A tribute to the UAE Federal Supreme Court on its 40th anniversary

Last week’s celebrations of the 40th anniversary of the Federal Supreme Court represent an opportunity to reflect on the ever increasing role of the Federal Supreme Court (FSC) in clarifying and consolidating the principle of the rule of law in the UAE. Under the UAE Constitution, the FSC is vested with the power to adjudicate on the constitutionality of federal and local laws and its willingness to use these powers was ably demonstrated in its latest constitutional judgement delivered on April 22, 2013.

The judgement was in response to an appeal, which alleged that a local decree (the ‘Decree’) was unconstitutional because it denied the appellant’s right to unfettered access to the civil courts of the country.

The Decree in question provided that a claim against the local Government concerned or any of its departments had first to be submitted to the Chairman of the Judiciary department, who in turn was obliged to review the claim and issue a recommendation for amicable settlement or, alternatively, to forward the claim before the court of competent jurisdiction.

The FSC ruled in favour of the appellant, holding that the Decree ‘impinges on the right of the people to be equal before the law in seeking justice through the country’s courts’. In doing so the Decree breached the provisions of four Articles of the Constitution of the Union.

In reaching its conclusion, the FSC laid down certain principles which, when looked at cumulatively, clearly recognise the primacy and pre-eminence of the doctrine of the rule of law. Examining these principles also highlights the vital importance of this doctrine for the nurturing and development of our legal and political systems within the parameters of a federal state.

Firstly, the supremacy of the constitution in a federal state is a fundamental principle typically enshrined in constitutions around the world. Article 151 of our Constitution ably provides for this. This constitutional principle plays a cardinal role in a federal state, such as the UAE, for two interlinked reasons: first, it safeguards the conditions subject to which the “people” conceded to the Union and, secondly, it contributes, to a large extent, to maintaining the constitutional balance between the powers of the federation and those of the individual member Emirates.

In recognising the crucial need to maintain this constitutional equilibrium the FSC observed: “The Federal Constitution represents the will of the Emirati people and their Rulers as declared in its preamble … and that our Federal laws are promulgated upon their ratification by the Supreme Federal Council, which also in itself represents the general consensus amongst the Emirati People.” The FSC then concluded that “the will of the Emirati people is the cornerstone of the supremacy of Federal legislation”.

Secondly, for the first time in its history the FSC explicitly held that “no rule or order shall be above the Constitution and the right to seek justice through the ordinary judicial system is a constitutional right that cannot be fettered or restricted”. In doing so it confirmed the supremacy of the right of access to the courts. The FSC further observed that “the right to litigate, in its essence, belongs to the people who are entitled to exercise it equally in their quest for defending their rights. It is not permissible to discriminate between people in respect of their right to have access to their ‘natural judge’, or to invoke the procedural or substantive rules governing litigation, or to defend their claims before the courts”.

The FSC further observed that the right to have unrestricted access to the normal civil justice and the legislator’s mandate to regulate the use of such right must not involve introduction of any restriction or discrimination. “The Emirati law in question differentiates between litigating parties, in respect of resort to courts, and this in itself constitutes a fundamental breach of the principle of equality before the law and a hindrance to the right to litigate”.

Finally the judgement reinforced the absoluteness of the right to adjudicate disputes. The FSC relied, principally, on two reasons for annulling the Decree in question. First, it was a local decree that partly imposed restrictions on adjudication of claims before courts; such restricting procedures are not found in the Federal Civil Procedures Law.

The second reason declared by the FSC was that “such restriction results in discrimination and [creates] inequality amongst people who have equal rights before the law”.

It is therefore apparent that the FSC holds the view that such restrictions, whether imposed by local or Federal law, will be held to be unconstitutional. This is a welcome development that will certainly invoke legal debate over the sanctity of several provisions in many existing Federal and local laws.

Dr Faraj Ahnish is Managing Partner, Hadef & Partners.