Durham E-Theses The role of the Supreme Court in the constitutional system of the United Arab Emirates - a comparative study. Al-Owais, Hadif Rashid How to cite: Al-Owais, Hadif Rashid (1989) The role of the Supreme Court in the constitutional system of the United Arab Emirates - a comparative study., Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/1419/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 1 Role of tl Suprne Cbirt in the Qnstitutiaa1 Systen of the United Arab Fni rates - A Qjaratjve Sbxly. 1iff Rash.id Al—Owais The copyright of this thesis rests with the author. No quotation from it should be published without his prior written consent and information derived from it should be acknowledged. Thesis subuitted in fulfilment of the requirnerits for the degree of Ph.D. Department of law University of Durham 1989 ly 2 1 flEC 1990 ABP 'l! Role of the Supra1 Court in the Coustitutioual System of the United Arab nirates - A Qxçarative Study. Thvii f Rashid Al-ais This study is concerned with dennstrating the importance of the Supreme Court in the constitutional system of the United Arab Emirates, discovering its possible contributions to constitutional develoçznent and recarnnding measures to improve the effectiveness of the Court. A brief analysis of he modern history of the United Arab Emirates and an outline of the characteristics of this aintry and its society are provided. The constitutional history of the country is given, with specific emphasis on the process of drafting the current constitution. The role of constitutional courts in federal systems, their contrib.itions to, and the theoretical basis for participation in the develorinent and maintenance of, constitutional systems is discussed. This study includes a fairly detailed analysis of the arguunts about the role of the U.S. Supreme Court and the American Federal judiciary in practising judicial review, and the authority of judicial interpretations of the constitution. The West German experience in judicial review and its effecs on federalism is analysed. The constitutional system of the United Arab flmtrates and the position and caiipetence of its Supreme Court is studied. The legislative regulation of the Supreme Court is evaluated. A detailed study is provided of the development of the jurisprudence of the Court since its establishment. Findings and recaanendations aimed at improving the contrib.ition of the Supreme Court in the constitutional system of the United Arab Emirates are provided. ains Page Declaration, Copyright, Acknowledgements Introduction 1 Part One chapter One Ilie Qintry, Its History and Wwe 'lbwards Unity 9 British Entry to the Gulf 12 Confrontation between the wasim and the British Fast India Canpany 13 The Inception and Developnent of the Treaty Relationship between Britain and the Eknirates 15 An Evaluation of the General Treaty of 1820 17 The Perpetual Truce of 1853 17 The Ccinprehensive Agreement of 1892 18 The Legal Status of the flnirates under the British Treaty Relations 19 Position of the Eiiirates within the British Constitutional Framework under the Exclusive Agreement of 1892 20 The Effects of British Treaties with the Bknirates 22 The Developnent of the Eknirates in the Twentieth Century 28 1 Political Developnts 28 2 Ecorianic Developnent of the Eknirates and its Effects 33 3 Sane Aspects of Developnent in the Twentieth Century 37 4 Islam and its Effects in the Eknirates 41 5 Joint Actions and the Road to Federation 42 6 The Dubai. Agrenent of 1968 and its Effects 45 7 Developnents of the Idea of the Constitution 50 Footnotes 56 Part chapter ¶I\ 'Lt Significaix of Suprne Qirts in Federal Syst 60 The Role of Supreme Courts in Federal Systems 60 63 Judicial Review in Federal Systems Factors Affecting Judicial Review 69 a) Appointment and Tenure of Judges 69 b) The Nature of Courts System Participation in Judicial Review of Constitutionality 72 Decision-Making Processes: Civil Law and Camon Law Approaches to Collegiality of Judges 76 The Case/Controversy Requirement and Advisory Opinions 78 Conclusion 81 Footnotes 82 Chapter Three Jndicial Review and Judicial Activisu 84 Judicial Review and Judicial Activism in the United States 85 The Deve1oment of Theories Challenging the Traditional Theory of Law and the Role of the Judiciary 88 Judicial Review, Docracy and the Separation of Powers 94 The Binding .iality of the Supreme Court's Constitutional Decisions 98 Judicial Review and Federalism 100 Conclusion 102 Footnotes 104 Chapter Four Jixltcial Review and Substantive (hitce in tI United States 107 Process Based Theories of Judicial Review 109 Substantive Values in the Constitution and the Process-Perfecting Theory 114 The Judiciary and the Correction of Malfunction in the Political Process 118 Intergovernmental Actions and Fundamental Values 122 &uriiiary 124 Footnotes 125 Chapter Five 'flu ctive Role of tt Ccristitutiaia]. Qrt in st Gernny 128 The Special Nature of the West German Legal and Federal Systems and their Relationship with the Constitutional Court 130 The Institutional Independence of the Constitutional Court 132 Selection of Judges and Internal Organisation of Constitutional Court 134 The Constitutional Court and the Interpretation of Basic Law: The South West Case 137 The North-Rhine Salaries Case (1 954) 139 The Television Case of 1961 141 The Constitutional Court and Fundamental Rights in Constitutional Interpretation 1 43 The Active Role of the Constitutional Court in Constitutional Adjudication 145 Footnotes 149 chapter Six Jixilcial Review of the Qxairoe Power of Qxjress ari its Inçact ai tbe Federal Systan in the U.S. 152 Introduction 152 The Ccirrnerce Power 153 The Need for Integration of the Market and the Role of the Suprema Court 154 The Pre-New Deal Decisions (from 1887-1 937) 157 The New Deal and Interstate Camrce 159 The Scope of the Caranerce Power as Established by Jones & Laughlin and Subsequent Cases 162 The Post-i 937 Decisions and the Protective Principle 163 The Ccmerce Power and the Limits Required by the Federal Sysem 165 State Sovereignty as a Limit on Congressional Power 166 Caranerce Clause Limits on State Regulation and the Doctrine of the Dormant Carairce Clause 172 The Contemporary Developiient of Dormant Caiinerce Clause Doctrine 174 The Achievements of Judicial Review Regarding Calinerce Power 177 Footnotes 180 Part Three Chapter Seven The U.A.E. Provisicxal (mstitutiat, tI F3eral Systan arki t1 Saratiai of Powers 185 Footnotes 207 Chapter Eight Supra Qirt in t1 Cistibitii ard tI laws of t.be United Arab 1irates 214 The Ccmposition of the Supreme Court 220 The Cartpetence of the Supreme Court 229 A: The Constitutional Jurisdiction of the Supreme Court 230 Requests for Constitutional Interpretation 1) (Advisory Opinions) - 230 2) Federalism-Based Application of Review (Abstract Norm Control) 233 3) The Reference from Lower Courts for Constitutional Review (Concrete Norm Control) 235 4) The Resolution of Disputes Between the Member thdrates and Between them and the Federal Government 241 5) Constitutional Questions Caning to the Court Through its Role as the Court of Cassation 241 The Role of the Supreme Court in the Federal Balance - 242 1) The Previous Existence of the Enirates as Independent Entities 247 2) The Arrangements in the Constitution Favouring the flnirates - 247 3) The Financial Dependence of Central Government on the Enirates 248 The Cassation Jurisdiction and its Effect on the Court 250 (iaracteristics of Constitutional Review and Interpretation by the Supreme Court in the United Arab Enirates 255 1) Centralised Review 255 2) Unspecialised Court 257 3) Retroactive Binding Effect of Decisions 257 Footnotes 259 Capter Nine The r1y Dain1s for tt Supr (birt' s QxLstitutia1 Interpretatics 270 The Decisions of the Supreme Court Delivered fran 1973 to 1978 270 A The Federal Distribution of Powers in the First Two Applications to the Court 271 The First Application: The Emigration Law Case 272 The Second Application: The Case of Social Security Law 283 The General Approach of the Supreme Court lx the Federal System 289 B The Supreme Court and the Powers of the Federal National Council 289 The Case of Social Security Law 290 The Case of Investment and Developnent Bank Law (The Limits to the Arrnding Power of the National Councils to Bills) 295 C The Constitutional Limitations on the Jurisdiction and Structure of the Federal Judiciary 300 The Case of Enigration Law (The Power of the Supreme Court in the Interpretation of Ordinary Law) 301 The Case of Federal Appellate Courts 302 The Case of Trial of Senior Federal Officials 307 General Observations about the Effects of the Decisions of the Supreme Court Regarding the Federal Judiciary 310 Snary 311 Footnotes 313 chapter Ten The Inoreased Burden on the Supr Ccurt arki the thaflerjes of Substantive