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Flashing your finger is no middling matter

Judges and lawyers say deportation should be optional in indecency cases

03 Gulf News

Dubai: Getting angry and picking a fight in a situation where your emotions get the better of you is not an uncommon predicament for people. For example, being wrongly overtaken on the road or forced to cut back in a supermarket queue can often make an individual see red.

And if in this state of anger, the person flashes his or her middle finger at another in public, they have crossed the line. This offence will get them deported.

As per the Federal Penal Law, deportation has been compulsory against those found guilty of flashing their middle finger in public for several years now.

Many cases have surfaced across the UAE courts, and continue to do so.

Gulf News spoke to a cross section of judicial entities on this aspect and they have recommended that deportation orders be discretionary in crimes related to dignity and honour in the UAE Penal Code.

Judges, lawyers and judicial bodies have recommended a list of amendments to be introduced to the pertinent law.

A cross-section of lawyers and judges have called for making the deportation order optional and not compulsory anymore in crimes related to public indecency and breach of modesty and honour.

However, they recommended that deportation remains compulsory in major crimes such as rape and molestation.

What judges say

Chief judge Ali Attiyah Sa’ad, a presiding judge at a Dubai Misdemeanours Court bench

“Unless legislators introduce new amendments to the Penal Laws ... deportation will remain obligatory and inevitable”

Chief judge Sa’ad says flashing the middle finger in public is an act punishable by the Penal Law that also obligates the presiding judge to hand out a deportation order against the defendant, once incriminated.

“A deportation order is mandatory and inevitable unless the suspect is pronounced innocent,” he told Gulf News.

Deliberating further, chief judge Sa’ad said flashing a middle finger, as per the aforementioned law, is considered ‘an indecent gesture in pubic and a crime related to breaching a victim’s pride, privacy and/or modesty’.

“Defendants, who are convicted in sex-related crimes, cannot avoid deportation and the law does not provide the judge with the discretion or option [on handing out a deportation order] … unlike in other crimes. Once a defendant is found guilty, it becomes mandatory to the judge to order that the convict be deported. It is true that flashing a middle finger is not a sex-related crime, but it is deemed as a crime that [impacts] on a victim’s pride and honour. Such crimes are treated with high vigilance due to its awfulness,” he explained.

The cassation and supreme courts in the UAE handed out several precedents and landmark rulings in which any form of public indecency — including the act of flashing a middle finger — has been considered and is treated as a crime of breaching a victim’s pride, honour and modesty.

“Since then, legislators amended the law and made it mandatory to a hand out a deportation order against the guilty. Unless legislators introduce new amendments to the Penal Laws, hence enabling judges with the discretion, things will remain the same … deportation will remain obligatory and inevitable,” he added.

Is flashing a middle finger in public a ‘serious and appalling crime’ that deserves deportation of the convicted?

Chief judge Sa’ad: “This issue depends on how and why the crime happened and the parties involved. Every criminal incident has its independent circumstances, different evidence and different involved parties. For instance, such a crime might happen between two men who indulge in a heated argument and one party flashes his middle finger to the other … this is not a very dreadful crime. Meanwhile, if a man flashes his middle finger to a woman, then this is an awful and terrible crime. Those are just two simple examples on the matter of how each crime should be treated differently … or in simple judicial language, each crime is treated individualistically. However, currently and as per the context of the law, deportation is mandatory in such crimes.”

Should the law be amended [to grant judges the discretion to deport or not a guilty defendant] on humanitarian grounds?

Chief judge Sa’ad: “Yes … because not all cases involving suspects, who flash the middle finger, are considered awful crimes. In several cases, there have been incidents involving suspects who flashed their finger under certain circumstances that could be deemed as a crime … but not a dreadful one. Let me give you an example. There have been cases in which an immoral behaviour [and not only flashing a middle finger] was committed … sometimes, judges hand out suspended imprisonments. Yet in those cases, the judge was obligated [by the power the law] to hand out a deportation order against those convicts. It is true that a judge suspended the punishment on leniency grounds, but the judge was still obligated to hand out a deportation against guilty defendants. To be honest, in such incidents, the deportation order is stricter and has a harsher impact than the suspended punishment itself. Hence, it would be more appropriate to suspend the deportation as well. That is mainly why I believe judges should be granted the discretion to decide when and whether a guilty defendant must be deported or not.”

What if someone flashed a middle finger in a closed place [not in public such as in a room or an office] in the presence of another witness? Would such behaviour be deemed as an indecent gesturing in public?

Chief judge Sa’ad: “Generally speaking, the law has granted judges the discretion to observe the act of incrimination and punishment. Each crime should be treated independently because no two crimes are alike. To reiterate, every single crime has different circumstances and evidence … and that is mainly and generally speaking why the punishment is always based on the judge’s discretion. Legislators have granted the judge the discretion on how and when to treat the defendant with leniency or not … we cannot set a certain crime [although not two crimes are alike] as a precedent and judge accordingly. That is why, when a judge studies the case file and evidence brought against a suspect, the judge builds up a certain belief and hands out the punishment deemed suitable.”

Senior chief appeal judge at Dubai Courts

“Deportation order should become optional to a judge due to humanitarian, social and emotional grounds ...”

“The compulsory deportation order has honestly kept a tight rein on us especially when we prosecute someone who committed an indecent gesture in public such as flashing a finger. The suspects who commit such an offence or crime aren’t a threat to society or as dangerous as rapists or molesters who deserve a deportation order.

“I would like to justify the recommendation to amend the Penal Law and make the deportation order discretionary due to many difficulties and complications that resulted since it became obligatory. Mainly, the deportation order should become optional to a judge due to humanitarian, social and emotional grounds … and sometimes educational and financial grounds.

Case study

A case in point was that of a company’s general manager, who indulged in a heated argument following a road rage incident, the judge said. The man flashed his middle finger in the face of the victim, who lodged a criminal case against the general manager. The latter was tried before the Dubai Misdemeanours Court and was sentenced to a month in jail followed by deportation. The defendant appealed the primary verdict and it happened that I was the presiding judge of the appellate court that handled the case. The defendant sought leniency and asked the court to cancel his deportation order … but unfortunately, nothing could be done.

“As per the Penal Law, the court was obligated to uphold the deportation order. It cannot be cancelled. The matter did not end there. His wife visited me at my office and begged me to do something … she cried and beseeched to reconsider. She even suggested that her husband spend a lengthy jail term but to cancel the deportation. The wife said that her husband sponsors her and their children, who are students … and that if her husband gets deported, then the family’s future would be ruined. Haplessly, nothing could be done and the family cancelled their residencies and left the country. The only thing that I, as a judge, did was suspend the husband’s imprisonment. That was just a slight example on why I call on legislators to reconsider this matter.”

Cassation judge

“I call on the lawmakers to reconsider the matter ...”

Judges are obligated to issue deportation orders against expatriate convicts even though cases were dropped and/or complainants had waived their complaints, the cassation judge said.

“Nevertheless, residents should have better control over their behaviour in public because, according to the Federal Penal Law, deportation is obligatory against those who are incriminated of committing an indecent gesture in public such as flashing their middle finger, kissing, cuddling or hugging. However, I do call on legislators to amend the current laws and grant the judge with the discretion to decide whether or not a convict deserves to be deported. We are the number one defenders of law and justice before the society. The current law binds us to deport any suspect who is convicted of committing public indecency. I am not calling for a complete cancellation for the deportation order, but before the 2005 amendments, the judge had the discretion to issue a deportation order, and I call on the lawmakers to reconsider the matter and grant the discretion to the judge.”

What lawyers say

A cross-section of lawyers, whom Gulf News interviewed, shared the judges’ opinion and urged legislators to stipulate amendments to the Penal Law granting judges the discretion to decide on deportation orders.

Dr Reyadh Al Kabban, Al Kabban and Associates Advocates and Legal Consultants

“In 2011, the Dubai Court of Cassation ruled that foreigners who flaunt their middle finger to others must be deported from the UAE for ‘committing indecent acts’ as per articles 121 and 358 of the Penal Code. This shows the conflicting battle between the traditional viewpoints and the evident modernity in the UAE. Such minor offences have proven to be burdensome, as this sort of claim costs the legal system a hefty sum of money that could be spent elsewhere. The progressions that have occurred in the UAE in the last 10-15 years, call for an update and organisation of the law to accommodate the change of the UAE to an international business hub,” he said.

There is an evident discrepancy between the offences committed, according to Dr Al Kabban, and the severity of the punishment, where those committing more serious crimes that affect the country’s economy get away with a few months in prison without deportation.

“Therefore, in relation to the compulsory deportation of expatriates committing such crimes classified as indecent acts, pursuant to articles 121 and 358 of the Penal Code, I recommend that the court judges be granted the authority to decide whether the circumstances and facts of the case justify the deportation of the accused or not,” he concluded.

Advocate Yousuf Al Bahar

“I am with the party who would vote for the amendment of concerned article of law to empower/authorise the judge to have the full freedom to impose or not to impose the deportation order ... in cases relate to insulting gesture … Because the UAE society (whether Emiratis or expatriates) are aware that UAE is a Muslim country that has unique traditions and culture based on respect, human dignities and morals. These principles are considered as general policy of Laws as per article (7, 30 and 44) of the UAE Constitution and article no 3 of Civil Transactions Laws as well as article 1 of the UAE Penal Code.”

Being an expatriate, one should obey and respect the general law, cultures and beliefs, he said.

“The act of flicking the middle finger is considered an offensive act that hurts the dignity of others whether he/she is Emirati or expatriate. Such act also violates the common principle of morals and respect society is based on. Though I am aware that deportation punishment may affect the defendant’s life as well as that of his/her family … I believe that individuals should, firstly, be aware that he/she has a family to take care of and that they live in a society which believes that everyone has dignity to protect and has the right to live in a civilised society where respect is mutual.”

Advocate Mansour Al Mazmi, Bin Mes’har and Co Advocates and Legal Consultants

“The legal text should be smoother so the judge can estimate how the circumstances of the incident [flashing the middle finger] happened and according to that the judge decides either to deport the criminal from the country or not.”

Advocate Abdullah Al Nasser, of Araa Advocates and Legal Consultants

“I agree that a judge should be granted the discretion whether a suspect, who flicks the middle finger in public, should be deported or not. A judge is the voice of the law and is granted this empowerment by the law itself to instil justness and fairness and maintain social balance.”

Previous criminal judge and current advocate Khalifa Al Salman

“I am strongly against the compulsory deportation order because it is very stiff against someone who commits an indecent gesture or behaves obscenely in public. “A deportation order is meant to expel a suspect from society when he/she becomes more harmful than beneficial to society.”

He called on lawmakers to stipulate laws that entitle judges to jail or fine a suspect who commits such a crime and grant them the discretion to issue deportation orders or not against expatriates.

“It is fair to say that a punishment shouldn’t be unified but rather be relevant to the severity of the crime.”

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Latest Comment

I would like to congratulate Bassam Za'za' for an excellent article. As an expat who has lived in Dubai for 5 years, after reading this article, I finally have learnt what constitutes a crime againsy someone's 'privacy, honour or dignity', and the reasons why a deportation order iscompulsory and a prison sentence is at the discretion of the judge. It was also interesting to hear from judges and lawyers about their support for a change in the law to allow the judge to decide whether a deportation order should be compulsory in such cases. Articles such as can only improve the understanding of expats and I would like to thank the author for investigating and explaining this issue. Keep up thegreat work.

Mike Murray

21 August 2016 15:42jump to comments
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