Evidence reform can aid justice

An Emirati lawyer raises important questions about the standards of evidence in court

Mohammed Al Hammadi, an Emirati criminal lawyer, has done the rule of law in the UAE a great service. As we reported yesterday, Dr Al Hammadi has published a paper raising issues about the rules for evidence in UAE courts, thereby starting an important public conversation that has repercussions for everyone, nationals and expatriates, in the country.

Dr Al Hammadi has pointed out two related issues to do with how cases are processed at the very start. The first is that the basis for deciding whether a case should be tried under Sharia or under Criminal Procedure law is not clear. Each set of laws brings with it its own requirements for evidence, which means a defendant could potentially be disadvantaged by the judge choosing one over the other.

The second, related, aspect is the choice of which Islamic school of thought should guide the Sharia judgment. The UAE recognises the four major Islamic schools of thought, but in some cases these involve different standards for evidence. Again, the judge chooses, once more raising the possibility that a defendant could be disadvantaged by the judge’s choice.

All of this introduces too much ambiguity into the legal system. Which judge hears a case can have a disproportionate effect on the final outcome of some cases – a judge may choose to be guided by Sharia and by a particular school of thought. A clearer standard for evidence is needed.

But what that standard should be and how it should be enacted is not an easy question. Islamic jurisprudence is a centuries-old body of law that is constantly evolving. It will require real scholarly debate to define which cases should be heard under which school of thought.

But, for now, perhaps a more general approach can be taken. By setting broad guidelines for judges to choose whether to use Sharia law or Criminal Procedure law, and then again how to choose a school of thought, the whole process can be made a bit more transparent.

That, in the end, is the goal of reform, to make sure the whole legal system is as transparent as possible. What is admissible evidence should be clear from the start. Defendants can then be sure the judgment they receive will not vary greatly from judge to judge – the very cornerstone of impartial justice.