Rejection Judgment to Register Adala Center

 

In the Name of God, Most Gracious, Most Merciful

 

Kingdom of Saudi Arabia

Diwan Al-Mazalim

(083)

Administrative Court of Dammam

 

Administrative Panel III

Judgment No. 70/D/E/3/3/1434 Hijri

Case No. 4393/3/K/ year 1433 Hijri

Plaintiff: Sadek bin Yaseen bin Abdullah Al-Ramadan

Defendant: Ministry of Social Affairs

 

Praise be to Allah and peace and blessings be on that whom no prophet has come after him. Dear Sir:-

On Monday 17/7/1434 Hijri, the Administrative Court of Dammam held the administrative panel III meeting in Dammam constituting of:

 

Judge/ Saleh bin Abdullah al Muhaysin                     President

Judge/ Mua'ath bin Khaled al Turki                           Member

Judge/ Abdul-Muhsin bin Abdullah al Anzi               Member

 

In the presence of/ Abdullah bin Omar al Otaibi, Secretary of Panel, and after studying the administrative case shown above which has been circuit reassigned on 1/6/1433Hijri, the prosecutor's attorney/ Taha bin Muhammad Al-Haji, attended the hearing- under the proxy copy attached in the case file-, as well as the representative of the defendant/ Ibrahim bin Fahed Al-Zakari- under the script delegation attached in the case file-, and the judgment was given in the presence of both parties.

(FACTS)

In an action tried on the facts, the court must find the facts specially and state its conclusions, as the prosecutor's attorney has filed to the Administrative Court of Dammam with a lawsuit dating 1/6/1433 Hijri, summarized by the grievance from the defendant's decision of rejecting their request which is: to establish Adala Center for Human Rights, since the center does not conform with the applied list of organizations and charitable foundations. This was mentioned in the Ministry of Social Affairs (Eastern Province) administrative speech No. (3/527) dating 23/1/1433 Hijri, where the prosecutor's attorney has filed a lawsuit of grievance to the administrative party dating 6/2/1433H. The lawsuit was denied by speech No. (3/1722) dating 14/3/1433 Hijri, where the prosecutor's attorney has clarified that the reason for the Ministry of Social Affair's  rejection, as the Ministry has put it, is because the Center's objectives do not conform with the applied list of organizations and charitable foundations. Moreover, the prosecutor's attorney added that referring back to the objectives of the center transcribed in paragraph two under the Adala Center for Human Rights main system was its limitations to five main points that revolve around education, spreading human rights culture, educating people about their rights & duties as citizens, which corresponds with Article 2 from the list of organizations and charitable foundations filed by the Council of Ministers No. (107) dating 25/6/1410Hijri, and that states: "Charitable foundations aim to provide social services- financial or materialistic- educational, cultural or medical services, all related to serving humanity, with no aim to profit financially, as well as the association's general system must define its objectives, and it is prohibited for the charitable foundation to override its specified objectives or take part in any monetary speculations". The prosecutor's attorney has explained the reason behind the rejection decision defies reality for apparent breech of the previously mentioned article, where the objectives of the center are said to not coincide totally with the list of organizations and charitable foundations, and the main objective is servicing society through educating people in the field of rights by defining what's theirs and what their duties are according to the country's governance as well as the instructions and guidance of officials, and that under Article (26): "The state protects human rights... according to Islamic Sharia Law". In addition, it was mentioned that this transcript comes in accordance with the Kingdom's approval to publish the culture of human rights in (February 2009), to actualize the first objective of the Ninth Development Plan (1437H - 1435 Hijri) and that states: "Preservation of the Islamic teachings and values, promote national unity, comprehensive national security and guarantee human rights while achieving social stability and fixate the identity of the Kingdom of Saudi Arabia". Moreover, the prosecutor's attorney added that the objectives of the center addressed in the lawsuit conforms with the goals of the Ministry of Social Affairs social guidance that aims to educate society and spread awareness by offering consultations for personal, psychological, academic, moral issues that helps develop civic awareness in society. The prosecutor's attorney has also presented what the Ministry has shown on its website regarding its charitable foundation services program that encompasses 17 points, for example: academic, training, and rehabilitation programs, cultural programs, and programs of various help supports; establish social centers for youth, community centers in cooperation with volunteers from neighborhoods, initiate social researches and studies, raise prisoners awareness. The prosecutor's attorney has also added when the ministry classifies charitable foundations, those embrace awareness organizations, as well as, protection, family guidance and special needs organizations; therefore, the center's goals match precisely the objectives of such programs and their classification. Consequently, the sole reasoning the Ministry has based its decision upon is incorrect and contradicts with Article 2 from the list of organizations and charitable foundations. In addition, it contradicts with what the Ministry work stands for in reality. Hence, the decision taken was defective seeing that it violates the law, and this defect is one of the main grounds built upon in the lawsuit for cancelation, as the prosecutor's attorney has limited his request with respect to the defendant to offer his client a permit in order to establish a Human Rights Center, which will be demonstrated to the defendant's representative with a request for a copy of the center's main system in the position of plead, as well as a copy of the attachments. The reply was postponed, and in the following hearing, the defendant's representative filed a reply brief that contained the Ministry's rejection to the prosecutor's request for a speech dating 14/3/1433 Hijri as the prosecutor's listed speech was dated 30/5/1433 Hijri, meaning that 60 days have passed after the Ministry's rejection of grievance, mentioning that this concerns the matter technically. As for the objectivity of the issue, the defendant's representative mentioned that the prosecutor requested to establish a center and not a charitable foundation, consequently, basing the decision on the list of charitable foundation has no basis in reality.  He has also added in reply to the prosecutor's point that concerns having the state preserving human rights, saying the state have already established a Human Rights Committee, commissioned under a decision from the Council of Ministers No. (207) dating 8/8/1426 Hijri that is destined to take care of various human rights matters, as well as pertained with an independent legal personality, or governmental side, as Article 1 from the board's organization states: "In accordance with this organization, a board is established, entitled Human Rights Committee, that is directly related with the Prime Minister and aims to protect human rights and promote the United Nations Universal Declaration of Human Rights in all aspects, spread awareness, and take part in ensuring their implementation in the light of Islamic Sharia Law where the government is most competent in giving its opinion and advice in issues related to human rights. The defendant's representative has revealed that the Committee is most competent in this matter, and consequently, the prosecutor might sue any of whom is of a different nature. The defendant's representative has also disputed the prosecutor's attorney argument on basing the center on that of the Family Guidance centers, which is unfitting; the Family Guidance centers has special organization and has no relation with rest of the charitable foundations system. The representative has concluded his brief by requesting for a case reply technically as a primary request, and rejecting it by subject as a secondary request. And after the requests were shown to the prosecutor's attorney, the reply was postponed. In the following hearing, the prosecutor's attorney presented a reply brief that emphasized  the moral of calculating the defined duration of 60 days is the date of receiving the decision and studying it or being informed about it, and is does not correspond to the date of issuing the decision of signing it. Consequently, the attorney mentions that even if the Ministry's judge speech of the unjust decision was issued on 14/3/1433Hijri, his client has not received this piece of information and was not informed of it. Instead, his client has received a copy of the speech in an informal manner during a follow-up visit after a concern in having a delayed reply, and that dates to 6/4/1433 Hijri. Moreover, the prosecutor's attorney adds that the defendant must prove that his client has received the speech, as his client has litigated on 29/5/1433 Hijri, which is during the legal duration. As a result, the lawsuit is technically acceptable to have been filed on time, and this, as the prosecutor's attorney explains, is the technical aspect of the issue. As for the objective aspect, he mentioned the Ministry's representative has mentioned Article 1 in his brief, establishing a center and not a charitable foundation, where basing the decision on the list of charitable foundation has no basis in reality. In response to that, the persecutor's attorney mentioned in his reply to the previous Article mentioned that the Ministry was whom based its decision on the list of charitable foundations and not his client, which was one of the reasons for the rejection of for the objectives of the center not coinciding totally with the list of organizations and charitable foundation. The attorney adds that the decision if to be based on the mentioned list, making it unrealistic, as the Ministry's representative has mentioned, or the decision defies both reality and the system by considering the center's goals matching with what Article 2 states about the lists. In both cases, the decision is defective with a defect that necessitates cancelation, where if either the decision was based on the right list, for it has mistaken by rejecting the request, and that is because the goals of the center matches that of the list. And with this, the decisions request entails its cancelation, or it be that the source of the decision has mistaken his basis on the list, consequently, as the Ministry's representative has mentioning, the decision entails its cancelation since it has based its reasoning's on non-organized nor legal grounds. The persecutor's attorney has mentioning in his reply to the point if having the state has already established a Human Rights Committee, being the concerned governmental side in all issues related to human rights,  the Board of Human Rights has no  jurisdiction or experts in permitting and supervising the judicial issues in the country. This is specifically highlighted in Article 5 of the Board of Human Rights organization that pinpoints its expertise and duties without mentioning that the Board is responsible or eligible in recording, permitting, allowing judicial work or stopping them. The plaintiff attorney has also explained that he has conducted a phone interview with the Board notifying them that registering institutes for rights is outside their area of expertise. Adding, that the Ministry of Social Affairs has not based its rejection decision on that same reason, instead, the Ministry has mentioned that the center's goals do not conform with the list's, seeing that the goals sought by the center do not differ than the organizations and centers permitted and supervised by the Ministry in raising awareness, educating and helping. For example, the attorney mentions the National Charitable Foundation for Homecare, Saudi Charitable Foundation to Encourage Organ Donation (ETHAR), National Association of Retirees, Prince Salman Social Center, and Prince Sultan Liver Diseases Center. The prosecutor's attorney has concluded his memo in renewing his request of canceling the defendant's judgment in the position of plead, obliging it of registering the center and giving it a permit. Therefore, after demonstrating the following to the defendant's representative, the reply was postponed,  & in the following hearing, the defendant's attorney gave in a reply memo that encompassed the Ministry's fixation to its opinion in what has been exhibited previously in rejecting the lawsuit technically since the plaintiff has acknowledged the rejection of grievance on time, as the system allows the plaintiff power of attorney in case he was not able to attend or follow-up with his duties and summoning. The Ministry's representative has also added that the prosecutor's attorney has not given in legal proxies in the presence of the Panel for the rest of the members, knowing that charitable foundations are not allowed to be established unless a request was given in from 20 persons or more, of Saudi nationalities. As it added that there was a reply in light of the plead in the previous brief and that was concerned with the center's goals and does not relate to the goals of charitable organizations with the confession of the plaintiff, where it included his previous brief in which he wishes to license his center as a rights institute, knowing that all what deals with the profession of law and lawyers refers to the Ministry of Justice, and thus it is clear that the mentioned is outside the list of organizations and charitable institutes, and the representative of the defendant also mentioned that prosecutor's pointing out some examples of organizations would be answered by that they are centers for non-profit charitable organizations, and the proposed goals at the plaintiff's center are not to grant charity services but it is purely rights, and aims to give rights services, in addition that the reference for human rights in the Kingdom is the Committee of Human Rights. And a copy of the heir and minister of Interior's letter number (21226) on the daye 26/3/1433 H. was accompanied and it includes the disapproval to form the plaintiff's center, ending his reply brief by confirming what was mentioned before by retaking the plead in form as a basic demand, and rejecting it by content as an additional request. And by displaying that to the prosecutor, he decided to suffice with what he has presented before and holding on to his demand, as the defendant's representative decided to suffice with what was presented before and holding on to his demand. During the next session, the panel asked from the defendant's representative to supply it with what proves that the plaintiff has received the decision's issuing, as well as asked him for an explanatory release for incompatibility of goals on the list of organizations and charitable institutes and he was ready for so. And at the next session, the defendant's representative presented a reply brief that included that letter of the plaintiff, raised to the servant of the Two Holy Mosques and dated on 9/1/1433 H. it included the statement of the plaintiff that founding such organizations is contained by the list of organizations and civil institutes of public interest and that is being studied until now by the ministerial committee for administrative organization, and there is a national committee for lawyers and its system's project was raised to a higher stance via the Ministry of Justice in letter (22272/20) on 20/4/1431 H. and it is concerned with the affairs of lawyers and the organizer of their works and it is studied now by a committee of experts in the council of ministers. And the side's representative also added that the higher command number (7/998/m) on 18/10/1420 H. has included the demand to coordinate with what concerns the requests of founding charitable organizations with the emirates of the regions or the ministry of interior before foundation; and that to manage charity work in the regions, and the side's representative added that he has already excused himself from several foundation requests for such rights organizations for incompatibility with the list of organizations and charitable institutes and a copy of the related letters were accompanied by that. At the next session, the pleading attorney presented a reply brief that included the respondent's representative mentioning the center's letter, raised to the servant of The Two Holy Mosques, contained a statement that the foundation of such organizations is considered amongst the system of organizations and civil institutes that is studied until now at the ministerial committee, thus how does the respondent's representative response is based on a system that was not yet issued, and when returning to the phrase, it come clear that the center hopes the issuing of the mentioned system's project without it declaring that it wants to work in light of the list of organizations and charity institutions, and what the respondent's representative have mentioned with the need to cooperate with the emirates of the regions and Ministry of Interior with what deals with the foundation proposals for charity institutes, and based on the high decision number (7/998/m) on 18/10/1420 H., and there was no copy of it; in addition to that, the center has already sent a letter the emirate of the Eastern province with a message sent by express mail on 14/1/1433 H., and by that it reached the servant of The Two Holy Mosques, his heir, minister of Interior, committee of Human Rights, and the National Organization of Human Rights; and communicating with all these sides is still ongoing, and what the representative of the center has previously mentioned that the Ministry of Social Affairs has excused itself from many foundation requests such as these organization, hence their conviction with the Ministry's decision and not rejecting it goes back on them, and since the center complies with all conditions, thus there is no reason for rejection. In the second session, the representative of the center presented a reply brief that included confirmation to what was mentioned before of replies, adding that the reason of the Ministry's rejection for such request is that it cannot involve the Ministry's scope of work in which it can issue a license for it, with that pointed out to the prosecutor whom sufficed by what he presented before and holding on to his request. The respondent's representative also decided sufficing with what he presented and holding on to his request and for that the session was ended, then this judgment was issued after discussion and studying.

 

(The Reasons)

Based on the facts above the release, and since the plaintiff's representative aims from his claim to cancel the decision of defendant number (3/527) on 23/1/1433 H., which includes rejection of his prosecutor's request of founding "Adala Center for Human Rights", thus the Administrative Tribunal specializes jurisdictionally in looking into such cases in accordance to article (13/b) of the Mathalem Diwan system issued from the royal article number (m/78) on 19/9/1438 H. The panel also specializes it consideration, qualitatively and spatially, in accordance to the decision of his excellence president of the Diwan of organizing panels and their terms of reference. And since the plaintiff has been informed with the decision on 6/4/1433 H., and his prosecutor has rounded up his plead to the tribunal on 1/6/1433 H., thus among the 60 days which are placed in the 3rd article of the pleading and procedures in front of Mathalem Diwan rules. For that, the plead is approved by form; and about the subject: the segment of conflict is limited to how much the respondent's side decision is valid, which includes the rejection of the proposal of the plaintiff to found "Adala Center for Human Rights", where it is a stable fact that the administration of the administrative judiciary has the amount of freedom of act when it comes to practicing its profession if it was left to it to either take an estimated decision, or not, choose the time on what it is appropriate to do, or the proper reason for it, that is the estimation authority of the administration. And for that, the defendant side has the authority in approving or rejecting licensing, and checking the decision of appeal, since it is a stable fact at administrative judiciary that the administrative decision should based on a reason of issuing, and the reason is a financial circumstance which precedes the decision and leads for it. If that was not the reason before taking the decision or if the reason existed yet the formal adaptation of the reason did not comply with the system, then the decision becomes invalid due to the loss of the reason of cancellation, where the only stable fact of the decision instead of the appeal is the reason why the plaintiff rejected the appeal is the incompatibility of his center's goals with the list of organizations and charity institutes issued by the decision of council of Ministers number (107) on 25/6/1410 H. And that's because it contradicts with what the second amendment of the list of organizations and charity institutes stated: "the charity organization aims to give social services financially or materialistically; and educational, cultural, or health services which does relates to humanitarian services without having profitable goals, and the basic system of the organization identifies its goals and prohibits the organization to trespass its specified goals or go through monetary speculations". And since it has been proved that the center in position of a rights center and not a charity organization, as it is also proved that as mentioned in the basic system of the center in the first paragraph of the definition that it is a civil organization that aims to support and spread the culture of human rights in the Kingdom of Saudi Arabia, and also it contradicts with what the first article of the list of organizations and charity institutes where it stated that "it is prohibited to license an organization if its basic system contains provisions that contradict with this list or other systems or the general law or incompatible with societal ethics" , and looking at the goals of the center in plaintiff position we see it has stated the following: 1- Striving to strengthening and spread the culture of human rights and supporting activists and defenders working in the field of rights and coordinate with their efforts. 2- Making the citizens recognize their rights and duties and the importance of independent civil society institutes and insuring the concept of the authority of the law in developing the society, and motivating and supporting them in establishing these institutes and actively participating in them. 3- Defining cases of human rights at rights institutes. 4- Participation in coordinating and evolving the efforts of individuals and groups that adopt defending human rights. 5- Working on building and evolving a basic platform for rights work, and participating in building a reservoir of experience and the necessary personnel. And by looking at the goals of the Human Rights committee issued by royal decision number (207) on 8/8/1426 H., we find that it stated the following: the committee aims to preserve human rights and strengthen it in accordance to international human rights standards in all fields, and spread awareness of it and participating in ensuring its practice in light of the rules of the Islamic dogma (Shari'a). And the committee is an independent governmental side specialized in giving opinion and consultancy with what deals in human rights issues. The center in position of plaintiff's goals overlaps with the goals of the human rights committee where all aims on awareness and educating human rights, and that creates conflict between both sides, which is considered an honest violation for the mentioned article 4, as well as it conflicts with the goals of the national organization for human rights issued by royal decision number (24/2) on 18/1/1425 H., where the organization's goals state the following: 1- Working on preserving human rights in accordance to governing system that is sourced from The Qur'an and the Sunnah, and in accordance to the adopted systems, and what was mentioned in declarations and specialized charters in human rights issued from the Arab League and the Organization of Islamic Conference, and the United Nations and its agencies, special committees, and what does not violate the Islamic Shari'a. 2- Cooperation with international organizations working in this field. 3- Stand against oppression, abuse, aggression, torture, and intolerance. And by looking to the committee of human rights, they do not undergo the supervision of the defendant with the existence of similarities in some of the goals of the plaintiff's center and the comparison demands not to place this center under the supervision of the defendant, as well as by looking at the center's system where its goals and principles are evident, and by standing on the principles that system of Adala center derives and reaches its goals with are as follows: 1- The international law for human rights and the international humanitarian law and what relates to it of declarations, principles, standards, recommendations, guidance, and explanations. 2- Regional charters. 3- Saudi local laws and legislations that are related to human rights, and since it is evidently known that many placed ordinances do not comply with the Islamic Shari'a, and since the Kingdom of Saudi Arabia is an Islamic country and its constitution is book of Allah and the Sunnah of His Prophet - peace be upon him - and the systems derive their rules from the it as the seventh article of the main system of governance where it stated: "the system of the Kingdom of Saudi Arabia derives its authority from the book of almighty Allah and Sunnah of His Prophet - Peace be upon him - and They are the governors of this system and all systems of the state" and thus the reliability of these ordinances without limitation as it is evident in the basic system of the center has a violation for the seventh article of the main system of governance mentioned before, and the first article of the list of organizations and charity institutes stated that: "it is prohibited to license an organization if it has in its basic system rules that contradict with this list or other systems or violates the general system or contradicts with public societal ethics". Thus, the decision of appeal complies with the valid system, and it is based on valid reason, and does not receive what the persecutor mentioned that there were centers licensed by the defendant and their goals don't differ a lot from the goals of his client from spreading awareness, educating, and helping as the Prince Salman's Social Center, Prince Sultan's Center for Kidney Ailments, National Organization for Retirees, The Saudi Charity Organization to Support Organ Donor (Ethar), and The National Charity Institution for Household Care. It is looking at these organizations and centers that we find that they are private charitable institutes that cares with a specific group unlike the plaintiff's center, where it is a public rights institute that contradicts with other systems, because of all that, the judiciary panel concludes by rejecting the plead. It is for those reasons and after studying and discussion, the panel stated: by the rejection of plead number (4393/3/Q) year 1433 H. established from / Sadek bin Yaseen bin Abdullah Al-Ramadan against /Ministry of Social Affairs; for what is cleared in the reasons, and Allah is the conciliator and peace be upon our prophet Mohammad and his family and all his companions.

 

Head of Judges Department              

Saleh bin Abdullah al Muhaysin

 

Judge

Mu'ath bin Khaled al Turki

 

Judge

Abdul-Muhsen bin Abdullah al Anzi

 

Secretary of Department

Abdullah bin Omar al Otaibi

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