In Brief:
- Each branch of the Federal Government and local Government carries out its functions through the issuance of decisions, legally referred to as administrative decisions.
- Administrative decisions often have an impact on the rights and obligations of the juridical and natural persons to whom such decision applies. These include: government employees, taxpayers, companies and sole traders in respect of a wide range of activities.
- The legal system in the UAE provides citizens and residents with the right to challenge the legality of an administrative decision and seek its cancellation by way of a claim before the competent court.
- The aim of this article is to briefly address the complexity related to the submission and proof of such a claim.
The Right to Challenge an Administrative Decision is a Constitutional Right
Article 41 of the UAE Constitution provides each person, including foreign nationals, an inalienable right to approach the competent authorities and the courts to redress grievances and enforce legal rights. Article 41 confirms the right of each person to file a complaint to the competent authorities, including the judicial authorities, for any prejudice to rights and liberties provided for in the Constitution. This right is complemented by the Civil Procedures Law No 11 of 1992, as amended and Federal Law No. 10 of 1992 relating to Evidence in Civil and Business Transactions (the “Evidence Law”). Collectively, the UAE Constitution, the Civil Procedures Law and the Evidence Law form a robust and comprehensive body of law that ensures that each person residing, working or carrying business in or with the UAE is provided the right to approach, obtain redress and enforce his or her legal rights through a competent court of law.
The Federal Supreme Court has held in several cases that the right to approach a court, including the right to file criminal complaints, is regarded as a matter of public right which is fully assured provided that the person exercising that right is not exercising it against the defendant excessively, maliciously or in bad faith.
This constitutional right also applies to challenging the legality of administrative decisions issued by any executive of the Federal Government or of any of the Emirates forming the UAE. This right includes the right to challenge the validity of an administrative decision/order and the right to seek compensation for a malafide administrative decision: “it is established in jurisprudence and judiciary [on administrative Law] that no administrative decision or action is immune from judiciary review since the right to litigate is one of the public rights that the Constitution is entrusted with its protection and incapable of being forfeited, then control over the administrative actions aims to verify whether the department adhered to the conditions prescribed by the law in issuing such decisions or taking actions”.
The Court Competent to Judicially Review the Validity of an Administrative Decision
Article 102 of the Constitution provides that the Federation shall have one or more federal courts of first instance seated in the capital of the Federation or in capitals of some of the Emirates. These courts shall have sole and exclusive jurisdiction to adjudicate on certain matters, including:
the civil, commercial and administrative [disputes] between the Federation and individuals, whether the Federation is plaintiff or defendant.
In implementation of Article 102 of the Constitution, Article 25 of Law No 11 of 1992 concerning Civil Procedures, states as follows:
“The courts of first instance shall be competent to consider civil, commercial, administrative… disputes with the exception of dispute where the Federation is a party, as the Federal Courts shall be competent with the consideration thereof.”
The Federal Supreme Court has consistently ruled that exclusivity under Article (102) of the Constitution is a matter of Order Publique and therefore always applies where the Federal Government of the UAE is party to a dispute.
This is the current law and practice: all claims raised by a private person, be they natural or legal, against the Federal Government or any of its organs are to be exclusively submitted to, and adjudicated by, the Federal Court of First Instance. Judgements on the merits delivered by this Court are appealable before the Federal Court of Appeal. Judgements issued by the latter may, if challenged on matters of law, be appealed before the Federal Supreme Court. All three Courts are seated in Abu Dhabi, the Capital of the Federation.
When an Administrative Decision Becomes Invalid and Subject to Challenge?
The Courts in the UAE hold that an administrative decision may be held invalid on one of the following five grounds:
- the authority issuing the decision is not authorised or competent under the law to do so;
- the authority issuing the decision did not follow the formalities prescribed by law for issuing the decision;
- the decision was not based on reasons which justified its promulgation;
- the legal or factual effect (resulting from the decision) was not authorised under the law; or
- the decision was not intended to achieve a public interest. For example; the administrative authority used its powers and authorities to achieve a purpose that does not serve a public interest.
Time Bar for Challenging an Administrative Decision
In November 2014, the UAE Civil Procedures Law was partially amended to, inter alia, introduce a time bar on the right to appeal against an administrative decision. Under this amendment, Article 84 (Bis) was promulgated to read as follows:
- “The case on cancellation of administrative decisions shall not be accepted after the lapse of sixty (60) days as of the date of publication of the appealed administrative decision or notification of the concerned party thereof or proven certain knowledge thereof.
- The validity of this time limit shall be interrupted by grievance to the administrative body that issued the decision or the body governing it. The grievance shall be decided upon within 60 days as of the submission thereof. In case of rejection, the decision shall be grounded. The lapse of 60 days as of the submission of the grievance without response on part of the competent bodies shall be deemed as rejection. The date for initiation of a case shall be calculated as of the date of explicit or implicit rejection, as the case may be.”
It is of particular interest to note that, under the above provision, an aggrieved person, instead of immediately submitting an appeal to the Court seeking repeal of the administrative decision, may first appeal against such decision either before the government entity that issued it or before its superior authority. If the competent entity does not respond within 60 days, then this is considered a constructive/ implicit refusal of the appeal. The 60-day time bar for appealing before the competent court shall commence as of the date of such implicit refusal.
Difficulties in Challenging an Administrative Decision
A successful claim to challenge an administrative decision requires deep knowledge of the substantive rules governing the sanctity of administrative decisions. These rules – unlike the provisions of the Civil Code on, for example, breach of contracts – are unwritten: they have been exclusively developed and interpreted by case law (principles laid down by courts) and not by way of legislative provisions.
Another difficulty in respect of such a challenge is that case law recognises that the administrator must always enjoy the discretionary powers to administer its affairs and that such administration is, prima facie, effected for the benefit of the public at large. Only an experienced administrative law litigator will be able to assess a specific situation with the objective of demonstrating to the court that the administrative decision which is challenged is, under the principles laid down by courts, invalid due to the presence of one or more of the five grounds set out above.
Conclusion
Administrative decisions play a major role in shaping the social, economic and other fundamental rights of an individual or corporate body in the UAE. The submission of a claim before the competent UAE Court challenging the legality of an administrative decision is not similar to a civil/commercial claim for an alleged breach of a contract. The basis of the challenge is limited to demonstrating the existence of an illegal act or omission by a branch of government upon the issuance of an administrative decision. This is not easy to achieve and requires particular expertise in administrative law. This at least partly explains why administrative decisions are not often challenged before the UAE courts of competent jurisdiction.