The report by Irish Times Legal Affairs Correspondent Mary Carolan that former chief justice Frank Clarke and former president of the High Court Peter Kelly had been “sworn in” as judges of the Dubai International Financial Centre (DIFC) court of appeal (the highest DIFC court) in a virtual swearing-in ceremony on Tuesday before Sheikh Mohammed bin Rashid Al Maktoum, vice-president and prime minister of the UAE, ruler of Dubai and president of the DIFC left me, frankly, bewildered if not flabbergasted.
The appointment of Frank Clarke and Peter Kelly (along with two other retired senior judges, US judge William Young and judge Michael Black from Australia) represents a big coup for Al Maktoum and no doubt enhances the reputation of the DIFC, whose courts are a common law judiciary governing civil and commercial disputes in Dubai and internationally.
But in my view, it damages the excellent reputation of the two former Irish judges and thereby, most unfortunately, risks undermining the regard that our senior judiciary enjoys and deserves.
Amnesty International and Human Rights Watch consistently document the violation of fundamental human rights by the UAE government of which the former judges “appointor” is prime minister. That the two well-known and widely respected former judges — both outspoken while on the bench in support of access to justice and the “rule of law” (in the case of the former chief justice) and critical of Irish government inaction in child protection, among other issues, (in the case of the former president of the High Court) — would lend their reputations to the UAE and Al Maktoum by becoming DIFC judges beggars belief.
The UAE does not have democratically elected institutions and citizens do not have the right to change their government or to form political parties. Only 11 per cent of the estimated 10.2 million people who live there are Emirati citizens and the 89 per cent of non-citizens benefit from little legal protection. Activists and academics who criticise the regime are detained and imprisoned, and their families are harassed by the state security apparatus. The 2017 arbitrary detention and 2018 conviction of human rights defender Ahmad Mansoor, to 10 years’ imprisonment, following an unfair trial; as well as the unfairly passed 10-year sentence handed down to lawyer and rights defender Dr Mohammad al-Roken, in 2013 — whom the authorities continue to hold despite the conclusion of his sentence — are just two examples. Empty government assertions in relation to just these two cases exemplify the authorities’ application of “the rule of law”.
Emirati laws discriminate against women, migrants and LGBT individuals. Flogging and stoning, if rare, remain legal forms of judicial punishment. The UAE has retained and uses the death penalty. The government restricts freedom of speech and freedom of the press, and the local media are censored to avoid criticising the government, government officials or royal families. As a result, the UAE routinely ranks near the bottom of international measures for human rights and press freedom.
Despite being a member of the UN Human Rights Council, the UAE has not signed most international human-rights and labour-rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
The most obvious question for the two former judges is, “what were you thinking?” Did they believe that the DIFC as a Financial Centre operating within Dubai — like our International Financial Services Centre — makes it and by implication anyone participating in its administration, executive or judicial, immune from scrutiny and criticism? Or immune from association in the public mind, however remote, with human rights abuses carried out and directed by their appointor and ultimate employer?
Had they read the recent judgments of their UK colleague Sir Andrew McFarlane in the much-publicised case involving Al Maktoum and his former sixth wife, Princess Haya, who fled to England in 2019 with their two young children?
Did they know that Al Maktoum was found by McFarlane to have authorised the use of the notorious NSO “Pegasus” surveillance software to spy on his ex-wife during the ongoing conduct of the legal proceedings?
That he found that Al Maktoum had separately arranged for the kidnapping and forcible return of two of his daughters (from other marriages) — one snatched from the streets of Cambridge in the UK?
Or that the Pegasus surveillance extended to two of Princess Haya’s solicitors? One of whom, Baroness Fiona Shackleton, learned of the “hacking” following a phone “tip off” by NSO “ethics” counsel (and honorary King’s Inns bencher) Cheri Blair, wife of the former British prime minister Tony Blair?
Does it not matter that apostasy in UAE is punishable by death?
Are we meant to feel reassured that the judges will apply the common law in their work and that the court of appeal of the DIFC is not expected to apply sharia law which applies in all other UAE courts?
At a time when leading golfers have been willing to “call out” the “sports washing” actions of those golfers who have joined the controversial Saudi Arabia-backed LIV golf tour, are we now witnessing a new phenomenon of judge washing by a human rights abusing regime as a means of providing cover and respectability for their specialist commercial courts?
I applauded the two judges when they and their colleagues showed public and vocal support for Polish judges whose independence was, and still is, threatened by the ruling Polish government. But these appointments leave me for one feeling disappointed and dismayed despite their great prior service and ongoing involvement with other good causes in Ireland.
Perhaps, in conclusion, they might have listened to (and learned from) our former colleague at the Bar, Mary Robinson, who said she made her “biggest mistake” by believing that Al Maktoum’s daughter, Princess Latifa, was “fine” following her dramatic kidnapping from a yacht off the coast of India having fled Dubai, when in fact she now believes she is being held in Dubai against her will.
- Bill Shipsey is a former Barrister at the Irish Bar