DUBAI // Deportation should not be mandatory for minor offences such as flashing a middle finger or kissing in public, judges and lawyers say.
Legal professionals have voiced their growing unease with the use of deportation as a punitive tool for minor offences that are classed as sexual assaults. They say that is contrary to the UAE's image as a tolerant international community.
"In some societies flashing a middle finger may be annoying but not criminal," said Judge Ahmed Ibrahim Saif, head of the Dubai Civil Court and former chief justice of the Dubai criminal courts.
"It's not that big a deal. It's not fair that I deport him or her and end his or her life and career over this gesture. We have to leave more room for the judge to make the decision here."
Criminal cases that are deemed as sexual assaults are important, but not all the cases have the same level of severity, according to Judge Saif.
As such, not all offenders deserved to be deported, he said.
Under the UAE's penal code, deportation is mandatory for people convicted of sexual assault charges, but the offences range in severity – from kissing in public, flashing someone the finger, to rape.
Emirati lawyer Salah Al Bloushi suggested that "deportation becomes no longer mandatory" for minor offences.
The UAE, he said, was a welcoming host for people of various nationalities and cultures, so it was essential that legislators review the scope of offences that are classed as sexual assaults.
One judge said it was unfair to deport a person for flashing a middle finger.
"I, however, find myself forced to enforce deportation as part of my sentencing work," he said.
"Sometimes I would not include it, but I know for sure how the verdict will be appealed. And the deportation will be added because it's mandatory by law."
In 2005, the Cassation Court in Dubai set a precedent that in theory affords judges leeway to avoid deporting people.
It had said that deportation would only be mandatory if the sentencing included imprisonment for sexual assault convictions. But if the accused was only fined, the judge would have the power to decide whether or not to deport the offender.
"I still think that deportation in [minor] cases must be removed [entirely], and that the law be amended in a way that specifies certain charges in which deportation is mandatory," said Mr Al Bloushi.
Judge Saif said it was difficult to rule out malicious intent.
And when a malicious act would result in a person's livelihood being affected over a trivial matter, that would be unacceptable, he said. In some cases, false witnesses could appear in court to validate a plaintiff's false claim, and the judge would have no choice but to deport the accused, said Judge Saif.
All verdicts issued affect the UAE community and that is why people should be more aware about their effects, according to him. "Such deportation may end not just the career of the man who was convicted but also close a door for his family back home, who might have been receiving some financial aid from their son here," said Judge Saif.
"We need punishment but not cruelty."
Judge Jamal Al Sumaiti, head of the Dubai Judicial Institute, said he had never been persuaded about the use of deportation for minor offences such as flashing a middle finger.
"Where is the severity in this act? The deportation, in general, should be connected to how severe the criminal act is. Here, there is no severity," said Judge Al Sumaiti.
He cited the imposition of the death penalty for drug dealers because of the danger they pose to the community. "But to see a man and a woman together, where is the severity or danger because of which I must deport these people?" he said.
Judge Al Sumaiti said that he was against mandatory deportation and that he supported giving judges the power to decide whether an offence merits it. "I don't know why the Emirati legislator made it mandatory," he said. "I tried to find an answer but I couldn't. I think that the legislator needs to be closer to the public, not be in his office away [from the public].
"He must be able to read the reality that we live in. We are an international community that needs a legislator that takes into consideration this community's conditions and various cultures."
salamir@thenational.ae
