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The States of the GCC: Sources of Law, the Shari'a and the Extent to Which It Applies Author(s): W. M. Ballantyne Source: Arab Law Quarterly, Vol. 1, No. 1 (Nov., 1985), pp. 3-18 Published by: BRILL Stable URL: http://www.jstor.org/stable/3381669 Accessed: 07-09-2015 10:17 UTC

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THE STATES OF THE GCC: SOU'RCES OF LAW, THE SHARI'A AND THE EXTENT

TO WHICH IT APPLIES

W M Ballantyne

MA (Cantab), Barrister

This article seeks to give a brief outline of the bases of jurisprudence in the States of the Gulf Co-operation Council: Bahrain: Kuwait: Oman: Qatar: Saudi Arabia: The United Arab Emirates.

The Shan'a runs like a golden thread through the jurisprudence of the Gulf States. In this article we shalI consider the sources of that jurisprudence and one of our main tasks will be to assess the extent of the role played by the Shan'a in each Gulf jurisdiction. In confronting any legal problem, perhaps the first question to be asked is: to what exent, if at all, does the Shan'a affect the matter? The answer may vary from 4'not at all" in a problem falling within the Commercial Code of Kuwait to "basically" in a problem in Saudia Arabia, while in the other jurisdictions, the answer may be somewhere between these extremes. Overall, we must record and always bear in mind the uncertainty engendered by the looming presence of the Shan'a which should be one of the factors to be borne in mind in weighing the benefits and risks of any commercial contract in the Islamic countries.

A comparative approach is essential in this area. Not the least reason for this is the lacurlae which exist in the codified law. It may be said that in this respect the need to resort to general principles increases in inverse proportion to the quantum of specific substantive law or specific conflict rules) as the case may be, which is available. We therefore have to consider the sources of law prescribed in the various codes, where we shall find, as might be anticipated, that the legislator has given to the judge in many cases the right, in fact the obligation, to supplement codified provisions or to introduce principles where such provisions do not exist.2

The Constitutions form the backdrop to all legal considerations7 and the role of the Shari'a as prescribed by these Constitutions as a source of law is important.3 I would like to stress the essentiality of ascertaining at the outset the basic corlstitutional position: this is true both where a detailed constitution is laid down in writing, as in Kuwait) Bahrain, Qatar and the UAE; where it is prescribed also in writing but in broad principle as in Saudi Arabia; and where it is unwritten, as in Oman.

Saudi Arabia

We may deal briefly with Saudi Arabia where we find the Shan'a as the source of law 1 The material in this article formed the basis of a lecture in the series '4Comparative Commercial Law

in the Middle East3 delivered by the author to the LLM course at the School of Oriental and African Studies, University of London.

2 Quotations from the various codes in this article are my own translations from the original Arabic. 3 Kuwait, Bahrain, UAE: "a principal source of law"; Qatar: "the principal source of law'5.

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4 ARAB LAW QUARTERLY

on an almost unalloyed basis. There is a parallel body of secular "Regulations" to which, due to the sensiiivity of the Culama', the word "law" cannot be applied: these would in my view be void if contrary to express provisions of the Shan'a. In this connection, we recall the writings of Ibn Taymiya of the Hanbali School, (the School applying in Saudi Arabia) and his teachings that laws are valid unless expressly forbidden in the fiqh.

Oman

Touching also briefly on Oman here, because it, too, falls outside the pattern of our other jurisdiciions and indeed outside the pattern in the Middle East generally, we find the Sultan at the head of the hierarchy, relying upon the Shan'a of the Ibadi School.4 However, reference to Oman must be qualified in this respect, because it certainly legislates sub nomine "laws" and in such codes as the Banking Law arld the Commercial Companies Law for example we find that the Shari'a has for several years been by-passed to an extent which we do not find in Saudi Arabia.s

The picture needs to be updated to take account of the promulgation of the new "Procedure for Hearing Cases and Applications for Arbitration before the Authority for Settlement of Commercial Disputes". The creation of the new Authority will be discussed more fully in future issues of the ALQ, but it will be noted here that it has wider powers than its predecessor, the Committee for the Settlement of Commercial Disputes. The sources of law to which it is referred in issuing its judgments are, however, little changed.

Article 44 of Sultani Decree 32 of 1984 prescribes: . . . decrees and laws in effect in the Sultanate; contracts between the litigants provided that such do not conSict with the laws, public order or morals; established and observed customs in the field of commercial activity; and that which will achieve justice between the adversaries and lead to stability in commercial transaciions.6

Here we note the authority which the written law of Oman, in common with the other codes which we shall consider, ascribes to the contract between the parties: the principle of pacta sunt servanda, a principle which the Shari'a subscribes.7 It may be thought that the latter two dictates of Ariicle 44 confer considerable latitude upon the Authority, although, again, the ever present backdrop of the Shan'a must be constantly adverted to.

Kuwait

Kuwait took a bold step by establi>,hing in 1961 a secular system of commercial law.8 That coniinued to be the situation until 1977 when, in response to the general

4 See Anna Monico, "Oman" in Proceedings of the Seminar on Middle East Law IBA, 1981, pp. l35 et seq.

S Op. Cit. pp. 148 et seq. for a good overall statement of the situation. 6 Oman Official Gazette 286/1984. 7 Note the provisions of the Omani Banking Law which appear tO confer upon contracting parties the

right to choose both jurisdiction and law. 8 Kuwaiti Commercial Code, Law 2 of 1961.

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THE STATES OF THE GCC: SOURCES OF LAW s

reassertion of the Shan'a in the area, Kuwait set up a committee to review the laws in the light of the Islamic law. Tswo results of this were the new Civil and Commercial Codes, which took effect in 1981. Kuwait is currently reviewing its Constitution in the light of the Shari'a and of course the burning question is whether it will make the Shan'a the source of law.

It is relevant in this connection to consider the confusion occasioned when Egypt took this step in the latter days of the Sadat regime. Egyptian judges at that time did not know whether to give effect to the change directly, or whether to await legislation-the predominant problem, as always when one is concerned with the Shan'a, being banking interest. The immediate effect in the Courts was that each judge acted according to his own judgment, resulting in conflicting judgments, until the Court of Cassation took the unprecedented step of sending a circular which stated that a constitutional change did not necessitate any change in the practice of the Courts in this respect unless and until subsidiary legislation was passed dealing with the subject. This perhaps dubious directive points at the quandary which such States face when they have to measure their current stage of legal and economic development against the Shari'a. It may perhaps be argued that it is not conclusively significant whether the Constitution states the or a principal source of law; but it surely must be significant when a change is made from the latter to the former. If a law, particularly a basic law, is changed, then it is assumed that the amendment was intended to produce some effect.8a

Article 1 of Law 67/1980 issuing the Kuwaiti Civil Code finally expressly abolishes the Majella, the Ottoman attempt to codify the Hanafi School of Islamic Law. Law 67/1980 also repeals other laws, but these are not germane to our present topic.

Article 3 of the new Civil Code is however extremely relevant. By this Article, the Civil Code as a general law is expressed to be without prejudice to specific legislation; in other words, the Civil Code lays down the general pattern of the law but specific laws take precedence. This Article's full significance becomes immediately apparent in that one specific law, indeed the very next one to be promulgated in Kuwait7 is the Commercial Code. The cogent point here is that, although the Civil Code includesr as we shall see, many Shari'a provisions, the Commercial Code is nevertheless able to preserve commercial transactions to a large extent from incursions of the Shari'a.

One outstanding example lies in the matter of nba or more specifically here, interest on loans. This is, of itself, a large and difficult subject with which I hope to deal in a later article; it suffices to note here that while Article 5479 of the Civil Code expressly provides that kwans shall be free of interest, the Commercial Code as a "special" law allows interest on "commercial" loans and indeed contains detailed provisions as to its regulation 10

Article 1 of the Civil Code itself warrants translation in full: l(l9Legislaiive provisions apply to the matters to which such provisions relate both expressly

and by implication. 8a See the recent Egyptian judgment in Rector of Al Azhar v. President of the Republic and others) 4 May

1985, a translation of which is published in this issue at p. 100, infra. 9 Article 547: "Loans shall be without interest". See also Article 305: "Any agreement providing for

interest in respect of the use of an amount of money or delay in performance of an obligation shall be voidb'. 10 Commercial Code, Articles 101 et seq.

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6 ARAB LAW QUARTERL Y

Here we have a typical civil law approach to construction of a statute: quite simply, if by implication the provisions apply to a situation, then they should be applied.

1(291f there is no legislaiive provision, the judge gives judgment in accordance with Custom. If there is no Custom, the judge deduces his opiriion taking guidance from the dictates of the Islamic jurisprudence (fiqh) most in accord with the reality and interests of the country.

"Custom7' here is "Curf' not "aada7' (that is to say it is custom with a capital "C') and 'ideduceX' is "idtahada" which is used to express the classical concept of deduction of a (legal) conclusion in the Shan'a).

On the face of it, if this is a hierarchical structure, a pyramid of authority, then Custom may apply even if contrary to the dictates of the Shan'a, inasmuch as the latter is a not the main source of law. We recall again the reasoning of Ibn Taymiya that where legislation or custom is not contrary to the Shan'a it may be applied-bearing in mind however that Ibn Taymiya was a Hanbali not a MXaliki. However, if or when the Constitution of Kuwait is changed to make the Shari'a the main source then, in order to give significance to the change, in my view it mllst be interpreted to mean the exclusion of Custom which conflicts with the Shara'a. It may be added that the learned commentator on the Civil Code regards the latter as already being ehe correct view of Kuwaiti law, even on the present wording of the Constitution. His Commentary is a learned piece of analysis which we must study in some detail because of its relevance not only as far as Kuwait is concerned (it is published with the Code and thus has legal force), but because it expounds on gexleral principles which are irnportant for other Arab countries as well. There is a general Introduciion which confirms that the Civil Code sets out the general principles which were totally lacking in the Majella. It may be recalled that the general definitions in the Introduction to the Majella are very abstruse-in English, they often mean very little even in Judge Hooper's first-class translationl°a and the comrnentator to the Kuwaiti Code suggests that they belong not to enacted legislation, but to learned works on Islamic jurisprudence. He then points out that although such general principles are not missed when there are already established general principles, or specific laws which fill the gap (he cites the priority of legislation over other sources of law, and the principle of non-retroactivity of laws, which is enshrined in the Constitution)) yet there are many situations where all is uncertainty, and which demand a codified background of general principles.

Proceeding to the prescribed sources themselves, the commentator opines that it goes without saying thae Custom must not offend what is best translated as 'spublic policy or morals" ("al-nitham al-C aam wa husn al-aadab"). He then states:

Customs ("Caadat" i.e., with a small "c") which contradict the social, political economic or moral principles upon which the community rests, can never be elevated to the rank of Custom (curf) even if of long duration; in a country such as Kuwait, whose religion is by the Constitution Al-Islam, it is not possible that anything which contravenes one of the bases or established precepts of Islam should constitute Custom.

IOa The Civil Law of Palestine and Trans3rordan: Vol. In The Mejelle (London: Sweet & Maxwell, 1938).

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THE STATES OF THE GCC: SOURCES OF LAW 7

Thus, it will be seen that we have a controversial point here, when the wording of the Constitution is compared with the Commentary to the Civil Code-a point which may become even more controversial in the future. Be that as it may7 the commentator observes that Iraq and Egypt also followed this pattern (although as we have seen the latter has recently made a change in the favour of Shan'a), then cites other Arab jurisdiciions which give the Shari'a precedence over Custom, or omit Custom entirely. 1 l The commentator goes on to observe that Custom is the peopleXs original source, the innate method of regulating the details of life's transacions, and moreover that both the Qur'an and the Sunna accept it as such He quotes from the Qur'an: Oh, believers do not consume your assets as between you in vain, unless it be by way of commerce by mutual consent.

and from the saying of the Prophet as reported by Muslim: You are most knowing in your wordly affairs.

and from another saying reported by Ahmed: As for your religious affairs that is for me; as for your worldly affairs, in that you are the most knowledgeable. 12

Therefore, continues the commentator Custom has been said to constitute a law (sharni) precedent! and therefore placing custom after Shari'a principles would be misleading when the noble Shan'a has it as one of the major sources.

The Commentary to the Kuwait Civil Code proceeds to record that there is nothing to be feared in directing a judge to deduction (idtihad), in that the uniform qualifications required of judges, and the supervision of the Court of Cassation) would ensure that the deduction is sound, that right guidance is taken from the Islamicfiqh (jurisprudence), and that there is unifortnity of opinion. Right guidance is moreover ensured, says the Commentary, by not restricting judges to any one School of Law, or to the proponderant dictates thereof, and by adopting such principles as most accord with the reality of the country, etcetera, and with the general principles relied upon by Kuwaiti legislation overall; a judge must redound against principles of hqh which conflict with provisions of Kuwaiti legislaiion, otherwise legal chaos would result.

The Commentary's last really important point in our present context is that: It goes without saying that no provision of the Code precludes the judge from taking guidance-by the side of the provisions of the Islamic fiqh-from the generaI principles of law, or the principles laid down in internaiional treaties or other pieces of legislaiion, or deducing his opinion from provisions established by the judiciary and jurisprudence, whether Kuwaiti or otherwise, as long as they agree with the situation of the country, and the benefit of the community, and are for the realizaiion of justice.

Nonetheless, the Cede has not sought to parallel the Egyptian and some other Arab

1 1 Syria, Libva, Sudan, Jordan put the principles of the Shuri'a, the f qh, ahead of custom; Somalia et al. climinate custom enerelv. The Somali Civil Code prescribes first the Shari'a then the principles of sound justice.

12 "Render therefore unto Caesar the things which are (Daesarns; and unto God the things that are God's" (New Testament, St Matthew xxii. 219: che comparison is irresistible!

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8 ARAB LAW QUARTERLY

legislation in applying the prmciples of the law of nature and the principles of jusiice, having regard to the obscurity and ambiguity inherent in these two expressions. . .

Here we find an express recoiion of the judge's need to apply general principles in the modern context, and the comparative approach expressly recommended.

In summary, although we find that the new Kuwaiti Codes have perhaps made little difference in principle to the basic commercial legal position in Kuwait thus far, the future is another matter. One has only to consider, for example, that a specific law under a general law may well be repealed or amended, leaving an urlmodified general law. All depends on future policy and we must recall the trend towards reassertion of the Shari'a.

Finally it must be said that only in the rarest of cases would it be relevant now to invoke common law argument in Kuwait. The Codes are completen they are first-class, and they are civil law based) and behind them we have all the jurisprudeniial dictates set out above.

In the other States however, the position is different. It is not so incisive, there are varying degrees; in some of them the tradition of English law is more recent and there are survivals) in the form of surviving elements of British extraterritorial

* 13 }urlsdlctlon.

Qatar

It is convenient to consider Qatar in proximity to Kuwait because the Qatari Law of Civil and Commercial Matters is a truncated version of the old 1961 Kuwait Commercial Code. It is clear that the legislator at the time thought to adapt the latter to Qatar's needs in the main simply by leaving out passages of varying length while occasionally importing passages of Egyptian legislation which Kuwait had, in principle, discarded. The result is an incomplete Code giving rise to many uncertainties, which a judge has to resolve according to his experience and inclination. Although we have constantly to remind ourselves that there may be a qualification where there are) for example, Palesiinian) Jorsianian or Sudanese common law trained judges sitting, as a basic precept we would expect to find a civill4 court in Qatar advert to the principles of civil law, particularly as applied in Egypt, or in other States of the Gulf with a similar system, in order to fill the lacunae. This is not) of course, to say that where the legislator, although basing himself upon the Egypiian Code, has expressly otted in context sections from that Code in drafmg the Qatar Code, a judge may ignore such oniission, and apply the kiicle of the Egypiian Code. It may be submitted that where, in context, an article is expressly omitted then there must be deduced from that the clearest inteniion on the part of the Qatari legislator not to include it and a judge must conclude accordingly that its prourisions do not forrn part of Qatari jurisprudence. Be tiat as it may, in pracace judges overall tend to refer in the first instance, to Sanhouri's Commentary i'Al-Waseet", and it is also still common for a judge in Qatar to refer to dne Majella, despite the fact that Qatar adheres not to

13 Exercised by the British Crown by Order in Council (made under the Foreign Jurisdiciion Acts) unol 1961 in Kuwait; untiJ 1971 in Babrain) Qatar, and the UAE (then the Trucial States).

14 That is to say, other than a Shanta Qadi.

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THE STATES OF THE GCC: SOURCES OF LAW 9

the Hanafi School but to the School of Ahmed, as the Hanbali School is referred to throughout the writings.

It is provided by the Qatari Law 13/1971 "Regulation of the Courts of Justice''l5:

Article 5: The Civil Court shall have jurisdicoon to determine all civil and commercial matters and cases of personal status for non-Muslims.

This gives the Civil Court a wide brief. The one exception) cases of personal status involving Aluslirns would be referred in Qatar to a Qada or Shan judge. It is interesting that, this apartn the Courts law in Qatar makes no express provision for a Shari'a jurisdiction, but provides for all matters to be heard by the Courts set up under this Law '6

We turn now to the Civil and Commercial Code of Qatar.l7 I translate the relevant provisions of the Code for present purposes as follows:

Article 1: The tenets of this Law shall apply to all matters embraced expressly or by implication by che provisions hereof as well as to all commercial acts engaged in by any person even if not a merchant. Article 2: In prescribing principles which apply to merchants and commercial acts regard shall be had to contracts recognized by law, which consiitute the law of the contracting parties. Article 3: If there is no contract or if there is but it is silent as to (a particular) provision or the provisions set out in the contract are void, the legislative provisions contained in this Law shall apply. Ariicle 4: In the absence of the legislative provision which can be applied) the judge shall adjudicate in accordance with custom, special or local custom taking precedence over general custom, and in the absence of custom the principles of the Islamic Shari'a shall be applied.

We recall that in the Qatari Constitution the Shan'a is prescribed as the main source of law and that this latter provision is more stringent in the application of the Shari' than are the written Constitutions of other States in the area. The vital point at issue here is, of course, the extent to which in the Qatari system, the Sharia must, in view of the wording in the Constitution, be regarded as paramount: that is to say, must the sources of law referred to in the Civil and Commercial Code) be read subject to the proviso that they be not contrary to the Shan'a? Is the apparent hierarchy of authority referred to in the Code pyramidal, or must all the sources therein indicated be regarded as essentially subject to the dictates of the Shari'a? It is) of course) in this situation that a judge in an Islamic jurisdiction often finds himself in an unenviable position to which I have referred in another context as that of an irresistible force against an irremovable object lg

The matter is, of course, controversial. However, the Sharia is not prescribed in the Qatari Code to be ehe sole source of law and in my opinion to give absolute paramountcy to the Shan'a in the context of the Qatari Clvil and Commercial Code would be a false interpretation of the provisions of Qatari law. Most, if not all, modern

5 Qatari Law 1311971 Gazette 711971. 16 Recall) nevertheless, the prescription in the Constitution of Qatar as the Shari'a as the principal source

of law. 17 Law 16tl971: Gazette 7/1971. 18 Ballantyne "Legal Development in Arabia") London, Graham & Trotman, 1979, p. 121.

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o ARAB LAW QUARTERLY

commercial contracts contain provisions which would be illegal at the Shanna; many of the provisions of the Qatari Codes would be similarly illegal; and it cannot in my view have been the intention of the Qatari legislator to subject his legislation to such an impossible test. If this view is right, then similarly, Custom could be applied, even if not always in accordance with the Shan'a. Once again, I hasten to qualify this view. It would not be valid, in my view, where the Code or the other prescribed sources in Qatar were silent; in such a case, then the Shari'a, as the principal source of law, must be called upon in the first instance to fill the lacunae.

We advert now to the express provisions of the Code quoted above. First, we note a similar provision to that in the Kuwaiti Code that all tenets of the

law apply to matters expressly or by implication covered by it. We thus hnd the prescribed sources in the Code to be:

a. The contract between the parties (if any) and provided it accords with the law; here again we find adherence to the hallowed principle of pacta sunt ser7vanda.

b. Express legislative provision. c. Custom. d. The Shan'a.

In Article 4 of the Code we find, of course, the usual directive to the judge where he finds no guidance in the prescribed sources and, as in Kuwait, he is ultimately directed to the Shsn'a. The parallel with Kuwait is not surprising having regard to the origin of the Qatari Code. If the view that I have tentatively advanced as to the role of the Shan'a in the context of the express provisions of the Qatari Code is correct, then similarly in my view Custom could be applied by the judge even if not always in accordance with the Shari'a.

Bahrain

We recall the provisions of the Bahrain Constitution prescribing the Shari'a as a pnncipal source of law.

Against that ever-present backdrop, we record that Bahrain has as yet little legislation on the civil model and no Civil Code as such and we therefore find that the sources of law are still prescribed in the Judicature Law of 1971.19 That Law provides:

in the event the judge finds no provision of law capable of application, he shall deduce the basis of his judgment from the principles of the Shari'a and the provisions thereof, and in the absence of any such provision, Custom shall be applied. A particular Custom shall be preferred to a general Custom, and in the absence of Custom the tenets of natural law or the principles of eqliity and good conscience shall be applied.

Thus, in the event of a lacuna in enacted legislation, the judge is expressly directed firstly to the principles of the Shari'a. However, it is instructive to compare this formula with those of Kuwait and Qatar to which we have referred; it has some

19 See also the author's chapter on Bahrain and Qatar in Proceedings of the Seminar on Middle East Law IBA, l9Bl, pariicularly pp. 95 et seq.

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THE STATES OF THE GCC: SOURCES OF LAW 1l

interesiing features. First, the formula seems to envisage that secular legislation may be preferred to the Shari'a) the inference being that it may not be in accord with the Shari'a. Secondly, and very significantly, it is envisaged that the Shan'a may be deficient in supplying a soluiion to a particular problem- in that case Custom applies. We then revert to the ever-present question, as to whether such Custom would be applicable if contrary to the tenets of the Shan'a? Finally, the judge is directed to 'the tenets of natural justice or the principles of equity and good conscienceX. Once again, are these tenets or principles to be applied in defiance of the Shan'a or only if in accord therewith?

These are difficult questions indeed. Bahrain is a modern State with a fully developed commercial commuIiity and an emancipated banking system on the modern occidental model both domestic and offshore. There is still a dearth of commercial legislation in Bahrain in view of which reference to commercial arsd in particular banking custom becomes increasingly relevant. If the principles of the Shari'a were to be applied strictly to these matters, then many aspects of such commerce and banking would be found to be illegal. Practically speaking) it is unlikely that this conflict would at the present time be allowed to develop but these anomalies must always be borne in mind.

With regard to the secular law and the principles which might be applied by a judge sittmg in Bahrain we note that the law of contract and tort in Bahrain is still common law based and that consequently it would be relevant to adduce common law precedent althc)ugh in many respects reliance may also be made and is made in practice upon Egyptian and other authorities on the civil side. It may be submitted that a comparative law argument should thus carry considerable weight. The position with regard to the common law will change when the new Civil and Commercial Code which has been so long awaited in Bahrain, and which is based upon Egyptian civil prlNclple, 1S lssued.

The United Arab Emirates (UAE) We now consider the UAE and its Emirates) dealing first with the position in the Union jurisdiciion, and then with some of those Emirates which have preserved their own separate systems. Although the UAE Provisional Constitution has the Shari'a as a principal source of legislation, when we turn to the Law setting up the Union Supreme Court which started its existence as the Constituiional Court in the Union) but has subsequently gathered authority and now has a separate Cassation Division

we find this Law20 providing, in Article 75: The Supreme Court shall apply the provisions of the Islarnic Sharia) Union Laws, and other Laws in force in the member Emirates of the Union conforming to the Alamic Shan'a. Likewise it shalt apply those rules of Custom and those principles of natural and comparanve law which do not conflict with the pnnciples of that ShariXa. (Italics added). Thus, although we here have a Constitution which recognised the Shanna as a principal source of law, we have a Law setting up the Supreme Court of the land which appears to be prolriding that the Shari'a shall be the principal source, because

20 Law 10/1973.

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12 ARAB LAW QUARTERLY

by its terms any measures which are contrary to the Shari'a would seem by express

provision to be invalid. This highlights the complexity of a study in these

jurisdiciions, and the ntal importance of first assessing the constitutional position,

and then the possible role of the Sharia in order safely tO give an opinion or to

adjudicate upon a commercial problem. By comparison with Kuwait, where the

ambiguiiies are minimal in the face of comprehensive Codes with a solid backing of

Egyptian and coniinental law the rest of our-area is strewn with difficulties in this

respect. Again Union Law 6 of 1978, which set up the

Union Courts of First Instance and

Appeal, and transferred to these courts the jurisdiction of the local judicial bodies of

certain of the Emirates (Abu Dhabi, Shmah) Ajman and Fuiairah) prescribes the

following sources of law in Ariicle 8:

The Union Courts shall apply the provisions of che Islamic Shara'a Union Laws, and other laws

in force) just as they shail apply those rules of custom and general legal pnnciples which do not

conflict zrnth the provisions of the Sharina. (Italics added).

The net effect of these provisions is to make the Islac Shari'a the principal source of

law in those Emirates to which the Law applies (it does not have the same relevance in

the locS courts of Dubai Umm al-Qawain and Ra's al-Khaima, which remain under

the control of their respeciive Rulers, although the degree of relevance is open to

argument). Any difference in wording between Article 75 of Law 10/1973 and Article

8 of Law 6/1978 cannot be regarded as significant in view of the fact that appeal lies

from the Union Courts in the Emirates to the Union Supreme Court.2l One may also

note that any challenge to the consiituiionality of Union Laws 6/1978 and 1011973 on

the grounds that their prescribed sources of law go beyond the Constitution itself in

giving legal priority to the Islamic Shan'a, would be heard before the Union Supreme

Court itself as the Constitutional Court of the State. It may be accepted that the

Supreme Court would remain bound by its terms of reference, since to uphold such a

challenge would be in effect to rule that its o;Yn constitution is contrary to the UAE

Constitlltion. In any event, as a matter of interpretation) once the Constitution has

prescribed the Shari'a as a principal source of law, there is seemingly no reason why

subsidiary legislation should not exercise discretion in degrees of severity provided

chat it obeys the basic consiitutional dictate. Thus, in those Emirates where all courts

are federal courts, the Laws setting up such courts may be considered declaratory of

the legal status of the Shanta as a source of law.

As regards the Emirates which have not opted to apply for incorporation into the

Union Courts system, we shall assess them later in this ariicle against the background

of the Laws irl force in each individual Emirate. The Constituiion of the UAE

provides for exisiing Emirate legislation to continue unless and until replaced by a

subsequent Union measure; there is no express dictate that such existing legislation

must be consiituiional in accordance with the provisions of the new Constitution

although, in my opinion, that is a matter of law, whether expressed or not.22

21 See Law 6/1978, Article 7, and Article 4 of Law 17/1978 regulating the conditions and procedure

for

appeal before the Union Supreme Court. 22 Contra however the recent Egyptian case

noted supra at note 8a.

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13 THE STATES OF THE GCC: SOURCES OF LAW

Even so far as concerns the Emirates which have abandoned their individual courts systems, there is a need for analysis of EInirate law, in the main because of Article 12 of Law 6/1978, which reads:

Subject to what is provided for in this Law, there shall be a&erence before the Union Courts to the procedures, principles and regulaiions currently in force before the local judicial tribunals and in pariicular, those relaiing to litigation procedures, ways of impugliing judgments, and means of their execuiion, until such e as the Law regulaiing the procedures before the Union Courts is issued.

To date no such Law has issued, and we shall investigate the interaction here of Abu Dhabi law with Union Law, since this is the jurisdiction which provides the largest abundance of material for study.

Reference must be made to the Abu Dhabi Court Law 1968 and the Abu Dhabi Law of Procedure in the Civil Courts 1970. The former Law limits the jurisdiction of Shan'a qadis to "personal affairs". Accordingly, unless the pariies should otheIwise agree, cases involving commercial matters are dealt with by Civil Judges. The Law of Procedure in the Civil Courts states that:

In any matter not covered by a provision in the laws of the territory the Courts of the territory shall as appropriate apply the dictates of jusiice or conscience or the general principles of jusiice prosided that guidance shall be sought therein from the jurispience of the Islamic Sharz'a.

Article 8 of the Union Courts Law 6/1978 is a much stronger injunction to respect the Shari'a than is Article 5 of Abu Dhabi Law 3/1970 cited above, and it is SigllifiCallt that the majoritv of the Civil Chamber of the Abu Dhabi Court of Appeal has taken the view that Articles 61 and 62 of the Abu Dhabi Civil Procedure Code, which allow the Civil Court to require the levying of interest upon a judgment sum until the full amount due had been paid, had been invalidated by Union Law 6/1978. In that case23 the bank concerned failed to recover interest on a loan because the majority of the Court held interest to be illegal at Skan'a Law, altl2ough there was a strong dissenting opinion from one member of the Court, who declared the matter to be controversial at Islamic Law, and argued that it would be wrong, indeed dangerous, "to issue a decision based on absolute religious beliefz'.

As we shall see in a moment, when we consider some consiitutional judgments issued by the Supreme Court which illustrate the uncertainty surrounding the matter of prevalence among the sources of law, a higher Court took the opposite view. In any event, the lower Appeal Court decision is not binding as regards later cases, there being no strict rule of stare decisis, but it does demonstrate the overall trend in Abu Dhabi towards questioning the legality of interest, and of secular practices generally, and it may be assumed that like Union Courts in Shariah, Ajman and Fuiairah would follow any lead given by Abu lDhabi. There has never in fact been any incisive ruling in the matter of the legality of banking interest in the UAE: it remains a recognised risk, while the true sanction is perhaps not so much a matter of law as of creditability.

We now have to consider briefly the situaiiorl in the non-subscribing Emirates of Dubai, and Ra's al-Khaima (and Umm al-QawainAvery briefly in the latter case,

23 Civil Appeal No. 511979: Abdullah Rashid Hilal v. The International Bank of Credit and Cornmerce.

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14 ARAB LAW QUARTERLY

since there is scant published matenal concertiing ehe workings of jusiice in that Emirate.

In Dubai the Shan'a Courts have residuary jurisdiction in all but the few specific matters in which junsdiction has been grantesi by Decree to the Civil Courts; in pariicular, the latter have junsdiction in banking matters and any financial transactons m which a bank is involved, so that any consideration of the legality of ineerest would come within their province. Ariicle 14 of the Dubai Courts Law 1970 provides that the Civil Court shall exercise its power in accordance with (1) the laws in force in the Emirate; (2) the provisions of the Shari'a; (3) the rules of custom and usage, provided e same be not in conflict with the laws, or public order or morals; and (4) the mles of natural jusiice, law and eqety. Thus we again fmd the admission of general principles of law.

Ill e absence of any Dubai legislation on banking, the Civil Judge finds himself directed towards the Shanna by this Ariicle, yet in praciice, the Dubai Courts have in the past taken the view that interest is not illegal. The extent to which Dubai may be affected by trends emanatmg from Abu I)habi is difficult to assess, but it is worth restamg that Dubai as recently as 197924 reinforced its own autonomous system of courts by establishing a Dubai Supreme Court of Appeal (Law 211979) tO replace the old Appeal Court

In Ra's al-Khaia, the situation is broadly the same, the Shan' Courts having residuary jurisdiction (Courts Law 1971, Art. 9) and the Civil Courts having jurisdiciion in banking matters (Decree 911971, Art. 1(2)). The sources of law are ideniical to those prescribed in Dubai, as they are for the Civil Court of Appeal formed by Decree 14/1971. (In the context of the significance of the order in which sources of law are laid down, it is interesiing to note that in both Dubai and Ra's al-Whnima, the Shan'a Courts have prescribed for them "the Laws in force in the Eirate. . . and the provisions of the noble Islamic Shan'a".)

Reveriing now for a moment to judgments of the Constitutional Division of the Supreme Court which illustrate the trend in atiitudes as regards the relevant importance of the prescribed sources of law: we renlrn first to the Hilal Case, in which the Supreme Court was asked to rule on the consiituiionality of Ariicles 61 and 62 of the Abu Dhabi Procedure Law (3/1970). The Supreme Court held that the Ariicles were conshtutional and coniinued to be so by ve of Ariicle 148 of the Union Constitution which provides at laws in force before the promulgation of the Constituiion were to remain valid unless or 1lntil repealed or amended. This, of course, begs the question of whether:

(a) interest is or is not legal at the Shari'a; (b) the provisions of the Shari'a must be regarded as pararnount which, in view of

the strong wording of the Courts Law, could well be argued to be the case.

This judgment is, in my respectful submission, wrong. In this context we refer to another judgment of the Consiinliional Division of the

UIiion Supreme Court: 1982 Case l/Year 8.25 Here a number of cases were referred by

24 Dubai Law 2J1979. 25 UAE Gasette No. 100.

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THE STATES OF THE GCC: SOURCES OF LAW 15

the Abu Dhabi Appeal Court for guidance as to the constitutionality of criminal penalties imposed by the Abu Dhabi Alcoholic Drinks Law of 1976. The point at issue was the difference between the Shari'a penalties (the hadd punishments) and those imposed by the Abu Dhabi secular law. The Court referred to the Constitution, and to the Union Courts Law which, we recall, contains the apparent hierarchy of authority to which we have referred. The Court further referred to the conflict between the said secular law and the Shan'a as prescribed by Union Law 10/1973 Article 75. Having regard to the provisions of the Constitution prescribing the Shari'a as a principal source of law, must the hadd putiishtnents be applied in substituiion for the punishments prescribed by the Abu Dhabi secular law? The Court said that as a general principle this falls to the legislator to decide, not to the Court; the duty of the Court is merely to decide where necessary whether the legislation passed is constitutional. The Court then mentioned the directive in the Union Courts Law that laws were to be applied if in accord with the Islamic Shan'a; thus, said the Court, does the local Abu Dhabi Alcoholic Drinks Law accord with the Shan'a? The Court referred to the penalities of imprisonment and fine for drunkenness prescribed by the Abu Dhabi law "without prejudice to any other punishment prescribed by the penal code or any other law". The Court pointed out that the crimes in issue here constituted drunkenness in a public place, not the consumption of liquor (italics addedAthe latter is of itself punishable at the Sharz'a by flogging according to the true Sunna. The Court said that the crime of drunkenness here in issue, for which the penalties are prescribed by the Abu Dhabi Law (Art. 17), do not contravene the provisions of the Shari'a, because the Shan'a does not prescribe a punishment for this particular crime-and it is with the crime of drunkenness in a public place that the accused are indicted in these cases. The Court was of the opinion that at the Shari'a this would be a matter of ta'zir (discretionary) not hadd prescribed and mandatory, according to all the authorities. Thus, in the judgment of the Court, the penalties prescribed by Article 17 are not inconsistent with the Shan'a. The penalties prescribed at the Shan'a for Muslims drinking alcohol, are different; thus the said Abu Dhabi Law is not unconstitutional.

To the uncomplicated mind, it may seem difficult to envisage drunkenness in a public place, without the prior consumption of alcohol!

Be the foregoing as it may, a later judgment seems to record a shift in emphasis. This recent case26 once again dealt with the Abu Dhabi Alcoholic Drinks Law, and seems finally to have put the paramountcy of the Shan'a in the UAE system beyond doubt. It thus merits consideration in detail. The constitutional division of the Union Supreme Court, sitting at Abu Dhabi on 25 December 1983 was again concerned with the interpretation of the Constitution in a number of cases raised by the Abu Dhabi Union Appeal Court. Again, the constitutionality of Article 17 of the Abu Dhabi Alcoholic Drinks Law 8/1976 was under consideration. The Attorney General's Office had demanded the imposition of the Shari'a penalties.

The Abu Dhabi Criminal Court had sentenced the accused to six months' imprisonment and a fine of DH1000 in accordance with paragraph 2 of Article 17.

26 Published in UAE Gazette 135/1984.

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16 ARAB LAW QUARTERLY

Both the accused and the Attorney General appealed. The Appellate Court said that the Abu Dhabi Law was a local law as referred to in Article 8 of Union Law 6/1978. The Court referred to Article 13 of that Law as follows: Uniil the issue of the special law relaiing to the procedures of applying the Shari'a hadd puIiishments, the punishments provided in this Law shall be considered as "esiirnated".

The Appellate Court recorded that the Union Supreme Court applies the Shari'a and quoted Article 75 of Union Law 10/1973. Both lower and Appellate Courts must apply these principles. The Court pointed out that there was an apparent conflict between Law 6/1978 which enjoins the imposition of the penalty provided by Article 17 of the Alcoholic Drinks Law by application of the principle of ta'zir, and Union Law 10/1973 relied upon by the Attorney General in demanding a sentence of flogging; the latter in accordance with Article 75 of Uriion Law 10/1973. Both laws are Union Laws, said the Court, equal in legislative weight, but differ in the puriishrnent for drunkenness, thus creating a conflict, and calling into question the constitutionality of Law 8/1976. The Court referred to Article 7 of the Constitution stating that "the Islamic Shan'a is a principal source of legislation" and asked, should the legislator have paid heed to this principle in framing Law 8?

Such were the issues in the Court of Appeal. In view of the apparent conflict, the Court referred the matter to the Constitutional Division of the Supreme Court.

In this case, the Constitutional Court referred expressly to Article 7 of the Constitution and faced squarely the question: "Is the Shan'a the sole official source of law, superior to secular legislation; or are there other sources beside it?" The legislator dealt with this by making the Skan'a the fundamental and principal source for everything issuing from the Authorities by way of legislation by his provision in ArtLicle 75 of Union Law 10/1973. The result, said the Court, is that the desire of the State was quite clearly expressed in the Constitution that its legislation be Islamic, and furthermore the legislator has chosen that the law (shari'a) of God is the principal source for all legislation and "who can be better than God in law?" The Court went on to say that the Islamic Shan'a absolutely forbids liquor and the Judgment contains many quotations from the Qur'an and the Sunna and a long homily to these effects.27

The Court concluded that the ta'zir punishrnent provided for in the Abu Dhabi Drinks Law in no way prejudices the hadd punishment, but is a guide to the Qadis in sentencing also for the specific incidents of drunkenness in a public place, for the protection of the public weal. For this, imprisonment and fine are both recognised forms of punishment and if the public weal so requires there is no objection to adding these punishmenls to the hadd.28 The Court said that the intention of the said Article 13 was not to suspend the hadd punishments for the following reasons: 1. The overall intention of the legislator is clear.

27 Perhaps not surprisingly, the Court did not advert to the Qur'an at Surat II:219: "They ask you about alcohol and games of chance. Say: in both there is great sin and benefits to the people: and the sin thereof is greater than the benefit . ." (Al Boqara). We may also, hos^7ever, recall: Surat IV:43: "Oh ye who believe: Draw not near unto prayer when you are drunk, that you may know what you are saying . . .". Surat V:90: "Oh ye who believe, alcohol and games of chance and idols and divining arrows are only an infamy of Satan's handiwork. Avoid it that mayhap you will succeed."

28 All emphasis supplied.

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THE STATES OF THE GCC: SOURCES OF LAW 17

2. The hwadd is from God and the legislator has no right to vary or sllspend the same: the other punishments may be added.

3. The Qur'an and Sunna etcetera are from God and it is inconceivable that they can be waived.

4. A contrary view would mean that if a Muslim drinks alcohol in private or public without getting drunk, he would be subject to no punishment this is completely at variance with the provisions of the Shanta.

5. If the legislator has, as explained, taken the Sharaa as the fundamental source for all legislaiion, it is thus above all other laws. Article 17 of Law 8/1976 provides that the penalties therein prescribed shall be without prejudice to any other penalty prescnbed by the Penal Code or any other lawz fortiori the Shart'a.

On the basis of the foregoing, said the Court, there is no conflict: ta'zir can be joined to hadd.

This judgment makes it quite clear that the Sharia is paramollnt. This was of course a cral not civil matter, but it may be submitted there can be no distinction in this respect in the philosophies applied by the Supreme Court and this decision consiitutes a weighty precedent in criminal, civil and commercial matters.29

Conclusion

What are the main points to be drawn from this very complicated overall picture? First one should realise the growing emphasis to be given to the Shanna. Secondly, this should always be analysed against the backdrop of the constitutional law of each State. Thirdly, the keynote is uncertainty: with the possible exception of Kuwait in commercial matters, the Shari'a could intervene to a greater or Iess degree in most . . . .

rlsdlctons.

In Kuwait the situation is incisive) with the sound basis of comprehensive codes on a civil law basis. In Saudi Arabia, at the other extreme) we find the Shan'a paramount, as developed in so-called Regulations out of deference to the Culama', the learned doctors of law. In Bahrain, we find common law/civil law in that order the Laws of Contracts and Torts based on common law with a civil law patterned Commercial Agencies Law and Companies Law, and a Civil and Commercial Code along EgypiianlFrench lines currently in draft form) the promulgation of which will progressively abolish the common law element.

In Qatar we halre a civil-based Code, and, for example, agency and company law also on that basis; but where there are lacunae there is still some room for common law supporting argument. Again in the UAE there is a civil emphasis, notably in the Companies Law) and in other specific laws, although there are as yet few codes: as far

29 See also the Judgment of the tJnion Constitutional Court on S June 1983 in a reference by the Union Appeal Court of Shariah (Case 209/1981). Here the Court in dealing with the constitutionality of the Law of Control of Alcoholic Drirlks in Shariah 1972 held that the said Law was constituiional and the punishments therein prescribed valid; but went on to say that the imposition of the Hadd punishment is obligatory on a Muslirn who drinks alcohol, whether the same be accompanied by another prescribed ta'zir punishment or not. The Court referred to its judgments No l/Year 8 dated 8 November 1981; and No. 14/Year 10 dated 30 January 1983, both dealing with the Abu Dhabi Alcoholic Drinks Law. For two further cases on this subject see UAE Gazette 124 and 129.

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18 ARAB LAW QUARTERLY

as the Union is concerned civil principles are set out to oust the vestiges of common

law. In the individual Emirates, however, this may take longer, although Abu Dhabi

already gives the emphasis to the civil approach. Dubai, Sharjah and Ra's al-Khaima

still apply the same Contracts Law as Bahrain, so that one starts with the existing

common law, and introduces civil law as appropriate. It is not inaccurate to say that

one may validly apply this approach in the remaining Emirates Ajman, Umm

al-Qawain and Fuiairah. Lastly, Oman is in a category of its own: the Banking

Law and the Companies Law

are good cases in point, as we shall see in later articles. It would be necessary to seek

out all relevant precedents and arguments introducing civil and common law on a

. .

comparatlve basls.

Thus, the praciical approach to any problem in the area is first, where necessary

and appropriate, to go to the Constituiion. Then the Codes must be considered. We

turn to our prescribed principles to fill any gaps: we must accord due weight to each

one as prescribed. Eventually, we go to commentaries, Sanhouri being paramount,

and to common law books and precedents where we have a common law element.

This brings us to court decisions: it has been stressed that one cannot always

determine whether the courts would remain bound by prior decisions, but we recall

that we are dealing.with relaiively small communities, and a limited number of

judges, and even absent a mandatory rule of stare decisis, in practice it is unlikely that a

judge will contradict himself on the same facts.

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