Like ageing footballers who eke a few more years out of their tired legs by making a late-career move to the more leisurely leagues of the Persian Gulf, retired Irish judges are now swapping the Four Courts for the desert sun. Former chief justice Frank Clarke and former High Court president Peter Kelly will work part-time and for the most part remotely on taking up their new roles with the Dubai International Financial Centre (DIFC) courts. But their appointments, formalised at a virtual ceremony this week before prime minister Sheikh Mohammed bin Rashid al Maktoum, are a coup for the authoritarian monarchy that runs the country.
While sharia is the official system of law in the United Arab Emirates, the DIFC courts are an island of common law inside the Islamic monarchy. These financial courts, which operate in English, reflect the regime’s desire to develop Dubai’s lucrative legal industry and to encourage firms to do business there.
As chief justice, Clarke was a vocal defender of the rule of law, and under his leadership the judiciary dispatched a representative to join a protest march against democratic backsliding in Poland. Kelly has a record of strong, compassionate judgments that spoke up for the voiceless, including many children, who were failed by the State. They would no doubt reject that their membership of the DIFC courts implies endorsement of the regime, but their decision to join the 15-man (and one woman) court raises important questions.
Regardless of the veneer of respectability that the DIFC seeks to apply to it, the UAE is run by a brutal regime that denies basic civil rights to those who live there. Citizens are arbitrarily detained. Political parties are banned and opposition activists are aggressively persecuted. Freedom of assembly is restricted, media are severely constrained and courts pass death sentences. “I’m not sure how relevant the human rights side of things is,” was the revealing observation of one Irish solicitor quoted anonymously in this newspaper. It’s the sort of wrong-headed, dubious reasoning that any judge should be able to see through.