x Abu Dhabi, UAEFriday 24 November 2017

Punishment is an art that UAE courts can't always master

Public concern about apparently-strange sentencing in some court cases is largely based on a misunderstanding of how the system really functions.

Sentencing decisions that send people to jail, or otherwise restrict their liberty, are always of public interest. But in the UAE language barriers can give the diverse public a distorted view of the justice system; some people go so far as to question the system's integrity.

People expect even-handedness in sentencing, but sometimes the public's misunderstanding of the criminal justice system creates an impression of unfair treatment.

In all societies, punishment is an art - intended to combine retribution, rehabilitation, incarceration and deterrence - aimed at penalising those who violate the boundaries of social cohesion.

Incarceration, among the severest form of punishment, is commonly used in the UAE as a deterrent, to dissuade other potential criminals from committing similar acts by making them aware of the punishments. But because court-imposed punishment comes in many forms, from a small fine to a life sentence or even death, careful consideration must be given to determine which penalty fits a given crime.

In issuing sentences, judges consider several factors: these include the effect of the crime on society, the events leading up to and pertaining to the crime, and the social, environmental and mental condition of the convicted person, as well as the culprit's record.

In some recent cases, sentencing decisions have come under question from members of the public who consider the terms unfair. In one case, a person who insulted Islam was sentenced to two months in jail, which some considered too harsh. In another, a one-month sentence and a Dh1,000 fine were imposed on three young Emiratis who had attacked a pregnant woman; that sentence was seen as too lenient.

In fact, it is only the public's lack of understanding of the criminal justice system and legal code that causes such sentences to be labelled as just or unjust.

For a given offence, maximum and minimum sentences are spelt out in the penal code, but the exact sentence in each case within that range is left to the discretion of the judge. Judges review the individual characteristics of each criminal - from their state of health to their social environment - and then analyse the level of effect the crime had on society. By developing an understanding of these factors, a just sentence can be determined based on intent, effect and precedent, meaning the sentences are comparable to those in previous cases.

Yet determining sentences is not a simple task, no matter the crime. So public confidence in the courts' fairness can be won only if the public comes to comprehend more fully the factors that judges are duty bound to take into account.

UAE Federal Law Number 3 of 1987, promulgating the penal code, was intended primarily to be in line with Sharia's precepts. But in a way it secularised these precepts by distinguishing, in Article 1 of the law, between Al Hudud and Al Qasas (which are Sharia preset penalties) on one hand, and on the other hand Ta'azir offences which are criminal sentences prescribed by the law. As such, the UAE legal code has some flexibility in determining sentences using both Islamic and non-Islamic law.

However, the UAE penal code still needs to settle on sentencing norms for new types of crime that evolve as time goes by.

For instance, legal provisions must keep pace with changes in society to handle newer crimes and issues, from Sharia sentences to cyber crime. On both substance and procedure, our current penal code can no longer cope with the diversity of issues that face this country.

The last adequate revision of the country's penal code was in 2002, when the Federal National Council (FNC) approved 33 amendments to Federal Law Number 3 of 1987. The amended version stipulates rigorous penalties in many cases, but moderates punishments in certain instances.

There is also a need to better educate and inform the public about how sentencing guidelines work. Citizens report that the news media are their primary source of information about the court system, even more important than direct contact with the courts. With the general public relying primarily on the media for information, it is necessary to examine what is being reported, and the coverage of both sides of each story.

Journalists must select and report stories from the large universe of criminal cases and other information about the criminal justice system that they think will capture news consumers' attention. Unfortunately, in deciding what to cover the media will not typically select routine cases but the more salacious. Media stories become reference points by which the public forms its opinion of the criminal justice system. The point is that the media can sometimes be responsible for flawed perceptions of how the system works.

Nonetheless, in the UAE, as anywhere, policymakers must continually focus on how best to reform the criminal justice system to reflect the needs of an ever-changing society.

 

Diana Hamade is an Emirati lawyer and legal consultant. She is the founder of International Advocate Legal Services in Dubai