In the Kingdom of Saudi Arabia (“KSA”), the absence of a clearly defined and effective mechanism which ensures the protection and fulfillment of rights in administrative disputes has chased challenges. There have been a significant number of cases in which the enforcement of final administrative judgments has been delayed or abandoned. This situation has adversely affected the value and credibility of judgments issued by administrative courts.
Under the current framework, if an administrative body failed to enforce a judgment that has been issued against it, the enforcement creditor should submit an enforcement request to the emirate of the region in which enforcement is sought, who will first notify the administrative body of its obligation to enforce the judgment, and then, in case of defiance by the administrative body, instruct the National Anti-corruption Commission (Nazaha) to take the necessary measures. In some cases, the Emirate can also write to the Ministry of Finance to register the debt in their record and deduct the amount from the Ministry’s future budget. Alas, this method has proven ineffective in promoting administrative bodies’ compliance with the Courts’ rulings.
In response to this historical dilemma, the Council of Ministers have recently issued resolution No. M/15, dated 27/1/1443H, approving the Law of Enforcement before the Board of Grievances (the “Law”). The decision manifests the Saudi Government’s earnest intention to empower the enforcement of final judgments and to ensure justice for both administrative bodies and the public. The Law aims to ensure the judicial security of rights, which will, in turn, support the prosperity of the investment environment and the development of the economic sector in the Kingdom.
The Law marks a positive step forward. It should provide a clear mechanism for the enforcement of judgments against administrative bodies and set forth deterrent punishments and compulsory measures against violators.
Key Highlights of the Law:
Article 3 of the Law gives the Administrative Judicial Council (the “Council”) the authority to establish one or more administrative enforcement courts that will specialize in executing enforcement documents and hearing claims concerning enforcement. The Article also authorizes the Council to establish an administrative circuit in regions and provinces that do not constitute an administrative court, which will carry out the same duties as the courts.
The Law has omitted the requirement of appending judgments issued by administrative courts with the executive form, which is, in contrast, a strict requirement for judgments of non-administrative nature, as provided for in Article 34 of the Enforcement Law, issued by Royal Decree No. M/53, dated 13/8/1433H.
Article 5 of the Law draws a crucial distinction, in terms of appealability, between orders and judgments issued by administrative courts. The Article emphasizes that while the former is not subject to appeal, the latter could be appealed to the specialized administrative appellate courts.
Unprecedently, the Law has followed in the direction of the French judiciary by introducing the concept of astreinte, which is a financial periodic penalty imposed in case of delay in compliance or lack of compliance. The application of the concept of astreinte is manifested in Article 20 of the Law which imposes a penalty of SAR 10,000 upon administrative bodies for each day of delay of enforcement of judgments (after the lapse of the grace period, which is 5 days for urgent judgments and 30 days for non-urgent judgments). Evidently, the said penalty has been used by the legislator as a tool to coerce administrative bodies to enforce judgments.
Article 25 of the Law emphasizes that: “anyone who has an interest in bringing the enforcement claim, whether from the parties to the enforcement or third parties, can bring a claim to enforce the enforcement document.” Accordingly, unlike enforcement claims of non-administrative judgments where the claimant has to have standing to bring a claim of enforcement, any person with an interest can bring an enforcement claim of an administrative judgment regardless of whether or not they have a standing in bringing the claim.
Article 30 of the Law imposes a penalty of imprisonment for a period not exceeding seven years and a fine not exceeding SAR 700,000 or one of these penalties on public employees who intentionally use their authority to prevent the execution of enforcement documents.
Article 30 also imposes a penalty of imprisonment for a period not exceeding five years and a fine not exceeding SAR 500,000 or any of these penalties on public employees who refuse to execute enforcement documents, with the intention of obstructing its enforcement.
It is worth highlighting that although the Article 30 penalties mentioned above apply to all public employees; if the criminal claim was brought against a minister or an official with ministerial rank, the procedure provided for under the Law of Trial of Ministers, issued by Royal Decree No. 88, dated 22/9/1380H, shall apply.
The Law is expected to bring a long-awaited change in the enforcement of judgments against administrative bodies by improving and expediting the enforcement process, which will ensure the credibility of the Judgments issued by the administrative court.