21 Oct 2013


Authored by: Dr Faraj A. Ahnish


This Article is perhaps timely as it coincides with the 40th Anniversary of the founding of our Federal Supreme Court, which was founded by Federal Law 10 of 1973 with effect from 1st September 1973. It issued its first judgment on 29 November 1973.

A second and more important reason for writing on the subject is the realization amongst the legal fraternity of the ever important and increasing role being played by our Federal Supreme Court (FSC) in not only upholding but clarifying and consolidating the principle of the rule of law, by exercising its constitutional mandate under the Federal Constitution. Under Article 58 of Law No. 10, the FSC is vested with the power to adjudicate on the constitutionality of federal laws and local laws and to strike them down if, and to the extent, they are inconsistent with the constitutional principles enshrined in our constitution. This is an implementation of Article 99 of the Federal Constitution which partly reads:
 “The Union Supreme Court shall have jurisdiction over the following matters:

  1. Examination of the constitutionality of the Federal laws…
  2. Examination of the constitutionality of legislation promulgated by any of the Emirates…”

A worthy example of the position adopted by the FSC is illustrated by its latest constitutional pronouncement delivered on 22/4/2013. The judgment was handed down in an appeal filed before it on the ground that a Decree issued by one of the Emirates which restricted the right of the appellant to file a civil claim before the court of competent jurisdiction was unconstitutional because, it was said, that it denied the appellant’s constitutional right to have unfettered access to the civil courts of the country. The Decree in question provided that a claim against the Government of the Emirate concerned or any of its departments had to first be submitted to the Chairman of the Judiciary Department, who in turn was obliged to review the claim and issue a recommendation for amicable settlement or, alternatively, to forward the claim before the court of competent jurisdiction.

The FSC ruled in favour of the appellant. It held that the Decree concerned “impinges on the right of the people to be equal before the law in seeking justice through the country’s courts and it, consequently, breaches the provisions of Articles 120, 121, 149 and 151 of the Constitution of the Union, thus it becomes mandatory to hold that it is unconstitutional”.
In reaching its conclusion the FSC laid down certain principles which, when looked at cumulatively, clearly recognize the primacy and pre-eminence of the doctrine of the rule of law. A close examination of these principles also highlights the vital importance of this doctrine for the nurturing and development of our legal and political systems within the parameters of a federal state. Here is a summary of the principles as laid down by the FSC:
1.  The supremacy of the constitution in a federal state. This is a fundamental principle that is typically enshrined in constitutions around the world. Article 151 of our constitution provides “the provisions of this Constitution shall prevail over the Constitutions of the member Emirates of the Union and the Union laws which are issued in accordance with provisions of this Constitution shall have priority over the legislation, regulations and decisions issued by the authorities of the Emirates…”.

This constitutional principle plays a cardinal role in a federal state, such as the UAE, for two interlinked reasons: first, it safeguards the conditions subject to which the “people” conceded to the Union and, secondly, it contributes, to a large extent, to maintaining the constitutional balance between the powers of the federation and those of the Emirates, which are members of the Union.
The FSC has recognized the crucial need to maintain this constitutional equilibrium. It observed: “the Federal Constitution represents the will of the Emirati people and their Rulers as declared in its preamble … and that our Federal laws are promulgated upon their ratification by the Supreme Federal Council, which also in itself represents the general consensus amongst the Emirati People; this means that the will of the Emirati people is the cornerstone of the supremacy of Federal legislation”.
2.  The supremacy of the right of access to courts. It is the first time in its history that the FSC explicitly held that “no rule or order shall be above the Constitution and the right to seek justice through the ordinary judicial system is a constitutional right that cannot be fettered or restricted”. The FSC further observed that “the right to litigate, in its essence, belongs to the people who are entitled to exercise it equally in their quest for defending their rights. It is not permissible to discriminate between people in respect of their right to have access to their ‘natural judge’, or to invoke the procedural or substantive rules governing litigation, or to defend their claims before the courts.”
The right to have unrestricted access to the “natural judge”, the FSC observed: “is a constitutional right enshrined in Article 141 in our constitution.”  The legislator’s mandate to regulate the use of such right must not involve introduction of any restriction or discrimination. “The Emirati law in question differentiates between litigating parties, in respect of resort to courts, and this in itself constitutes a fundamental breach of the principle of equality before the law and a hindrance to the right to litigate”.
3.  The absoluteness of the right to adjudicate disputes. The FSC relied, principally, on two reasons for annulling the Decree in question. First, it was a local decree that partly imposed restrictions on adjudication of claims before courts; such restricting procedures are not found in the Federal Civil Procedures Law. Taking this reason in isolation, one would be tempted to conclude that a Federal law/decree that restricts the right to resort to courts may not be challenged as unconstitutional.
This understanding quickly vanishes if we consider the second reason declared by the FSC. It held that “imposing special procedural provisions for adjudication of disputes before the Federal Administrative Court, such as … submitting it before public or private Federal or local entity prior to submitting it to the Federal Court constitutes a procedural restriction that results in discrimination and creates inequality amongst people who have equal rights before the law”.

It is therefore apparent that the FSC holds the view that such restrictions, whether imposed by local or Federal law, will be held to be unconstitutional. This is a welcome development that will certainly invoke legal debate over the sanctity of several provisions in many existing Federal and local laws.

This article, including any advice, commentary or recommendation herein, is provided on a complimentary basis without consideration of any specific objectives, circumstances or facts. It reflects the views of the writer which may, in some cases, differ from those of the firm, especially in the develop jurisdiction of the UAE.