x Abu Dhabi, UAESunday 23 July 2017

Defining Sharia's role in the UAE's legal foundation

Sharia law is far more flexible and open to interpretation than many people assume.

Sharia plays an important role in UAE law, but misinterpretations about how it is applied are common. As a result, residents who come to me seeking legal advice are often unclear of the role that Sharia plays in UAE law.

To understand the intersection of Islamic and non-Islamic law, it helps to first know what the founders intended. The UAE constitution states: "Islam is the official religion of the Union and ... Islamic Sharia is a main source of its legislation".

Simple enough. But in cases where specific legislation has been introduced to the contrary, especially with regard to the UAE civil code, the legal distinction becomes a bit harder to understand. Although Sharia is an important source of guidance shaping the nation's law, it is not the only source.

When advising clients, I always inform them that UAE courts will pass judgment according to Sharia in the absence of a provision of UAE law covering the issue on which they are in front of the courts. That said, the federal government has been successful in its attempt to blend the interpretation of Sharia with the customs and policies of non-Muslim expatriates while, at the same time, maintaining the integrity and values the founders intended.

To be sure, a certain degree of interpretation is required. But while the UAE's merging of Sharia law and man-made law is unique, I believe it is also prudent.

Consider the courts' interpretation of family law. The UAE mandates that Sharia is used as the primary legal justification on matters involving family legal issues. But the UAE personal status law, which covers marriage, divorce and succession, also states in Article 1 that "the law shall apply to all UAE nationals except where non-Muslim UAE nationals have special rules relating to their specific creed or sect".

What's more, Article 1 adds that the law will apply to non-UAE nationals as well, unless they choose their own law.

Elements of the nation's criminal code offer similar distinctions. For instance, payment of blood money in the event of a death or injury is allowed according to Sharia. Crimes such as the desertion of Islam, fornication, murder, theft, adultery and homosexuality - all crimes classified as "Al Hudud" in Arabic - are punishable by predetermined penalties (flogging and arm amputation among them).

And yet some emirates have suspended Al Hudud provisions pursuant to their rulers' decrees and replaced the Sharia penalties with jail terms and fines as determined by the law according to each case respectively.

Islamic law applies to the business sector as well. For instance, the UAE has enacted legal provisions aimed at eliminating exploitation in business transactions, prohibiting unjustified enrichment and banning transactions that contain excessive risk or speculation.

More specifically, UAE Federal Law No. 5 of 1985 concerning civil transactions recognises this unjustified enrichment prohibition principle (as stated in Article 714).

Three Sharia principles form the benchmark of Islamic economics. These are the prohibition of interest (Riba), profit and loss sharing (PLS) and Gharar (uncertainty and speculation). These three principles have created the opportunity for Islamic finance to thrive and flourish in the UAE.

At the same time, federal officials are working on establishing a higher Sharia council to supervise the state's Islamic finance sector, replacing the existing civil code law provisions in relation to Islamic finance.

It is important to point out that Sharia is not a rigid and immovable "law of God" based on unchanging texts written in the Middle Ages, as some people may believe. Understood and applied correctly, Sharia is in fact an eminently flexible, dynamic jurisprudence system that is fully compatible with modern legal frameworks and contexts.

It must also be understood that when we say that Islam has a satisfactory solution for every problem emerging in any situation in all times to come, we don't mean that the Quran and Sunnah of the Prophet, or the rulings of Islamic scholars, provide a specific answer to each and every detail of our socioeconomic life.

What we mean is that the Quran and the Sunnah have laid down the broad principles in the light of which scholars have deduced specific answers to new situations, a decision-making process called Ijtihad. This process is supposed to be ongoing, injecting new ideas, concepts and rulings into the heritage of Islamic jurisprudence.

Principles of democracy and freedom are inherent principles of Islamic law. Denying people such rights based on false allegations is neither fair to the public or Sharia itself. Instead of holding Sharia guilty for failures to adopt the progressive science of interpretation of Islamic laws, lawyers and Sharia scholars should cooperate and work together to develop laws within the system we have.

Understanding this system, from the lay and legal perspectives, is the first step.

 

Diana Hamade is an Emirati lawyer based in Dubai