Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal system and alternative care settings.

The Penal Code, confirmed by a 2010 Federal Supreme Court ruling, provides for the “right” of a man to “chastise” his wife and children. Legal provisions against assault and violence are not interpreted as prohibiting corporal punishment. The near universal acceptance of corporal punishment in childrearing necessitates clarity in law that no degree or kind of such punishment is acceptable or lawful. All legal defences for the use of corporal punishment – in legislation or common law – should be repealed, and explicit prohibition enacted of all corporal punishment, however light and whoever the perpetrator.

Explicit prohibition should be enacted in laws relating to all education settings, including public and private, religious and secular. Provisions in the Juvenile Delinquents and Vagrants Act and the Penal Code allowing for flogging of children committed of an offence should be repealed and all judicial corporal punishment of children (under 18) prohibited, including under Sharia law. Explicit prohibition should be enacted in relation to the disciplinary measures permitted in all institutions accommodating children in conflict with the law, in addition to repeal of any legal provisions authorising or regulating flogging of child detainees. Explicit prohibition should also be enacted in relation to all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. The Penal Code 1987 reportedly gives men the legal right to discipline their wives and children, and a 2010 judgment by the Federal Supreme Court reportedly upheld a husband’s right to “chastise” his wife and children provided that beating and other forms of punishment leave no physical marks (Joint submission to the UPR, 2013, from Human Rights Watch, Network for Human Rights Information, Gulf Centre for Human Rights, and Index on Censorship; Submission to the UPR, 2013, from Amnesty International). Legal provisions against violence and abuse – for example in the Penal Code and the Constitution 1971 – are not interpreted as prohibiting corporal punishment of children.

In 2002, draft child laws were being discussed, including a Child Protection Act and a Juvenile Delinquency Act (13 June 2002, CRC/C/15/Add.183, Concluding observations on initial report to the Committee on the Rights of the Child, para. 7); in 2008, the Government reported that it had enacted legislation to regulate the right of children to care and education (16 September 2008, A/HRC/WG.6/3/ARE/1, National report to the UPR, page 25), but we have been unable to identify or examine these laws. According to media reports in 2012, child protection legislation has been drafted by the Ministry of Social Affairs and the Ministry of Interior’s Higher Committee for Child Protection, but we have no further information (e.g. The National, 21 May 2012).

Schools

Corporal punishment is prohibited in schools under article 9 of Ministerial Decision No. 454 (1998). It is considered unlawful in private schools under the Regulation of Behavioural Direction for Private School Students, which states that schools should not resort to non-pedagogic methods for modifying student behaviour, but there is no explicit prohibition. In 2010, the Ministry of Education was reportedly developing a new code of conduct for public schools and private schools were being urged to do likewise, and calls were being made for it to explicitly forbid the use of corporal punishment (DaijiWorld, 3 February 2010).

Penal system

The main federal laws governing juvenile justice are the Penal Code, the Criminal Procedure Code 1992, the Law of Evidence 1992, and the Juvenile Delinquents and Vagrants Act 1976. These criminal laws apply to non-Islamic offences and to most ta’zir (discretionary punishment) offences, but not to hadd (mandatory punishments), qisas (punished by retaliation) and diyah offences (requiring compensation of victims), which are governed solely by Shari’a law. In 2008, the Government reported that the Ministry of Social Affairs was studying a draft law which would improve protection for children, including through the creation of juvenile justice courts, but we have no further information (9 November 2009, A/HRC/10/29, Report of the Human Rights Council on its tenth session, para. 425). The Sharia Courts Act 1996 provides for Shari’a courts to try cases concerning crimes allegedly committed by juveniles, and states that Shari’a punishments shall apply (articles 1 and 2).

In July 2012, the United Arab Emirates acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but in doing so declared that “the lawful sanctions applicable under national law, or pain or suffering arising from or associated with or incidental to these lawful sanctions, do not fall under the concept of ‘torture’ as defined in article 1 of this Convention or under the concept of cruel, inhuman or degrading treatment or punishment mentioned in this Convention”.

Corporal punishment is lawful as a sentence for crime. The Constitution prohibits torture and degrading treatment (article 26) and there is no provision for corporal punishment as a sentence of the courts in the Penal Code, the Juvenile Delinquents and Vagrants Act 1976 or other criminal law. However, child offenders may be subject to corporal punishment under Shari’a law. Punishments include flogging, amputation, and – as retaliation – injury similar to that for which the offender has been convicted of inflicting on the victim.

Islamic law also provides for discretionary ta’zir punishments. Ta’zir offences and punishments are, with some exceptions, codified in the Penal Code and other criminal laws. Article 1 of the Penal Code states: “In crimes of doctrinal punishment (Hadud), retaliation (Qisas), and blood money (Diyah), the provisions of Islamic Shari’a shall be applied. The crimes and disciplinary punishments (Ta’azir) shall be determined according to the provisions of this Code and other criminal statutes.”

While the Penal Code itself does not provide for corporal punishment, according to Shari’a law, ta’zir punishments should be based on the hadd punishments which would be relevant for similar cases, and in practice persons charged under the Code have therefore been sentenced to corporal punishment (Al-Muhairi, B.S.B.A. (1997), “The Incompatibility of the Penal Code with Shari’a”, Arab Law Quarterly, 12 (3), 307-329). The Federal Supreme Court has confirmed that for ta’zir offences which are related to hadd offences that are not covered by the Penal Code, judges have discretion to specify hadd punishments, including flogging (The Ahmad Malik case – Unpublished Shari’a Criminal Cassation Case No. 44 Year 14, on 30 January 1993). According to Amnesty International, in 2007, a court in al-‘Ain sentenced a teenage girl to 60 lashes for having “illicit sex” with a man when she was 14; the sentence was upheld in June 2007 (Amnesty International Report 2007: The State of the World’s Human Rights, London: Amnesty International Publications).

It appears that corporal punishment is unlawful as a disciplinary measure in penal institutions. Penal institutions are regulated by Ministerial Decree No. 471 1995 on the Promulgation of the Executive Regulations for Federal Act No. 43 (1992) Regulating Penitentiaries 1995. Article 86(1) states: “Cruelty, beating, torture or any other manifestation of material aggression against a prisoner shall not be authorised. Any form of psychological abuse shall also be prohibited. Disciplinary action against a prisoner shall be within the limits of specified penalties which are in accordance with the provisions of the law and text of this chapter.” The disciplinary measures do not provide for corporal punishment. However, we have been unable to examine the text of articles 90-103 which provide specifically for young people or the text of Ministerial Ordinance No. 32/3 1983 concerning the statutes of juvenile reform centres.

Alternative care

There is no explicit prohibition of corporal punishment in alternative care settings.

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“Contrary to article 37 (a) of the Convention, the Committee is seriously concerned that there is a possibility that persons under 18 may be subjected to judicial sanctions such as flogging.

“The Committee recommends that the State party take immediate steps to abolish the imposition of flogging and other forms of cruel, inhuman or degrading treatment and punishment to persons who have committed crimes when they were under 18.

“The Committee is concerned that there is insufficient information and awareness of the ill-treatment of children, including corporal punishment, within the family, schools and institutions.

“The Committee recommends that the State party:

1. conduct a study to assess the nature and extent of ill-treatment and abuse of children, and design policies and programmes to address it;
2. take legislative measures to prohibit all forms of physical and mental violence, including corporal punishment and sexual abuse of children in the family, schools and in institutions;
3. carry out public education campaigns about the negative consequences of ill-treatment of children and promote positive, non-violent forms of discipline as an alternative to corporal punishment….”

(13 June 2002, CRC/C/15/Add.183, Concluding observations on initial report, paras. 32, 33, 34 and 35)

Universal Periodic Review

The United Arab Emirates was reviewed in the first cycle of the Universal Periodic Review in 2008 (session 3). The following recommendation was recorded in relation to corporal punishment of adults (12 January 2009, A/HRC/10/75, Report of the working group, para. 62):

“Sweden noted that corporal punishment of adults is practiced in the country, and recommended that (b) it consider legislative changes to repeal corporal punishment and bring legislation into line with international human rights obligations….”

The Government rejected the recommendation (para. 93). However, the Government did accept the following recommendations (paras. 91(11) and 91(12)):

“To vigorously pursue efforts to promulgate a national law guaranteeing better protection for children, and that the general principle of the best interest for the child, as contained in article 3 of the Convention, is fully reflected in that law (Djibouti);

“To enact national legislation to protect the rights of children (Yemen)”

In reporting to the Human Rights Council with regard to the above accepted recommendations, the United Arab Emirates Government stated that “the Ministry of Social Affairs, in consultation with the concerned departments and civil society organisations, was studying a draft law to guarantee better protection for children, including through the creation of juvenile justice courts” (9 November 2009, A/HRC/10/29, Report of the Human Rights Council on its tenth session, para. 425).

The second cycle review took place in 2013 (session 15). The following recommendations were made (30 January 2013, A/HRC/WG.6/15/L.11, Draft report of the working group, paras. 128(127) and 128(133)):

“To elaborate the possibility to eliminate corporal punishment and the death penalty (Estonia); Repeal corporal punishment and the death penalty from its penal system (Argentina);

“Take legislative measures to explicitly ban corporal punishment in all settings, including the home and penal institutions, set up effective complaints mechanisms and provide training in the identification, reporting and management of cases of ill-treatment to teachers, law enforcement and health professionals (Liechtenstein)”

The Government’s response is due by June 2013.