Corporations Representing Themselves: Is it Constitutional? (Commentary on the Executive Regulations of the Civil Procedures Law)

Corporations Representing Themselves: Is it Constitutional? (Commentary on the Executive Regulations of the Civil Procedures Law)

In the Name of Allah the Merciful:

Between December 2018 and January 2019, the Executive Regulations of the Civil Procedures Law were approved and promulgated (the “Regulations”).

The Civil Procedures Law (Federal) was promulgated on February 24, 1992. It is one of the matters that the Federal Government is responsible for legislating according to Article 121 of the Constitution.

The first amendment to the Civil Procedures Law was in 2005 (Law No. 30 of 2005), followed by the second amendment in 2014 (Law No. 10 of 2014), the third amendment in 2017 (Law No. 10 of 2017), and finally the fourth amendment in 2018 (Law No. 18 of 2018).

The amendment to Article 3 (1 bis) of the third amendment allowed the Council of Ministers (the Executive Branch) to issue a regulation to civil procedure in nine matters that were regulated in the Civil Procedures Law itself.

This was the first time that the Legislator authorized the Executive Branch to legislate in a field that is generally exclusive to the Legislator. In this particular instance, that field is any law that governs litigation (procedural laws) as is stipulated in Article 121 of the Constitution.

Can the law authorize the Executive Branch to enact legislation even in some litigation proceedings? A constitutional interpretation may be required from the Federal Supreme Court.

In the past, there were calls for a simple mechanism to amend the rules of Civil Procedure Law to avoid the requisite steps to amend the law itself because of their length and complexity to do so that are not commensurate with the speed of life in a vibrant society such as the UAE.

Whatever the conclusive opinion was at that stage, the Regulations have been issued and are now a reality.

Some lawyers see that the Regulations – in some articles – affected their interests, arguably contravening the Constitution and Federal Law No. 23 of 1991 On the Regulation of the Legal Profession (the “Legal Profession Law”). For example, Article 26 of the Regulations authorizes a private legal person to appoint an employee to appear and represent the former before a case management office or a competent court. Consequently meaning that the services of lawyers will slowly diminish. There other arguable contraventions of articles of the Legal Profession Law such as Articles 1, 2, 6, 10, 20, and 21.

Another argument posed by lawyers is that Article 5/3 of the Regulations, that requires translations of the court summons to English if the defendant is a national of a non-Arabic speaking nation, violate the provisions of Article 7 of the Constitution.

Additionally, some argue that Articles 28, 33, 59, 72, and 82 of the Regulations contradict the requirements of exercising the right of complaint provided for in Article 41 of the Constitution, and potentially also in contravention to Article 36 of the Civil Procedures Law.

The ambiguity in the harmony of the Regulations with standing laws (and the Constitution) may potentially lead to a flood of administrative cases before the administrative circuit with motions for the cancellation of the Decision of the Council of Ministers No. 57 for the Year 2018 which promulgated the Regulations. Indeed, there are a number of lawyers that have already filed such motions.