May 18, 2022
In November 2021, Emirati state news agency WAM announced the amendment of 40 federal laws.[i] The announced legal changes included the enactment of a new Federal Crime and Punishment Law (penal code) that came into force in January 2022.[ii] This new code replaced the previous one, which dated from 1987. According to the state news agency, the new penal code would offer “enhanced protections for women and domestic servants, strengthen public safety and security provisions and ease restrictions on extra-marital relationships.”[iii]
While some media sources welcomed changes such as the decriminalisation of premarital sexual relations and alcohol consumption,[iv] the revision of some provisions on public safety and security are worrying as they impose further limitations on freedom of expression and, more specifically, on any form of criticism against the government. This is particularly concerning considering the country’s continued practice of prosecuting those who express dissenting opinions.[v] Furthermore, while the government framed this as “the largest legal reform” in the country’s history, it did not take this opportunity to revise the problematic provisions of the previous code, which were simply replicated into the new one. More specifically, in 2018, an amendment to the penal code was enacted and introduced into the code multiple provisions that, due to their broadness and associated harsh sentences, enabled further crackdown on any form of dissent. The new code did not remove or amend these concerning provisions.
This analysis thus focuses on the section of the penal code that regulates crimes affecting the internal security of the state, highlighting the changes made to this section in the past 5 years (that is, through the 2018 amendment and the enactment of the new penal code), which increasingly restrict the rights to freedom of opinion and expression, assembly and association, as well as the right to receive and communicate information.
The section regulating crimes affecting the internal security of the state in the new penal code is largely based on the previous one, which contained worrying provisions criminalising the exercise of fundamental freedoms and rights, especially those enacted with the 2018 amendment. This first section thus lists the most relevant legal changes made to the penal code in the past 5 years, focusing on the ones that, directly or indirectly, target dissent. The following sections will, in turn, assess the provisions’ compliance with the applicable human rights framework.
The 1987 penal code (in article 176) punished with detention the act of publicly insulting the President, flag or the national emblem of the state. With the 2018 amendment, this provision was split into two (article 176 and 176 bis). The first one (article 176) increased the penalty from detention to imprisonment for a period between 15 and 25 years, in addition to a fine, while at the same time removing references to the flag or emblem of the state (which were included in article 176bis). The second one (article 176bis), criminalised not only insulting the flag or national emblem, but also included a reference to national symbols. The penalty was also increased from detention to imprisonment between 10 and 25 years and a fine.
The code that came into force in January 2022 further amended these provisions (now articles 183 and 184) by criminalising, in the first case, not only insulting but also mocking or harming the reputation of the president. Similarly, the second article was amended to include a reference to mocking, insulting or harming the reputation of not only the flag, national emblem or national symbols but also the state itself, its institutions or officials, its founding members, and the national anthem.
Lastly, the new code kept in its entirety a provision introduced in the 2018 amendment which criminalises publicly declaring “hostility to the state or the governance system or disloyalty to its leadership” (in 2018, this was article 201(bis)(4), while in the new code this provision can be found in article 222).
The 1987 penal code criminalised (in article 180) the establishment, founding, organising, or administering of an association, corporation, organisation or any branch thereof, with the intent to overthrow the regime of the state. The 2018 amendment increased the number of criminalised acts, the types of organisations covered and the intents behind the actions of such organisations. The criminal acts thus started including, on top of the previous ones, “leading”, “joining”, “following” and “cooperating”. “Group” and “gang” have additionally been added to the types of organisations concerned. Lastly, since 2018, the intent behind the actions of such organisations also includes, in addition to the previous ones, disrupting the constitution or laws or the basic principles on which the governance system is based, preventing one of the state institutions or members of authority from completing their tasks, violating the personal freedoms of the local population or the rights guaranteed by the constitution and harming national unity or social peace. The penalty associated with such actions has also been increased from temporary imprisonment to life imprisonment or death.
This article was complemented by two new ones in 2018. The first one (article 180 (bis)) punished with imprisonment from 15 to 25 years individuals who promote (verbally, in writing, or in any other way) any of the acts or purposes stipulated above (in article 180). The same penalty applies to those who possess any papers, publications or recordings that promote such acts and purposes, as well as to those who possess any means of printing or recording that is used or prepared for use, even temporarily, to print, record or broadcast any of the above materials.
The second article (article 181) punished with death or life imprisonment instituting, organising, administering, joining or following any type of organisation that aims to undermine national security or interests.
The new penal code transcribed all three 2018 provisions in their entirety into articles 188, 189 and 190, respectively, and further added two new articles in relation to them. The new articles (191 and 192) punish, with imprisonment of at least five years, those who gather, obtain or receive money directly or indirectly to achieve the purposes stipulated above (in articles 188, 189 and 190) and those who engage in activities of teaching or giving advice or training to achieve one of the purposes stipulated above, whether directly or through information technology devices.
The 2018 amendment included a provision (article 197(bis)(1)) criminalising the act of being “a part of a crowd to prevent or obstruct the application of laws and regulations, where such matter may create hazard to the peace or public security”. The penalty was temporary imprisonment and a fine, which was increased to imprisonment of at least five years if “the purpose of taking part in a crowd is to commit a crime” and to at least 10 years “in case one person or more forming a part of the crowd are carrying firearms, whether visible or concealed, even if they are authorised.”
The new penal code brought changes to this provision (now article 210), which now punishes those who participate in a gathering of at least five people in a public place with the intention of rioting, preventing or obstructing the implementation of laws and regulations or that would prejudice public security. Again, penalties vary according to the results of the action, starting at imprisonment of at least a year, increasing to at least five if the gathering leads to rioting, disturbing peace or public security, disrupting the interests of individuals, harming them, exposing them to danger, preventing them from exercising their rights, obstructing traffic, assaulting lives or public or private property or endangering it. As was the case in 2018, imprisonment of at least 10 years is applied if one or more of those who make up the gathering carry visible or concealed weapons, even if they are licensed to carry them.
The new penal code also adds two related articles. The first one (article 211) prescribes imprisonment for at least 10 years for anyone who offers, gives or obtains financial resources or any benefit to organise a gathering with the intention of committing any of the abovementioned acts. The second (article 212) punishes with life imprisonment whoever calls for such gatherings, even if the call is not followed.
The 2018 amendment included two provisions that limit the dissemination of information. The first one (article 197(bis)(2)) punished those who by any means disseminate information or news that endangers the security of the state or harms public order. The same provision was included in the new penal code (article 215).
The second (article 198(bis)), in turn, criminalises disseminating or possessing with the intent of sharing, any news, statements, false or malicious rumours or disruptive propaganda that disturbs public order or spreads terror among the population or harms public interests. The penalty is imprisonment of at least a year. In the new penal code, article 217 (transposing article 198(bis)) goes further and also forbids the sharing of any type of information that incites public opinion. The new code also foresees a harsher sentence of imprisonment of not less than two years and a fine of not less than 200,000 dirhams if public opinion is incited against a state authority or institution.
Article 11 of the Universal Declaration of Human Rights (UDHR) lays down the principle of legal certainty, according to which no one shall be held criminally responsible for an action that was not considered a crime at the time it was committed. This principle “requires that criminal laws are sufficiently precise so it is clear what types of behaviour and conduct constitute a criminal offense and what would be the consequence of committing such an offense. This principle recognizes that ill-defined and/or overly broad laws are open to arbitrary application and abuse.”[vi]
In this regard, in 2020, multiple UN special mandates holders expressed concern over the 2014 Emirati Law on Combating Terrorism. Among the experts’ concerns was the fact that the wording of the criminal provisions included in that legislation was sometimes overly broad, imprecise and ambiguous, to the point that they may undermine the principle of legal certainty. The problematic expressions used in that law included “opposing the country”, “posing a threat to the country”, “prejudicing national unity”, and “contradicting the basic principles underlying state governance.”
Despite the aforementioned concerns, the 2021 penal code shows that the UAE did not take the considerations of the UN special procedure mandate holders into account as the new criminal legislation includes a great number of vague, imprecise and ambiguous expressions, including repeating some of the wording criticised by the experts. Many of the provisions that include such language came about from the transposition of articles included or modified by the 2018 amendment.
For example, as mentioned above, article 222, which transposed a provision inserted in 2018 (article 201(bis)(4)) to the new penal code, criminalises publicly declaring hostility to the state or the governance system and disloyalty to its leadership, while article 188 (previously article 180, also amended in 2018) punishes multiple forms of involvement in any type of organisation aiming, among others, to harm national unity or social peace or to disrupt the constitution, laws, or the basic principles on which the governance system is based. These expressions are almost identical to those criticised by the UN experts due to their imprecision. Indeed, none of these concepts is defined neither in the law on combating terrorism nor in the penal code.
Furthermore, the penal code goes on to insert more imprecise wording, such as in article 210, which builds on the 2018 amendments to further criminalise gatherings with the aim of rioting, preventing or obstructing the implementation of laws and regulations, or that would prejudice public security. Similarly broad is the wording used in article 217, which punishes those who share news, statements, false or malicious rumours or sensationalist propaganda that, among others, incites public opinion. As was the case in the 2014 Law on Combating Terrorism, the penal code does not attempt to define these expressions in order to clarify their scope and meaning.
The broad wording of the abovementioned articles opens a great margin for interpretation for decision makers and, as such, makes it “difficult for an individual or organisation to regulate their conduct or operations according to the law when the law itself does not properly limit or even enunciate the activities it is criminalizing.”[vii] Consequently, multiple provisions of the new penal code are contrary to principle of legal certainty as prescribed in article 11 UDHR.
The abovementioned lack of legal certainty is even more concerning when taking into account the severe sentences associated with such ambiguous offences. As mentioned above, article 188 of the current code (transposing article 180, as amended in 2018) foresees that someone who in any way engages with any type of organisation pursuing vague goals such as, among others, disrupting the constitution or laws or the basic principles on which the governance system is based, may be punished with death or life imprisonment. Before the 2018 amendment, this article foresaw temporary imprisonment for this crime. Thus, the 2018 amendment, kept in its entirety in the new penal code, not only made the description of the crime even more vague by introducing further ways of engagement, more types of organisations and including more unclear goals that such organisations may have, but also attached the most severe penalty to these undefined acts.
Similarly, article 190 (transposing article 181 introduced by the 2018 amendment) punishes with death or life imprisonment instituting, organising, administering, joining or following any type of organisation that aims to undermine national security or interests.
According to the UN safeguards guaranteeing protection of the rights of those facing the death penalty, “capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.”[viii] The provisions at hand (articles 188 and 190), however, do not seem [AT2] to rise to such a high level of seriousness, especially considering their almost all-encompassing wording.
Besides this worrying inclusion of the death penalty, the sentence associated with the crime of insulting, mocking or harming the reputation of the president was also increased in 2018 in comparison to the previous code. While the 1987 penal code foresaw a penalty of detention for those convicted for this crime, the new penal code, following the 2018 amendment, prescribes imprisonment from 15 to 25 years. Furthermore, as mentioned above, the new code also enlarges the scope of the provision.
Lastly, it is also worth recalling that the newly introduced article 212 prescribes life imprisonment for those who call for or lead a gathering with the intent of committing riots, preventing or disrupting the implementation of laws and regulations, or disturbing public security, even if the call is not accepted. Once more, this exemplifies the frequent association of severe penalties and lack of legal certainty in the new penal code.
When analysing the Emirati Law on Combating Terrorism, UN special mandate holders expressed their concern over the fact that such legislation may impact the enjoyment of fundamental rights such as freedom of opinion and expression, freedom to receive and communicate information and ideas, and the freedoms of peaceful assembly and of association,[ix] and possibly allow the prosecution of certain forms of criticism or dissent as terrorism.[x]
As was the case with the concerns expressed over the broad and imprecise wording used in Emirati legislation, these concerns were also not taken into account when drafting the new penal code, as the abovementioned provisions of this legislation can also be said to impact the enjoyment of fundamental rights, in particular those already highlighted by UN experts, as shown below.
Multiple provisions of the new penal code criminalise speech that, among others, harms the reputation of the president, governance system or national institutions or symbols, or demonstrates hostility or disloyalty towards the state. These provisions directly limit the right to freedom of expression. While this right may indeed be limited to prevent certain types of harm (such as that arising from hate speech), limitations must respect the principles of legality (including legal certainty), necessity and proportionality,[xi] and thus governments limiting this right must show that the imposed restrictions are the least intrusive measures to achieve a legitimate goal in a given situation.
In the present case, however, the imprecise and broad wording of the relevant provisions of the penal code do not seem to meet these requirements. Instead, as was feared by the UN experts in relation to the Law on Combating Terrorism, the wording of the penal code provisions indicate that they may be used to punish those who express legitimate criticism against the government, thus disrespecting the right to freedom of expression as enshrined in article 19 UDHR. Indeed, the fact that certain forms of expression may harm the reputation of a public figure cannot on its own justify an interference with free speech, as criticism and political opposition are an essential part of public debate.
Moreover, several international and regional mandate holders on the right to freedom of opinion and expression clearly noted in a Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda[xii] that prohibiting the dissemination of information based on vague concepts such as “false information” (as is the case of articles 215 and 217) was incompatible with international standards for the protection of freedom of expression.
Also enshrined in article 19 UDHR is the right to seek, receive and impart information and ideas through any media and regardless of frontiers. The new penal code, however, criminalises the dissemination of any kind of information that endangers the security of the state or harms public order, spreads terror among the population, harms public interests, or incites public opinion. As noted above, such vague and imprecise wording allows for a broad interpretation of these terms.
Indeed, similar wording in the Emirati Law on Combating Terrorism led UN special mandate holders to claim that the provisions in that law “could ostensibly be used in a way that could restrict or prevent journalists, human rights defenders, civil society, political or religious groups and other actors from carrying out their legitimate activities.”[xiii] The same can be said about these provisions of the new penal code, which may be used to further crack down on any form of dissent as well as limit the discussion and research of any topic that contradicts the government’s official discourse in the name of national interest.
Article 20 UDHR prescribes the right to freedom of peaceful assembly and association. The Emirati constitution[xiv] foresees the protection of this right in article 33 by prescribing that “[T]he freedom of assembly and the freedom to hold meetings shall be guaranteed within the limits of the law.” Despite such a provision, the government places great restrictions on freedom of assembly. Public meetings require government permits, and unauthorised political or labour protests are subject to dispersal by police, which leads to demonstrations being rare in practice.[xv] Non-governmental organisations (NGOs) must register with the Ministry of Social Affairs and can receive subsidies from the government, which maintains broad discretion to interfere and dictate the operations of associations in the country.[xvi]
In this regard, article 188 of the new penal code (transposing article 180, as amended in 2018) is, once again, of particular concern, as it foresees the possibility of applying the death penalty for almost any form of involvement with any type of organisation aiming at overthrowing the regime of the state, disrupting the constitution or laws or the basic principles on which the governance system is based, preventing one of the state institutions or members of authority from completing their tasks, violating the personal freedoms of the local population or the rights guaranteed by the constitution, and harming national unity or social peace.
While some of the actions comprised in this article may justify imposing restrictions to the freedom of association, the expressions used are too broad to allow the average person to foresee all acts that may be considered to fall under this provision. Consequently, the lack of legal certainty associated with this wording, together with the unjustified use of the death penalty, result in the current provision not complying with the requirements of legality, necessity and proportionality. Such a great interference with the right to freedom of association is therefore not justified.
Similarly, the right to freedom of peaceful assembly is severely limited in the code’s broad prohibition of gatherings with the goal of rioting, preventing or obstructing the implementation of laws and regulations, or that would prejudice public security, as none of these terms are defined. Again, the overly broad interpretation allowed by this provision does not comply with the requirement that a limitation to a fundamental right must clearly prescribed in law.
One of the goals of the new penal code was to strengthen public safety and security in the UAE. In practice, however, the provisions concerning the internal security of the state contain broad, vague and unprecise wording, which allows for them to be interpreted in ways that effectively suffocate all dissenting voices in the country. In this regard, the new code, instead of repelling concerning provisions inserted by the 2018 amendments, built on them and further restricted the exercise of fundamental rights and freedoms in the country.
Consequently, MENA Rights Group argues that the new penal code is incompatible with multiple articles of the UDHR, especially article 11, prescribing the principle of legal certainty, article 19, establishing the right to freedom of expression and to receive information, and article 20, which prescribes the right to freedom of peaceful assembly and association.
We thus urge the UAE to amend its penal code and properly define the acts that are considered criminal. This amendment should ensure that no provision can be interpreted in a way that punishes legitimate criticism against the government or its policies and does not impose disproportionate restrictions on fundamental rights. Furthermore, it should also review the disproportionate penalties that were included, most notably the application of the death penalty prescribed in articles 188 and 190.
[ii] In the UAE, matters related to internal security fall under the legislative competence of the Union (article 120, Emirati Constitution). Union laws are drafted by the Council of Ministers and revised by the Union National Council, before being ratified by the Supreme Council of the Union (article 110, Emirati Constitution). All these Councils are executive bodies.
[iii] “UAE adopts largest legislative reform in its history”, op. cit.
[iv] Lisa Barrington, “New UAE criminal code among 40 legal changes in reform push”, Reuters, 27 November 2021, https://www.reuters.com/world/middle-east/new-uae-criminal-code-among-40-legal-changes-reform-push-2021-11-27/ (accessed 20 April 2022).
[v] MENA Rights Group documented multiple cases of individuals detained, mistreated and/or prosecuted in the UAE for expressing their opinion, often in criticism of the government. These cases concern the following individuals: Mohamed Saqer Al Zaabi, Hamad Al Shamsi, Saeed Al Tenaiji, Abdulsalam Mohamed Derwish Al Marzooqi, Ahmed and Muhammad Al Nuaimi, Hasan Munif Abdullah Al Jabri, Khalid Mohammad Al Shaiba Al Nuaimi, Mohammed Abdulrazzak Al Sidiq, Omran Ali Hassan Al Harthi, Taysir Hasan Mahmoud Salman, Ahmed Al Atoum, Ahmed Mansoor, Amina Mohammed Al Abdouli and Maryam Suliman Al Balushi.
[vi] Mandates of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Working Group on Arbitrary Detention; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; and the Special Rapporteur on the situation of human rights defenders, Comments and suggestions on the 2014 Law No. 7 On Combatting Terrorism Offences (Law 7) which abrogated Federal Decree-Law no. 1/2004, 13 November 2020, UN Doc. OL_ARE_6/2020, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25663 (accessed 20 April 2022) (hereinafter “Comments and suggestions on the 2014 Law No. 7 On Combatting Terrorism Offences”), p. 2.
[vii] “Comments and suggestions on the 2014 Law No. 7 On Combatting Terrorism Offences”, op. cit., p. 7.
[viii] Economic and Social Council, Safeguards guaranteeing protection of the rights of those facing the death penalty, 25 May 1984, Economic and Social Council resolution 1984/50, https://www.unodc.org/pdf/criminal_justice/Safeguards_Guaranteeing_Protection_of_the_Rights_of_those_Facing_the_Death_Penalty.pdf (accessed 21 April 2022).
[ix] “Comments and suggestions on the 2014 Law No. 7 On Combatting Terrorism Offences”, op. cit., p. 1.
[x] “Comments and suggestions on the 2014 Law No. 7 On Combatting Terrorism Offences”, op. cit., p. 9.
[xi] David Kaye, “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression”, UN General Assembly, 6 September 2016, UN Doc. A/71/373, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N16/278/27/PDF/N1627827.pdf?OpenElement(accessed 22 April 2022).
[xii] United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, “Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda”, 3 March 2017, https://www.osce.org/files/f/documents/6/8/302796.pdf (accessed 11 May 2022).
[xiii] “Comments and suggestions on the 2014 Law No. 7 On Combatting Terrorism Offences”, op. cit., p. 9.
[xiv] English version available at: https://menarights.org/sites/default/files/2016-11/UAE_Constitution_2004_EN.pdf.
[xv] Freedom House, Freedom in the World 2021 – United Arab Emirates, https://freedomhouse.org/country/united-arab-emirates/freedom-world/2021 (accessed 27 April 2022).
[xvi] CIVICUS: World Alliance for Citizen Participation, Gulf Centre for Human Rights and International Service for Human Rights, United Arab Emirates - Joint Submission to the UN Universal Periodic Review 29th Session of the UPR Working Group, http://www.civicus.org/images/Joint.UPRSubmissionUAE.pdf (accessed 27 April 2022).