The Position of Shari'a Within the Uae Constitution and the Federal Supreme Court's Application of the Constitutional Clause Concerning Shari'a

Abstract

AbstractThe preceding Supreme Court decisions led to the following conclusions: firstly, although the Supreme Court in these decisions repeatedly insists that recourse to Islamic Shari'a is a matter of policy to be left entirely to the federal legislature, the Court repeatedly announced that all federal legislation should be derived from Islamic Shari'a. The Court thus adopted the Islamists position according to which any legislation violating the Shari'a dictates should be considered unconstitutional.66 Secondly, although, as mentioned, there was strong evidence of an apparent conflict between the Constitution and the laws dealt with by the Supreme Court in the aforementioned judgments, the Court was reluctant to declare the laws unconstitutional. This is accounted for by the Court's insistence on creating uniformity among these judgments. Greater conflict occurred between the Constitution and Articles 61 and 62 of Abu Dhabi Law than occurred between the Constitution and the Alcoholic Drinks Laws of Abu Dhabi and Sharjah. The fact that there was seen to be no conflict between the Constitution and Articles 61 and 62 naturally led the Supreme Court (for the purpose of creating uniformity among its judgments) to deny the existence of conflict between the Alcoholic Drinks Laws and the Constitution. Thirdly, the Supreme Court in interpreting and applying Article 7 of the Constitution in the judgments mentioned above, distinguished between civil and criminal matters. In answering the question of the legality of bank interest, the Court considered the application of the Shari'a as a matter of policy to be left to the legislature, and not for the judiciary to decide. Concerning the application of the Shari'a in criminal matters, the Court declared that the lower federal courts should apply the punishments prescribed by the Shari'a in Hudud offences. Indeed, practice in the UAE shows the application of Shari'a in the sphere of criminal matters only; it does not apply to commercial matters, especially in the case of applying interest in commercial law as proven by the Supreme Court in the Junatta Bank case. The roots of such a distinction can be found in the answer to the question, why was the application of Shari'a rules regarding Hudud offences made obligatory by the Supreme Court, while the application of the Shari'a rules affecting bank interest was not? The probable answer is that the Supreme Court has shied away from applying the Shari'a where it would threaten orderly economic development and the modernisation of its institutions.67 The application of Hudud punishments, by comparison, threatens no such disruption.