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Ambiguity and Conflict in the Implementation of Evidence Law in Criminal Matters: a Study of the United Arab Emirates Jurisprudence

Asian Journal of Criminology Aims and scope Submit manuscript

Abstract

Due the lack of the law of evidence in criminal matters in the United Arab Emirates (UAE), it is important to address the issue of the rules of evidence in the UAE where Sharia criminal law is applied along with enacted law of Criminal Procedural Law. The courts’ decisions contradicted each other because of the differences of opinions among the law schools exist in Islamic law in one hand and between the Sharia criminal law and enacted law in the other hand. Further, the Criminal Procedural Law does not state the rules of evidence in clear manner to judges and individuals. The lack of stated rules and procedures and what evidence could be accepted and what cannot are not definite in the UAE legal system. The article will argue that because of the differences in the opinions related to the admission and acceptance of the evidences exist among the Islamic law schools and between the Sharia law and enacted law, the court decisions have contradicted each other and create ambiguities in the field of the evidence in criminal law. The Islamic jurists have different opinions about evidence in fornication crimes, Qasama evidence in qisas, and women and non-Muslim testimonies. Such differences affect the Union Supreme Court decisions. Therefore, the UAE legislator must enact the law of evidence in criminal matters in order to reduce the contradiction between judges’ opinions, clear ambiguities, and protect individual rights as it did with civil and commercial matter.

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Notes

  1. Hudud (singular is hudd) means certain crimes have fixed punishments in Islamic law. These crimes are fornication, false accusation of adultery, theft, robbery, drinking, and apostasy. These crimes have fixed punishment which cannot be changed or forgiven if any one proved before the court.

  2. Qisas means homicide or murder. There are three types of homicide in Islamic law: intentional homicide, semi-intentional homicide, and accidental homicide.

  3. Restricted method appeared in the criminal legal system after decades of apprehensive and arbitrary decision in Roman Empire. The method existed in order to reduce oppression and control rulers and judges alike. Most of the European countries adopted such method and then moved to the unconditional method.

  4. Some argue that circumstantial evidence is not admitted in Islamic criminal law. See Schacht and Joseph. An Introduction to Islamic Law, p. 193. The statement of the author is correct regarding the hudud and qisas but is invalid in discretionary crime where judges have the power to use any circumstantial evidence in tazir. See Johansen where he refutes the claim of Schacht and others, Johansen, and Barber. Signs as evidence: the doctrine of Ibn Taymiyya and Ibn Qayyim al Jawziyya on proof, Islamic law and society, vol. 9, 2001–2002, pp. 168–193, pp. 173–174.

  5. Ibn al Qayyim, Ealam, vol. 2, p. 150, Ibn al Qayyim is the one who advocates most of such opinion.

  6. Appeal No. 52 of 16 years, Sharia Circuit, dated December 17, 1994.

  7. Pregnancy as proof of fornication will be discussed later.

  8. This same approach is found in Law No. 3 of 1987 (“Penal Code’”), which states that “Sharia law applies in crimes of hudud (fixed punishment) and qisas (retaliation). Crimes and punishments other than hudud and qisas are defined according to this law.”

  9. See USC decision, Appeals Nos. 271, 328, and 343 of 26 years, Criminal Circuit, issued on October 15, 2005. The court states that “the court has full authority to understand the facts of the case and evaluate the evidence as it seems reliable.”

  10. In Maliki School, the fornication crime can be proved by pregnancy and drinking alcohol can be provided by smell. The pregnancy as an evidence for fornication crime will be discussed later. See USC decision in Appeal Nos. 120 and 127 of 19 years, Criminal Circuit, issued February 14, 1998.

  11. USC decision, Appeal No. 98 of 22 years, Criminal Circuit, issued on March 24, 2001.

  12. See USC decisions, Appeal No. 25 of 16 years, Criminal Circuit, issued on May 28, 1994 and Appeal No. 52 of 16 years, Criminal Circuit, issued on December 17, 1994. Two appeals mentioned in Alhammadi, Al Mutawal fi Qadaa al Hudud wa Qisas wa Deya, 2009, pp. 684 and 686.

  13. The Federal Law No. 14 of 1995 concerning the deterring of drug and mind-effect substance, published in UAE Official Gazette, No. 285, October 1995. Moreover, before the issuance of that law, the Law No. 6/1986 had been issued concerning the drug trafficking. This law has been amended to be the Law No. 14/1995. The intent of legislation is to treat drug offense as discretionary crime and not hudd.

  14. Article 48 of drug law provides “without prejudice to Article 39 (taking drug), person shall be punishable by imprisonment no less than 10 year and no more than 15 year and the fine no less than 50,000 Dirham and no more than 200,000 dirham if he violates Article 6 (possess and produce drug), A35 (plant specific substance), and A36 (produce, possess, export, or import specific substance), however, if these crimes occur with intention of trafficking, the punishment shall be the death penalty.”

  15. The Sharia Jurisdiction Law applies the Islamic criminal law under the jurisdiction of the Sharia court in hudud, qisas, drug, and juvenile crimes.

  16. Articles 1 and 2 of the Law No. 3 of 1996.

  17. Appeal No. 5 of 20 years, Sharia Circuit, decided on June 13, 1998.

  18. See Appeal No. 5/1998.

  19. Appeal Nos. 11, 15, and 16 of 20 years, Sharia Circuit, decided on November 14, 1998.

  20. There is a mistake in the judgment regarding the article, in the judgment the article mentioned is 281 instead of Article 218.

  21. Appeal No. 38 of 22 years, Sharia Circuit, decided on May 6, 2000, and Appeal No. 37 of 22 years, Sharia Circuit, decided on May 20, 2000.

  22. Ibid.

  23. Appeal Nos. 197 and 286 of 23 years, Sharia Criminal Circuit, decided on April 5, 2003.

  24. Under Islamic law, sexual intercourse is allowed only within marriage and extramarital intercourse is unlawful and constitutes a punishable offense. Fornication or Zina in Arabic is a hudd crime. Fornication is punished by death through stoning, if the offender is muhsan (i.e., adult, free, Muslim, and one who has previously experienced legitimate sexual relations within a marriage, regardless of whether the marriage still exists) with a person who is also muhsan. A person who is not muhsan is punished with 100 lashes, which is followed by banishment for 1 year. The offender must have acted of their own free will; thus, a woman who has been raped cannot receive the hudd punishment.

  25. The law of evidence in civil and commercial matters of 1992 states in Article 6 that the court shall apply the best opinion from Maliki and Hanbali schools in case it does not find a provision in the evidence law. In case the court does not find an opinion in the two mentioned schools, it has a right to choose and appropriate opinion in accordance with the interest of the case. Even thought that such article apply in civil and commercial matters, opinions in one school are vary, you may find several opinions in Maliki school or Hanbali school are different from each other since jurists have different legal reasoning and minds.

  26. USC decision, Appeal No. 178 of 23 years, Sharia Criminal Circuit, issued on June 22, 2002.

  27. For example, see Appeal No. 98 of 22 years, Sharia Criminal Circuit, issued on March 24, 2001.

  28. See Appeal No. 353 of 27 years, Sharia Criminal Circuit, issued on March 18, 2006, and Appeal Nos. 499 and 547 of 27 years, issued on November 28, 2006.

  29. It has been related on the authority of Ali ibn Abi Talib, the fourth caliph that he said to a pregnant woman: “have you been raped?” She said: “No.” Then he said: “perhaps a man came to you in your sleep.” Similarly, it has been related from Umar ibn Al-Khattāb, the second caliph, that he accepted the statement of a woman who claimed that she was a heavy sleeper and that a man came to her at night but that she still did not know who he was (Sabiq 1990, Peters).

  30. Appeal No. 6 of 22 years, Sharia Circuit, decided on June 10, 2000.

  31. The principle of avoiding hudd punishments is supported by the sayings (hadith in Arabic) of the Prophet, peace be upon him. The first hadith provides that it is better for the authority to err in exonerating than in punishing and the second hadith provides that “averting prescribed punishments (hudud) when ambiguities persist.”

  32. This is the opinion of Dr. Mohamed Al Shinqiti. He wrote an article about Al Turbai and his opinions, http://www.fiqhsyasi.net/turabi1-2.htm. On October 24, 2007, I sent him an e-mail requesting some clarification about the disagreement between jurists, and whether it constitutes doubt. His answer is provided above.

  33. Appeal No. 32 of 13 years, decided January on 15, 1992.

  34. The defendant can retract from his confession if the case involves the right of Allah; however, according to majority opinion, his retraction will not be accepted if the case involves the right of individual.

  35. Appeal No. 32 of 14 years, Criminal Circuit, decided on May 23, 1992.

  36. I only mention opinions of jurists without referring to their sources from Quran or Hadith. I am also not going to argue about preferred opinion and which one must be supported. My intention as mentioned earlier is to show the difference between jurists and how such differences without any legislation guidance lead to different implementation by courts.

  37. Appeal No. 294 of 25 Judicial Year, Sharia Criminal Circuit, issued on March 26, 2005.

  38. See also USC decision, Appeal No. 279 of 2011, Criminal Circuit, issued on April 8, 2013. The court adopted the same opinion issued in 2005.

  39. Appeal No. 283 of 28 Judicial Year, Sharia Criminal Circuit, issued on May 8, 2007.

  40. In fornication crimes, some jurists ask for four witnesses.

  41. However, the testimony of a woman will be allowed in the civil case if it is corroborated with a man testimony provided that two women are equal to one man.

  42. Appeal No. 37 of 5 years, Criminal Circuit, decided on November 7, 1983.

  43. Appeal No. 37 of 5 years, Criminal Circuit, decided on November 7, 1983.

  44. Dubai Cassation Court, Appeal No. 237 of 2007, criminal case, issued on July 9, 2007.

  45. USC decision, Appeal No. 153 of 23 years, civil Sharia Circuit, issued on January 11, 2003.

  46. See also the Dubai Cassation Court decision in Appeal No. 14 of 2005, criminal case, issued on March 19, 2005 where the court accepted the testimony of non-Muslim after the defendant argued otherwise.

  47. In Appeal Nos. 123, 126, and 128 of 12 years, Criminal Circuit, decided on February 27, 1991. In the latter appeal, the FSC held that “It asserted that the court does not consider rape as hudd crimes and therefore, it has a right not to follow the evidence of Islamic law. The court does not apply hudd punishment but it applies discretionary punishment and in this event it has a right to build its conviction and rely upon any evidence that support the case. The testimony of a non-Muslim in tazir crimes is admissible since we are not dealing with hudud crimes. Such a thing is in accord with Imam Malik doctrine.”

  48. The author states that “the testimony of non-believer shall not be accepted because the Quaran sees “…………” the non-believer is not one of the Muslims.

  49. The author declares that “the evidence of an accomplice is not admissible against his co-accused unless it is corroborated with independent evidence.”

  50. USC decision, Appeal No. 153 of 23 years, civil Sharia Circuit, issued on January 11, 2003.

  51. Appeal No. 7 of 20 years, Criminal Circuit, decided on January 6, 1999.

  52. The author indicates that the testimony of relatives and defendant shall not be accepted because of the suspension, and therefore, their testimonies would be unreliable.

  53. This conclusion is not generally in keeping with the Maliki legal school, but has been accepted by one scholar, Ibn al Qayyim, who declared that there is nothing in the verses of the Quran that rejects the testimony of near relatives for each other.

  54. Appeal 146 of 20 years, Sharia Circuit, decided on October 23, 1999.

  55. Article 256 of the Criminal Procedure Law provides “The Attorney General shall, directly or upon a written request of the Minister of Justice, challenge in cassation, in favor of the Law, the final judgments, regardless of the court that rendered it, in case the challenge is based on a violation, misapplication or misinterpretation of the law, in the following two instances: (1) Judgments which the law does not allow the parties to challenge. (2) Judgments in which the parties have allowed the time limit set for challenge to expire, have relinquished their right to challenge or have filed one but it was not accepted.”

  56. Appeal No. 257 of 21 years, Sharia Circuit, decided on April 22, 2000.

  57. USC decision, Appeal No. 76 of 2013, Criminal Circuit, issued on January 27, 2014.

  58. This approach was also adopted in Appeal No. 479 of 27 Judicial Year; the USC stated that “it is a well-established principle in Islamic jurisprudence that the testimony of adversarial party on each other, testimony of rival and envier shall not be accepted.” See also Appeal No. 240 of 28 Judicial Year.

  59. USC decision, Appeal No. 108 of 1991 years, Sharia Circuit, issued on November 28, 1992.

  60. USC decision, Appeal No. 310 of 25 Judicial Year, Civil Circuit, issued on January 2, 2005. See also USC decision, Appeal No. 82 of 26 years, Sharia Criminal Circuit, issue on January 8, 2005.

  61. See Article 7 of the Constitution.

  62. See Article 75 of the Federal Law No. 10 of 1973 concerning the USC which requested from the court to apply the Sharia law and other federal laws.

  63. See Article 8 of the Federal Law No. 6 of 1978 concerning the establishment of the federal courts.

  64. In civil and commercial transactions, the legislator of the UAE has issued a Law No. 10 of 1992 concerning the law of evidence in civil and commercial transactions. However, there is no law concerning the criminal cases.

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Alhammadi, M.S. Ambiguity and Conflict in the Implementation of Evidence Law in Criminal Matters: a Study of the United Arab Emirates Jurisprudence. Asian Criminology 11, 155–178 (2016). https://doi.org/10.1007/s11417-015-9225-y

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