://www.asianetnews.com/pravasam/uae-announced-landmark-reforms-to-civil-and-criminal-law-qjfnmh