ABU DHABI // Mandatory testing of drug offenders is not authorised by law, but should be legally regulated to prevent improper convictions, judicial officials and a new academic study say.
Former drug offenders are required to undergo monthly drug check-ups for two years after completing rehabilitation or their prison term. The tests can be administered without warning, and are meant to ensure that offenders do not return to drug abuse.
But the scheme, according to legal experts and the Federal Supreme Court, is not sanctioned by law.
"The Ministry of Interior's internal regulations governing the scheme are a gross violation of the Constitution and the law," Jassim al Naqbi, an Emirati legal consultant, wrote in a study he conducted at United Arab Emirates University, Al Ain.
A high-ranking official at the Federal Supreme Court confirmed that "this police procedure is not mentioned in the anti-narcotics law.
"In the United States, there is a law that regulates such a practice, but we do not have that here," said the official, who did not want to be named. "There is no law that says the police can put someone under this system."
The Supreme Court official confirmed that police were not allowed to detain an offender for not taking a drug test. UAE law only allows arrest if police have evidence that a crime was committed, he said. And skipping a drug test, regardless of the consent form, is not a crime, experts said.
As a way to prove people took the test of their own accord, the Supreme Court official said, the police have them sign a consent form. But lawyers have argued in numerous cases that even such consent contravenes UAE law by imposing mandatory jail time for missing a testing appointment.
Article Four of the UAE Penal Code reads: "No criminal measure can be enforced except in accordance with the cases and the conditions indicated in the law. Criminal measures include the provisions related to penalties."
There is no law that mandates prison time for missing a drug testing appointment. Furthermore, only defendants convicted of state security charges can be put under surveillance after their release - and even then, the maximum period of observation is five years.
"For a rule to be legal, it should comply with the legal principles that are higher than it in the legal hierarchy and should be in line with the guidelines that were adopted before introducing it," Mr al Naqbi wrote in the study, conducted as part of his master's degree thesis. But many defendants are not aware of the legal issues surrounding the tests, Mr al Naqbi said, and do not appeal.
In a 2003 Supreme Court ruling, justices said that the drug testing scheme was not sanctioned by law, but that it was a marginal issue as long as there was evidence that the sample collected belonged to the defendant. The justices also said incorrect procedures for one set of evidence did not prevent other evidence in the case from convicting a suspect separately. Another ruling in 2009 confirmed that decision.
Mr al Naqbi said that although the courts found that the testing scheme's legality was of little consequence to a case's outcome, that did not lend it more credibility.
"It contradicts both the letter and the spirit of the law and the Constitution," Mr al Naqbi said. "This problem can be easily solved if they just introduce a law that sanctions such a practice. This should be approved by the Council of Ministers, and should not stay as internal regulations at the Ministry of Interior."
Internal regulations of an institution must be approved by the Council of Ministers to apply to the general public or other institutions.
