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الاثنين، 2 أبريل 2012

You are not Diaky, dear advocates of reform!


By: Ibrahim bin Omar Al Sakran
When I recognized this painful comparison, I said to myself: “Your problem is that you are not Diaky, advocates of reform!”
Praise be to Allah, and then,
The jurist Sheikh Muhammad Abd Al-Razzaq Al-Siddiq (a member of the World Association of Muslim Scholars and a member of the Islamic Banking Committees), the renowned scholar Dr. Ali Al Hammadi (Head of Center of Creative Thinking), and their fellow brothers Dr. Shaheen Al Hosni (specialist in library science), and Hassan Al Jabri (specialist in charitable work), and Hussein Al Jabri (educational expert), and Ibrahim Al Marzouqi (educational expert), this group are Emirate effective actors, and they are members of the Association of Reform and Social Guidance in the UAE, an official big association headed by Sheikh Sultan Bin Kayed Al Qassimi, and it is the most powerful institutions for advocacy in the UAE. Some of these actors (Siddiqui, Al Hammadi and Al Hosni) participated in signing a letter to Sheikh Khalifa in March 2011, calling him for carrying out fundamental political reforms related to the expansion of popular participation.

In these days, the Emirati and gulf public opinion surprised by a decision, published in the UAE newspapers (Al Ethad, Al Bayan, Emirates Today), issued, on Thursday, December 22, 2011, by Sheikh Khalifa Al Nahyan, stripping these Islamic preachers calling for reform of the (UAE nationality)! The statement stated:
(His Highness Sheikh Khalifa bin Zayed Al Nahyan issued on 9 Muharram 1433, corresponding to December 4, 2011 the decree number (2/1/7857) to withdraw the nationality of the State from: Hussein Munif Al Jabri, Hassan Munif Al-Jabri, Ibrahim Hassan Marzouqi, Shaheen Abdullah Al Hosni, Ali Hussain Al Hammadi, and Mohamed Abdul Razak Al Siddiq. This is because they carried out some acts which threatened the state security and safety. The source said that they had worked during the past years with some organizations and personalities of regional and international suspect. They also associated with some suspicious organizations, which included in the lists of the United Nations for combating the financing of terrorism. The official source in the General Department for Nationality and Residence and Ports, at the end of his statement, emphasized that making this decision is one of the sovereign acts of the State) [See: Al Ethad, Al Bayan, Emirates Today, December 22, 2011].
This painful decision, indeed, is beyond the beautiful stereotype known of UAE rulers. It firstly needs to be legally examined, to see whether it meets the legal requirements in order to be applicable or effective?
Actually, this decision is illegal, and includes a number of reasons for nullity. It contradicts with some legal principles, as follows:
- Withdrawal of nationality can’t be carried out except by a decree:
The Emirate legal framework regulating the process of withdrawal of nationality in the UAE is the law of nationality and passports (no. 17/1972), in which Article (20) identifies: (Nationality of the state is granted by a decree, upon the submission of the Minister of the Interior, and the approval of the Council of Ministers, and is dropped by the same previous procedure) [Nationality Law: article 20].
The reader can easily notice that the withdrawal of nationality must be carried out by a (decree), and this decree shall be deemed approved by the Council of Ministers.
The concept of decree is confirmed by this article in the law of nationality; which stated in a supreme legal framework, namely the constitution of the country. The text of the constitution provides that the decree have two characteristics: (cabinet approval, and publication in an official newspaper), where Article (114) of the Constitution of the United Arab Emirates states the following:
(No decree may be issued unless the Council of Ministers has confirmed it and the resident of the Union or the Supreme Council, according to their powers, has ratified it. Decrees shall be published in the Official Gazette after signature by the President of the Union) [Constitution of the United Arab Emirates: article 114].
Well, till the current time nothing has been published in the official gazette in this specification; a legal requirement stipulated in the Nationality Law of UAE, but what have dealt with in the media so far either just a "decision" or news about a "decree".
- No withdrawal of nationality except with condemnation, and no condemnation without trial:
Emirati nationality law clearly defined the cases that justify the withdrawal of nationality, which is only four cases: the aggression against the security of the state, repeating heinous crimes, fraud in the data of nationality, continuous residence outside the state for more than four years [Nationality Law: article 16].
It is noted that three cases are (criminal descriptions), which are not in the hands of the executive authority, but in the hand of the judiciary. Therefore, some commentators on (the UAE Private International Law) believe that stating the verification of these crimes is some kind of the discretion available to the executive authority. In my point of view, this is wrong, because the criminalization and punishment are judicial process organized by the Constitution of the UAE; a higher authority than ordinary laws. So, if the texts of these laws might imply multiple meanings and some of such meanings are contrary to the Constitution, the texts contrary to the Constitution will be deemed null and void. The constitutional principle, which restricts this case, is as follows:
(Penalty is personal. An accused shall be presumed innocent until proved guilty in a legal and fair trial. The accused shall have the right to appoint the person who is capable to conduct his defense during the trial. The law shall prescribe the cases in which the presence of a counsel for defense shall be assigned.) [Constitution of the United Arab Emirates: article 28]

This constitutional principle requires that the executive authority cannot convict the accused of committing an act threatening the security of the state, because the Constitution required a fair trial for conviction. At the lack of a fair trial; the accused person remains innocent, and if the accused is still presumed innocent, then the description justifying for the withdrawal of nationality is null and void.
It should be taken into account the fact that the UAE law differentiates, like many legal systems, between (the withdrawal of nationality) and (the dropping of nationality). Moreover, it states some especial justifications for each of them. Actually, this is not our subject, as our main topic is (withdrawal of nationality).
- Decree of withdrawal of nationality is managerial not sovereign decision:
The news published in the newspapers pointed out that the decision to revoke nationality is a sovereign decision; a proactive signal implies that such decision cannot be legally appealed. But, in fact , a number of commentators of the Private International Law shed light on some judicial cases in which the Supreme Court of the Union taken some judicial judgments. The Supreme Court of the Union is the highest judicial authority in the UAE, as stipulated in the (Constitution: article 100). It also has the power to control the constitutionality of laws (the Constitution: article 99). The Supreme Court of the Union established the principle of controlling the correctness of measures taken in the decision to withdraw nationality.
This means that even if the executive authority has the right of discretion in determining whether the offense necessitates the withdrawal of nationality happened or not, the court has the right of judicial control over the soundness of the legal mechanism for the withdrawal of nationality, and verification of the non-abuse of power.

- Political criticism and establishing of associations are not a crime, but a constitutional right:
The decision totally ascribed some acts to the callers of reform of the withdrawn nationalities, but such acts are not criminal at all, rather, they are constitutional rights guaranteed to every citizen in the UAE. The right of political criticism and the right of assembly both are mentioned in the Part III of the Constitution, which states:
(Freedom of opinion and expressing it verbally, in writing or by other means of expression shall be guaranteed within the limits of law) [UAE Constitution: Article 30].

So, everything said and expressed by the advocates of reform is within the limits stipulated by the above article and covered by the constitutional restriction.
As for their participation in the work of an Islamic group, this is a constitutional right guaranteed to the citizen in the UAE as stated in the Constitution (Freedom of assembly and establishing associations shall be guaranteed within the limits of law) [Constitution of the United Arab Emirates: article 33]. Moreover, the Reform Society which they had participated in is a licensed association headed by Sheikh Sultan Bin Kayed Al Qassimi. This means that all acts, inspired by the published news, are legitimate under the Constitution, and guaranteed to every citizen in the UAE. So, how can such acts be deemed a criminal offense? How could they be a pretext for the withdrawal of nationality?!

- Serious legal consequences for the withdrawal of nationality:
Of the most painful things is that the law of withdrawal of nationality in the UAE allowed the withdrawal of nationality of children and wife of the man whose nationality is withdrawn. The article reads as follows:
(If the nationality of a person is withdrawn, the nationality of his minor children and wife may consequently be withdrawn) [Nationality Law: M 16/4].
This principle, in fact, is a violation of the constitutional principle on the character of punishment, because it made the penalty applicable to the innocent who have no connection with the crime of the father. In some explanations of Private International Law, there are some justifications for such violations, but they are faint. The withdrawal of nationality of wife and children is accumulated grievances!
- Political consequences
Actually, introducing the withdrawal of nationality, as a new weapon in combating the reform vote, is an unusual methodology in the region. The first application to it in the Gulf is, unfortunately, by some influential figures in the UAE.
Frankly and clearly, in the midst of the hot interactions regarding this topic, I found at familiar factors in the scene of the event, but I missed one thing, a necessary factor, namely the absence of (the wisdom of treatment) by Sheikh Zayed, may Allah have mercy on him. The venerable person, whose kindness covered everyone, used to address matters with no sophistication and tranquility. Unfortunately, such kindness faded from the scene. I hope his sons did not bury his wisdom with him.
To this degree could man be humiliated in a Muslim Gulf country?! It is not correct to expect that the seven persons, whose nationality was withdrawn, are in danger; rather, we all, in fact, became in danger and feared that the withdrawal of nationality might be applied on us.
Interestingly, the six figures are Sunni Muslims, and call for the Approach of the Sunnis; however, the dictators allege they carry out an Iranian agenda! If this is the reason for stripping nationality, there are well known Shiite persons whose nationalities should therefore be withdrawn.
It is a well known fact that some influential figures in the state security apparatus had a big illusion about the danger of Islamic trends, so they make clumsy decisions to prevent some Islamic figures, known for tolerance, from entering to the State. This was known, but on a limited scale, the problem today is that this illusion began to leak out from the minds of some leaders of state security and nestles in the minds of some influential political figures.
In my opinion, this event is so tragic in the UAE and more serious than the incidents of oppression in the Gulf region in general, and in the UAE in particular. If this issue to go calmly, withdrawal of nationality would become a sword against the necks of the speakers and callers for reform. Besides, everyone would search for his nationality after every word of criticism he says!
In any event, when I read this painful news about the withdrawal of the nationality of the advocates of reform in the UAE, I remembered a news story published in 2006 by Al Bayan newspaper, which was boasted for being the first newspaper to publish such story. This news was about granting a football player, "Diaky", the UAE nationality. The football player happily said:
(My feel is indescribable, I am very happy I got UAE nationality,) [Al Bayan, UAE, September 10, 2006]
When I recognized this painful comparison, I said to myself: “Your problem is that you are not Diaky, advocates of reform!

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