CAPITULO II MARCO TEÓRICO
VARIABLE DIMENSION O
Human Rights Watch affirms that activists campaigning for human rights in the UAE and critics of the government are liable to be charged with harassment, and subjected to criminal prosecution resulting in custodial sentences.73 Moreover, contrary to international principles, Human Rights Watch claims that UAE’s penal code allows the government to criminalise speech based on broad content restrictions.74 This is further supported by the recent annual
Amnesty International Report which focused on UAE’s poor record and the government's restrictive approach to ‘freedom of speech and assembly’75. The reports by Human Rights
Watch and Amnesty International note that the UAE is in violation of the Universal Declaration of Human Rights, Article 19 and 20 which state that all signatories are bound to acknowledge the freedom of expression, assembly and association76. World Press Freedom Index placed the UAE at 119th in 2016 for the freedom afforded to the Press.77
The Amnesty International annual report78 also drew attention to the fact that the authorities used provisions of the Penal Code, the 2012 cybercrime law and the 2014 anti-terrorism law to arrest, prosecute and imprison critics. In July of the same year, the enactment of a new law on combating discrimination and hatred further eroded rights to freedom of expression and
73 Human Rights Watch, ‘World Report 2012: Rights Trends in World Report 2012: United Arab
Emirates’ (Human Rights Watch, 2012) <https://www.hrw.org/world-report/2012/country- chapters/united-arab-emirates> accessed 16 April 2017.
74 ibid.
75 ‘Amnesty International Report 2016/17’ [2017] Amnesty International Ltd 379, 379-381.
76Universal Declaration of Human Rights (UDHR): Article 19: Everyone has the right to freedom of
opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 20: Universal Declaration of Human Rights. 1. Everyone has the right to freedom of peaceful assembly and association. 2. No one may be compelled to belong to an association. UDHR (adopted 10 December 1948) UNGA Res 217 A (III) (UDHR) art 19-20
77 Reporters Without Borders, ‘United Arab Emirates’ (2016) <https://rsf.org/en/united-arab-emirates>
accessed 29 May 2019.
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association. The new law defines hate speech as ‘any speech or conduct, which may incite sedition, prejudicial action or discrimination among individuals or groups’79 which is
punishable by a minimum of five years imprisonment. It also empowers the courts to order the disbandment of associations deemed to provoke such speech and imprison their founders for a minimum of 10 years80.
The United Nations Special Rapporteur observes that ‘the right to freedom of speech and of peaceful assembly’81 is part of human nature. The organisation advises that the most viable
methods for this is through the election process, where citizens have a right to express their opinions, join trade unions, elect leaders to represent their interests and hold them accountable at national governmental elections. Furthermore, it advises that assembly and association rights are a prerequisite not only for a legitimate democracy, but also for a just society. The right to freedom of peaceful assembly is the right to gather publicly or privately and collectively express, promote, pursue and defend common interests. Nation States must refrain from unduly obstructing their citizens’ right to freedom of association and respect the privacy of associations.82
However, it would appear that the Federal Constitution of the UAE actually supports these recommendations as can be deciphered from Articles 30 and 33,83 which state: ‘Freedom to
hold opinions and express them orally, in writing or by other means of expression shall be guaranteed within the limits of the law’84 (Article 30) and ‘The freedom of assembly and the
79 ibid.
80 ibid.
81 UNHRC, ‘The Rights to Freedom of Peaceful Assembly and Association’ (2016) UN Doc
A/HRC/RES/32/32 .
82 ibid.
83UAE Constitution, Art. 30 and 33
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freedom to hold meetings shall be guaranteed within the limits of the law’85 (Article 33)
The Amnesty International report on Human Rights 200886 argues that although the Federal Constitution vouchsafes the freedoms due to individual citizens and groups, the current legislative norms and practices deems such freedoms an anathema to the nation’s very existence. This is evident from the joint report submitted to the UN Universal Periodic Review87 by nine stakeholders. 88The stakeholders observe that Islamists and political dissenters criticising the political structure or human rights record of the UAE are often arrested, arbitrarily detained, face ambiguous charges and/or receive partial trials. Human Rights Watch, in particular, notes that political parties are prohibited in the UAE and that rights of assembly and association are limited. They note further that although the government has granted Non-Governmental Organisations representatives permission to visit, it is extremely controlled and limited in its scope89 leading the stakeholders to argue that despite the stipulations made in the Federal Constitution, independent Non-Governmental Organisations and trade unions are not tolerated. A major aim of the joint report submitted to the United Nations Human Rights Council by the nine stakeholders90 was to request the UAE to respect
85UAE Constitution Art 33
86 Amnesty International, Challenging Repression: Human Rights Defenders in the Middle East and
North Africa. (Amnesty International Ltd 2008)
<http://www.amnesty.org/en/library/asset/MDE01/001/2009/en/3fe5c240-d77d-4e15-8957- 5928387d1093/mde010012009eng.pdf> accessed 29 May 2019.
87 Amnesty International, ‘UAE: Crackdown on Fundamental Freedoms Contradicts Human Rights
Commitments’ [2013] UN Universal Periodic Review.
88These stakeholders included: Amnesty International (AI); Alkarama (Geneva, Switzerland); FrontLine Defenders (FLD: The International Foundation for the Protection of Human Rights Defenders) (Dublin, Ireland); Global Initiative to End All Corporal Punishment of Children (GIEACPC); The International Centre for Supporting Rights and Freedoms (ICSRF) (Cairo); Islamic Human Rights Commission (IHRC) (London, United Kingdom);JS1 Joint Submission 1( Human Rights Watch (HRW); Network for Human Rights Information (NHRI); Gulf Centre for Human Rights (GCHR); Index on Censorship (IC)); Organization for Defending Victims of Violence (ODVV) (Tehran); Reporters without Borders (RWB) (France).
89 Human Rights Watch (n 73).
90 Amnesty International, ‘UAE: Crackdown on Fundamental Freedoms Contradicts Human Rights
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the international human rights laws governing Non-Governmental Organisations. Amnesty International and Alkarama called upon the UAE to amend the 2008 Law on Associations, including its Article 16 to ensure that Non-Governmental Organisations can function free from State interference. Alkarama further lobbied the UAE government to reinstate the boards of associations, which had been removed under this law. Whilst the International Centre for Supporting Rights and Freedoms (Cairo) requested that the legislation is amended to allow for the freedom to establish associations outside of the official state sanctioned bodies. This should also be supported by adopting the appropriate legislation to ensure the protection of human rights proponents in the conduct of their work.91 However, some international observers such as the US Department of State on Human Rights claims that UAE’s judiciary and court system provides for a substantial obstacle in the reformation process.
By tradition the… diwans, have maintained the practice of reviewing… criminal and civil offenses before they are referred to the prosecutors… Further still they also review the adjudicated sentences… and approve the release of every prisoner after the completion of their sentenced terms…if they did not approve of the verdicts, they return the case to the court on appeal… The diwans involvement leads to lengthy delays prior to and following the judicial process… and lengthens the time defendants spend in prison92.
Doherty93 states that the government controls the UAE judicial system, which constitutes a direct violation of the independence of this authority. She further argues that the notion of human rights is directly related to the independence of the judiciary system as Article 94 of the Federal Constitution of the UAE states that, ‘Justice is the basis of authority. Judges shall be independent and subordinate to no authority but the law and their own conscience in the
91 United Nations Human Rights Council (UNCHR) (n 66).
92 US State Department, ‘UAE 2013 Human Rights Report’ (2013) 8
<https://www.state.gov/documents/organization/220592.pdf> accessed 19 April 2016.
93 R Doherty, ‘UN Expert Says UAE Judiciary System Controlled by the Executive’
<https://www.reuters.com/article/us-emirates-justice-un/u-n-expert-says-uae-judicial-system- controlled-by-executive-idUSBREA141PN20140205 >.
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performance of their duties’94. Alkarama95 argues that, as the UAE President is also the head
of the Federal Judicial Council, this constitutes a direct violation of the principle of separation of powers. They assert that there is great inconsistency in the UAE judiciary and the manner in which they apply the laws96.
The UN Human Rights Office of the High Commissioner notes that the functioning of the UAE judicial system directly impacts upon The delivery of justice, the enforcement of peoples’ human rights and the public’s confidence in the judiciary and ‘such challenges should not be ignored; they should be addressed as a matter of urgency in order to bring the administration of justice in the UAE in line with international human rights standards’97
The UN Special Rapporteur has even requested the UAE to review their legislation and to ensure that the right of appeal exists within their legislation.
It should take measures to ensure the independence of the judiciary, and in particular adopt legislation to separate the functions of the Ministry of Justice from those of the judiciary and the courts... The public’s awareness needs to be raised with regards to the content of legislation, its application, the differences that exist across the individual Emirates, and the applicability of the federal laws98.
Davidson asserts that a significant factor impacting the current situation is the general weakness of ‘civil society’99 in the UAE due to its ‘severe lack of civic space’100.
94UAE Constitution, art 94
95 United Nations Human Rights Council (UNCHR) (n 66). 96 ibid.
97 Office of the High Commissioner on Human Rights (OHCHR), ‘Preliminary Observations on the
Official Visit to the United Arab Emirates by the United Nations Special Rapporteur on the Independence of Judges and Lawyers’ (28 February 2014)
<https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14223&LangID=E> accessed 16 April 2016.
98 ibid.
99 CM Davidson, The United Arab Emirates: A Study in Survival, vol 16 (Lynne Rienner 2005). 100 ibid 33.
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Heard-Bey argues that this ‘lack of civic space’101 is due to the restrictive nature of UAE law with regards to the establishment of associations of any nature:
Considering that the vast majority of inhabitants is foreign and come from countries where political and social strife is not uncommon, the authorities wanted to avoid as much as possible the importation of such festering problems… In consequence, even foreign charitable groups… such as environmental initiatives, art societies, and trade-based groupings… such as national business associations… are currently still rare and have to observe circuitous measures to function legally...102