Nation's legal checks are in urgent need of rebalancing

The UAE's court system has structural problems that create real difficulty in handling certain kinds of cases.

At an Abu Dhabi hotel restaurant in May 2010, Amr Al Azhari and his fiancée ordered seafood and duck liver. His fiancée then complained her fish tasted strange. Al Azhari exchanged his dish with hers, believing she was finicky because she had a cold.

Within hours of reaching home, symptoms of food poisoning began to show in Al Azhari. The following afternoon he was taken to Al Salama Hospital, where, according to court documents, a doctor diagnosed him with stomach and respiratory infections.

Later that evening, the family called the doctor because the 27-year-old Egyptian described symptoms of paralysis. The doctor told the family to give him painkillers and, after the family failed to find the needed drugs at nearby pharmacies, the doctor told them to place his head under cold water. The family insisted on taking him back to the hospital, where his body broke out in brown spots.

Even then, according to the family, the doctor remained convinced it was a minor case until another doctor immediately recognised he had food poisoning.

Then a third doctor told family members to leave the room and that Al Azhari had typhoid fever. A few minutes after that, he informed them Al Azhari had died.

Such cases of misdiagnosis and medical errors, even in routine cases, are common around the world. In the UAE, authorities have taken measures to reduce these errors by hiring better doctors and improving the system of licensing and management. But the story of Al Azhari highlights deeper challenges in the legal system, most important the poor coordination between courts.

Both the Court of First Instance and the Court of Appeals cleared the restaurant and the hotel of negligence leading to death. Prosecutors had not included the hospital in the charge sheet, although judges and officials from Health Authority-Abu Dhabi later said the hospital was at fault. The verdict effectively left no one liable for Al Azhari's death.

I covered the case for The National when it was handled by the two courts early in 2011. Last week, I contacted the family to ask what has happened to the case. They said that the justices of the Court of Cassation, Abu Dhabi's highest court, sent the case back to the Public Prosecution because they found that the doctors should have been included in the case and not only the hotel and restaurant staff. Prosecutors made the change and the case is now back in the Court of First Instance for new hearings.

Nearly three years after the man's death and two years after the case reached the courts, justice for Al Azhari has not been served. Al Azhari's mother attends every hearing and after hearings, she sometimes goes to the judges and asks them to speed up the process.

"She doesn't want any penny from them as compensation," Khaled, Al Azhari's brother, wrote to me. "She only wants them to be convicted, especially that [one of the defendants] is free and goes in and out the country ignoring the court's requests to attend the sessions."

The story has a valuable lesson about how the court system should operate in the UAE. The country's high courts have addressed complex issues such as medical liability and set legal precedents on trial and conviction. Yet these important precedents often do not trickle down.

Courts around the world have checks and balances between the different levels of appeal. But in the UAE a lack of communication between the different courts, particularly on issues such as liability and compensation, can delay justice.

Lower courts here tend to shun precedents set by high courts unless a case is sent back with a specific ruling; in this case, the lower courts have to rule according to the finding of the high court. But that is not the case if a lawyer, for example, presents a legal precedent to judges at lower courts, as the judges have the discretion to ignore it saying "different judges have different interpretations".

High courts have an advantage over lower courts in terms of the quality of rulings. Judges at high courts have more time for deliberation due to the typically lower number of cases in their hands. High courts also study the merit of previous verdicts rather than simply hearing a case and issuing a judgment.

Additionally, high courts tend to take into account the wider context in the country. While lower courts follow a philosophy of deterrence and therefore tend to be tougher in their verdicts, high courts consider the interests of the wider community and the verdict's implications.

Take the case of a Muslim Sudanese man who stabbed his Christian girlfriend 17 times after he suspected she was having an affair. Although Abu Dhabi's lower courts found him guilty of premeditated murder, in December 2010, he was sentenced to 15 years in prison because under the Maliki school of Islamic law, the system officially adopted in UAE courts, a Muslim cannot face execution if the victim is a non-Muslim.

The Court of Cassation rejected the verdict and ordered the case to be retried under a different school, called Hanafi, that calls for the death penalty in such cases. The reasoning provided in the court was to ensure equality as the victim was a resident of the country and therefore entitled to protection, security and sanctity for her "blood, honour and money".

Dynamic rulings by the country's high courts are essential to help modernise old legal practices. Similar rulings must become more common in the nation's lower courts.

On Twitter: hhassan140