Terminating The Public Employee's Service Due to Lack of Health Fitness and Proven Drugs Abuse or Addiction in The Light of The Criminal and Civil Service Laws in Egypt and Saudi Arabia

Abstract

The research dealt with the issue of terminating the public employee's service due to lack of health fitness and proven drugs abuse or addiction in the light of the criminal laws and the civil service laws and regulations in the Egyptian and Saudi laws as well as a presentation of some of the modern judicial applications issued by the administrative judiciary in the two legal systems. The findings of the study show that both the Egyptian and Saudi legal systems have criminalized drugs abuse. Both have established dedicated addiction treatment institutions with specific controls following anti-drug laws. The Egyptian and Saudi laws necessitate the availability of the health fitness of the public employee as a condition of appointment and a condition for continuing in the public post. The research proposed some recommendations, including the recommendation of the Egyptian law to explicitly consider the humanitarian aspects when convicting the public employee of drug abuse or addiction. The Saudi law should amend civil service regulations to deliberately determine the termination of the public employee's service due to drug addiction or abuse to preserve public capitals and public facilities, or any other losses.

Headnote

Abstract

The research dealt with the issue of terminating the public employee's service due to lack of health fitness and proven drugs abuse or addiction in the light of the criminal laws and the civil service laws and regulations in the Egyptian and Saudi laws as well as a presentation of some of the modern judicial applications issued by the administrative judiciary in the two legal systems. The findings of the study show that both the Egyptian and Saudi legal systems have criminalized drugs abuse. Both have established dedicated addiction treatment institutions with specific controls following anti-drug laws. The Egyptian and Saudi laws necessitate the availability of the health fitness of the public employee as a condition of appointment and a condition for continuing in the public post. The research proposed some recommendations, including the recommendation of the Egyptian law to explicitly consider the humanitarian aspects when convicting the public employee of drug abuse or addiction. The Saudi law should amend civil service regulations to deliberately determine the termination of the public employee's service due to drug addiction or abuse to preserve public capitals and public facilities, or any other losses.

Keywords: Drug abuse and addiction, Egyptian law, health fitness, public employee, Saudi law.

Introduction

Studies have claimed that appointment on a public post is an important subject of study (Haikal, 2012; Jumaa, 2017), while the requirement of health fitness is an important prerequisite for an appointment to the public post. Being a prerequisite means that it is an essential condition to be fulfilled for the continuation of a job. In the event of loss of the required health fitness, the application for a public is rejected, and if the appointment has been made, the employee is terminated (Al-Kapany, 1982; Shatnawi, 2012). The termination of a public employee's service means to dismiss him permanently from the public post. One of the reasons for the lack of health fitness of the public employee maybe his/ her addiction to drugs or drug abuse. His post may also be terminated because of his inability to perform his duties and tasks. Nonperformance can have a negative effect on the protection of public funds and state facilities and would result in the disruption of the interests of other individuals.

Health fitness is defined as 'a person's physical ability associated with health and main physical functions, which qualify him to carry out his/ her daily and functional life.' Drugs can be defined as 'a collection of natural, manufactured or compound substances that cause addiction and poisoning of the nervous system and whose trade, cultivation or manufacturing are prohibited except for the purposes stipulated by the law and are only used by those who are authorized' (Al-Mohandi, 2013).

The Egyptian and Saudi laws have included drugs exclusively within the circle of criminalization and included them in articles attached to laws of drug control and regulations have been made to criminalize any unauthorized handling of any of these substances. Both the Egyptian and Saudi laws have sufficient legal texts to hold the individuals accountable, in general, and the public employee, in particular, for their drug abuse and addiction under certain control. Specifically, the most important reason for choosing the subject of the current research was exclusively the problem of the appointment and continuity of a public employee on his/ her post after s/he has been proven guilty of drug abuse or addiction and the way the Egyptian and Saudi laws dealt with it.

This study aimed at presenting the current situation on this subj ect in the Egyptian and the Saudi legal system. In addition to presenting the recent significant legal amendments in both laws and the inclusion of the termination of a public employee's service as a new reason, this study also discusses the differences and similarities between the Egyptian and Saudi laws. Both descriptive and analytical approaches were used to study the underlying judicial applications in both laws. Several studies in the domain of administrative law, especially those related to a public post in the Egyptian and Saudi laws, have very generally and briefly explained the reasons for the termination of a public employee's service.

Most of these failed to address the subject in detail except Al-Suwait (2019) who elaborated this subject. The present study is similar to Al-Suwait's study in terms of dealing with the provisions governing termination of the public employee's service when his/ her drug addiction is proven in Egyptian law. However, there are several differences between both these studies:

1. Al-Suwait chose the Kuwaiti law for comparison, however, the current study selected Saudi law for this purpose.

2. The current research presented and analyzed a very recent and latest advisory opinion of the Egyptian administrative judiciary concerning the termination of a public employee's service due to drug addiction, which was not presented in AlSuwait's study.

3. The current research referred to the latest Egyptian law issued in 2021 on the termination of the public employee's service due not only due to his addiction but also due to the drug abuse while the other research was published before this law was issued.

This study is divided into two parts. The first part reviewed the termination of a public employee's service due to lack of health fitness as well as due to drug abuse and drug addiction in the Egyptian law. The second part reviewed the termination of a public employee's service due to lack of health fitness as well as due to drug abuse and drug addiction in Saudi law.

PART ONE

The Termination of the Public Employee's Service in The Egyptian Law Due to Lack of Health Fitness When Drug Abuse and Addiction are Proven

Before we present the provisions of civil service regulations and other regulations which are related to the subject of our research, we will present the provisions of the Egyptian Criminal Law that criminalizes drug abuse in general and personal use in particular, whether the abuser is a public employee or not1. The Anti-Drug Law and the regulation on its use and trading in article 37 say, 'The penalty should be an imprisonment, with temporary hard labor and a fine of not less than 10,000 EP and not more than 10,000 EP for anyone who has acquired, possessed, bought, produced or extracted a narcotic substance or planted a plant included in Table (5) of the Law'1.

This law particularly dealt with personal abuse in illegally unauthorized circumstances. The court can sentence conviction and execute it in private imprisonment institutions established for convicts of such crimes or in places that are allocated in punitive institutions. However, prior to executing the sentence of imprisonment for the proven drugs addicts, the court may send such convicts to a sanatorium established for this purpose, by the decision of the Minister of Justice in agreement with the ministers of Health, Interior and Social Affairs for medical, psychological and social treatment. The length of such a penalty should not be less than six months, and not more than three years.

The release of the inmate after recovery shall be through a decision of the authorized committee supervising the inmates in the sanatorium. However, if the maximum period prescribed for the inmate expires before he is cured or if he refuses to follow the treatment schedule imposed on him or if he commits any crime stipulated in the law during his stay or if his stay is found useless, the committee can report the issue to the court through the Public Prosecutor's Office. The committee can request a stay of the writ unless the pecuniary penalty is satisfied. If this happens, the inmate may be allowed to stay in the sanatorium until he is completely cured and discharged only to complete the rest of the duration of the penalty in the prison. This will however be not applicable if the convict commits a crime, after having been penalized, or during his stay in the sanatorium. In this scenario, the verdict issued as per the prescribed article of the Law would be applicable, unless the court considers the need for the application of Article 17 of the Penal Law.

Concerning the criminal lawsuit against those who are proven addicts or drug abusers, Article 37 stipulates that 'criminal lawsuit is not filed against those who apply to the referred committee in the previous article on their own for treatment of drug abusers.' In this case, the drug addict remains under treatment in the sanatorium or any other the treatment institution, established for this purpose as stipulated in Article 37 of the law and by the decision of the Minister of Social Affairs in agreement with the Minister of Health, to receive medical, psychological and social treatment until the committee decides otherwise. If the inmate leaves the sanatorium or stops visiting the indicated treatment institutions before the decision of the referred committee, he is obliged to pay the expenses of the treatment that may be collected from him through administrative detention. Article 45 of this law is not applicable in his case which states that those who have been detained due to narcotic substance acquisition would not have the authority to be admitted in the sanatorium or any treatment institutions.

Article 37 also stipulates that a 'criminal lawsuit is not filed against those who are proven addicted to or using narcotic substances. However, if their spouse, or any of their relatives, ascendants or descendants, requests the committee, the inmate may be allowed the treatment in a sanatorium or any other treatment institutions as stipulated in Article 37 (A). The committee takes this decision after examining the person and hearing the statements of the relevant persons, before requesting the Public Prosecutor's Office to investigate this request and providing it with a memorandum of opinion. After being admitted for treatment, the inmate would agree to be treated in a sanatorium or visit the treatment institutions to comply with the decision of the committee. If he rejects or disagrees, the committee will take the matter to the Criminal Court through the Public Prosecutor's (PP) Office. A counselling will be conducted at the PP's residence to either forcibly admit him in a sanatorium or urge him to attend any of the treatment institutions. If necessary, before deciding on the application, the committee may place the person for treatment under observation for a period of not more than two weeks which he may challenge by applying to the Public Prosecutor's Office or the director of the institution where he is admitted. Within three days of his application, the Public Prosecutor's Office must send the application to the referred court to decide whatever is suitable. In any case, the provisions of the previous article shall be applicable concerning treatment and discontinuation.

The importance of the state's role in providing the treatment for drug abusers and addicts and assisting them to recover is stipulated in Article (37/D repeated) of the law. This Article allows to establish a private fund with a legal character to combat and treat addicts and abusers. Moreover, by the decision of the President of the Republic, based on the proposal of the National Council for Combating and Treating Addiction, a fund can be organized to meet the needs and specializations of the addicts or abusers. One such need is the establishment of sanatoriums and treatment institutions for the addicts and drug abusers and the establishment of detention centers for those who are convicted of drug-based crimes. Among the financial resources are the fines for crimes stipulated in the law as well as the wealth of the convict that could be confiscated.

The Article 38 also stipulated the penalties for all those who use or consume prohibited substances. It stated that 'with no breach of any maximum penalty stipulated in the law, anyone who has acquired, stored, bought, delivered, transported, planted, produced, extracted, separated or made a narcotic substance or a plant including the plants in Table 5 shall be penalized with temporary hard labor and a fine of not less than 50 thousand pounds and not more than 200 thousand pounds. This included unintentionally trading, abusing, personal use and in other legally authorized circumstances. The penalty shall be hard labor for life and a fine of at least 100,000 EP and not more than 500,000 EP if the substance of the drug cocaine, heroin or any of the substances contained in section 1 of Table 1.'

The Egyptian constitution, under Article 14, has guaranteed citizens the right to hold a public post based on efficiency without favoritism or mediation and considered it as an obligation on those who are in charge of serving people. The constitution has obliged the state to guarantee their rights, protect them and oblige them to perform their duties to achieve the interest of the people. In addition, the constitution also keeps them protected by providing that they cannot be dismissed other than disciplinary means, or except in circumstances stipulated in the law.

The Civil Service Law issued by Law No. 81 (2016) replaced the state's Civil Employee's Law issued by Law No. 47 (1978) to set a range of conditions (which are mostly from Articles 12 and 21 of the current law) for the appointment of a person in a public post. One of the most important conditions stipulated in the law is that 'whoever is appointed in a public post: (1) shall have a good behavior and repute; (2) shall not have previously been blamed for a crime or a custodial penalty for a crime against honor or honesty unless he has been rehabilitated; (3) shall not have been dismissed by a final disciplinary decision or a judgement unless it has been issued for at least four years; (4) proving his health fitness for the job by a certificate issued by the authorized health council.'

The reasons for the dismissal of the public employee were stipulated in Articles (69, 7 & 9) of the law, which stipulated that 'the public employee's service is terminated due to any of the following reasons: physically ineligible for the post, according to the decision of the authorized health council (Article 7), for a crime against honor, honesty, or loss of confidence or regard, he may be penalized to a criminal or prison punishment (Article 9).' In terms of career code of conduct and punishment, Article 57 of the law stipulated public employees to follow all bylaws, regulations, decisions, instructions, and codes of conduct which govern their position.

Article 58/1 of the law stipulates that 'every employee who violates the duty of his job or appears to be in breach of the dignity of the job, shall be disciplinarily penalized.' Article 64 also stipulates that 'every employee held in pretrial detention or following a criminal penalty shall be suspended from his post by the authority of law for the duration of his imprisonment. Moreover, he shall be deprived of half his wages if he is in pretrial detention or pursuant to an indefinite criminal sentence. He shall be deprived of his full wage if the imprisonment is pursuant to a final criminal penalty. When the employee's service is terminated due to criminal punishment, his return to work must be presented before the authorized authority to decide what follows concerning his disciplinary accountability.'

From all the previous texts of the civil service law, if the public employee meets the requirements for appointment to the public post, he is responsible for respecting his/ her post and not committing any violation that prejudices the dignity and prestige of the public post. The imprisonment or conviction of an employee for a criminal act, even far from his/ her field of work, may also result in suspension or final dismissal.

Article 61/1 stipulates the following disciplinary penalties may be imposed on the public employee: (1) Warning (2) Deduction from full wage paid for a period of not more than 60 days per year (3) Suspension for a period of not more than 6 months with half of the full wage paid (4) Postponing the promotion when it is due for no more than 2 years (5) Reduction to a job at the immediate lower level (6) Reduction to a job at the lower level directly and reducing the wage to the level it used to be before the promotion (7) Retirement (8) Dismissal. The second paragraph of the same article stipulated the following penalties that may be imposed on appointees for leadership positions: (1) Warning (2) Blaming (3) Retirement (4) Dismissal

As for the executive regulations of the Civil Service Law issued under Prime Minister's decision No. 1216 of 2017, Article 149 stipulates that the public employee shall abide by and enforce the applicable bylaws, regulations, and decisions. It lists a range of duties, including: maintaining the dignity and good reputation of the job by appearing in proper appearance at the job and considering the decency of the employee's actions with the public, his superiors, colleagues, and subordinates; and compliance with the Code of Conduct and Civil Service Ethics

Article 150 of the regulation prohibited the employee from violating applicable bylaws, regulations, decisions, and laws. A range of prohibitions was listed including any activity or conduct that would undermine public security or influence social peace or any act that affects the reputation and good conduct necessary to occupy or continue to hold the public post. The regulations listed a set of documents that a candidate for appointment to a public post must submit under Article 45. They included: a signed statement, before the Human Resources Department of the Unit, saying that he has not been dismissed by a final disciplinary decision or judgement during the last four years; and health board's decision to prove the health fitness of the person for the job, including the candidate passing health examination and drug analysis.

Article 177 of the regulations stipulates that 'if the employee's health unfitness is proven by the decision of the authorized health council, the Department of Human Resources must submit the issue to the authority or its delegates to issue a decision to terminate his service.' The authority concerned is also not allowed to terminate the employee's service due to lack of health fitness before his/ her sick leave and regular leave ends, or unless s/he requests for termination without waiting for his/her leave to expire. In all cases, the employee's service is terminated if s/he is proven to be medically unfit due to drug addiction.

Article 179 of the regulations states, 'If the employee is issued with a final judgement or a penalty restricted to freedom for a crime against honor or honesty or losing confidence or consideration, the Department of Human Resources should submit the problem to the authorized authority or its delegates to issue a decision to terminate his service.' The summary of the texts of the regulations emphasizes that the public employee must abide by the bylaws and regulations and should not commit acts constituting criminal acts or disciplinary crimes, which necessitate his dismissal, criminal or disciplinary punishment.

Perhaps it is appropriate to present a judicial application (judicial fatwa) (fatwa is an advisory opinion) issued by the General Assembly of Fatwa and Legislation, one of the departments of the Egyptian administrative judiciary (Council of State) to explain the terms of the dismissal of those public employees who are proven to be addicted. It needs to be clarified that regarding any issue related to abiding by (binding to) fatwas for legal issues or legal disputes, the General Assembly of Fatwa and legislation must be first consulted. This is stipulated in Article 66 of the Council of State Law of 1971 and was also confirmed in the judgement of the Supreme Administrative Court (Appeal No. 5582 of 48 BC) which decided that "There is no dispute in taking the opinion of the General Assembly for binding of the fatwa and legislation for determining the necessity of implementation and giving full respect to avoid undermining the judicial system. The decision on such disputes of special nature should be based on a private alignment of the sheikhs of the judges of the Council of State with their content, especially since the binding opinion issued by the General Assembly for the departments of the fatwa and legislation, shall not be removed in the prescribed executive form of judicial decisions and orders.'

In addition, it is because of the importance of these fatwas that the executive regulations of the Egyptian Civil Service Law existed. It is stipulated in Article 8 that the Central Regulatory and Management Authority must establish a database of fatwas issued by the Council of State in all related matters in accordance with the application of the provisions of law and its regulations. The legal principles contained in these fatwas should also be summarized and made available on the website of the Council. Article 9 of the Regulations also enabled the authorized authority or its legal representatives to request the opinion of the Council of State for any issue related to the application of the provisions of the law and these regulations. This request should include a comprehensive and detailed presentation citing a realistic case. Attached to the relevant documents of any case, the authority must also be notified in the form of a request to give the opinion when it is sent to the Council of State to verify that there is no precedent for disclosure in a similar situation as well as a form of preimplementation fatwa to be added to the database stipulated in the previous article and to consider their generalization in similar cases.

An example of a fatwa can be cited here, which was issued by the Vice Ministry of Water Resources and Irrigation supervisor to the Minister's Office in 2018 addressing to the Advisor, Head of the Fatwa Department, Ministry of Water Resources and Irrigation. This fatwa dealt with the request to report the legal opinion on the appropriateness of applying the text of Article 177 of the Executive Regulations of the Civil Service Law to the employees of the Ministry, if they are proven drug abusers or not. It also stated the procedure to be used against employees if they deliberately refrain from participating in such analyses. During the first campaign carried out to detect drug abusers, a sample of 380 voluntary employees of the Ministry of Water Resources and Irrigation were collected and sent to the laboratories of the General Secretariat for Mental Health in the Ministry of Health and Population to make sure whether if there were any positive samples and whether or not the drug abuse was proven. As a result, 16 ministry employees were proven to have taken drugs while 4 employees refrained from conducting these analyses. In presenting the case to the Central Department of Legal Affairs, it was stated that the provisions of the Civil Service Act of Law No. 81 of 2016 and its executive regulations were devoid of a provision granting the authorized authority the authority to suspend these employees.

However, Article 177 of the executive regulations of the above-mentioned law stipulated to terminate the employee's service if s/he was proven to be addicted to drugs and unless, s/he requested to take a legal opinion. The Article further stated that while the issue was being addressed by the Advisory Department of the Ministry of Water Resources and Irrigation, the applicant authority should provide a copy of the results of the final analyses of their cases. On the other hand, the Central Department of the Civil Service in the Central Authority of Organization and Management reported that no they had no instructions or rule books issued by the concerned authority on this subject. They had also not received any letter from the Director of the Department of Addiction and Treatment in the Ministry of Health about explaining a difference between drug abusers and drug addicts. It is impossible to identify this difference through any analysis since a medical evaluation is needed by an addiction specialist. It also depends on the history of illness, mental examination and the characteristics of addiction, and that the abuser is really an addict or t was a case of single incident. Moreover, addiction is a disease with a biological and psychological dimension and needs treatment and response.

By surveying the opinion of the fatwa administration, it presented the issue to the third committee of the fatwa department of the State Council, which decided to refer the issue to the General Assembly in its 2019 session. The committee explained that the issue was presented to the General Assembly of the advisory and legislative sections at its 2020 session. By reviewing the texts of Articles 57 and 58 of the Civil Service Law No. 81 of 2016, which were previously presented, the executive regulations also set out the provisions and procedures to terminate the service due to these reasons in Articles 149 and 177 of the Executive Regulations of the Civil Service Law referred to by the Decision of the Chairman of the Board of Trustees No. 1216 of 2017. The General Assembly found out that a regulation in Civil Service Law, Article 69, states that the service of the public employee if s/he is a proven case of drug abuser shall be terminated. It is also stated that in all such cases, the employee is terminated if he is reported to be medically unfit for the service as stipulated by the authorized health board (Hegazy, 2021b).

Public facilities need services regularly and steadily. This requires that their employees are in proper health to perform all duties and tasks perfectly to preserve the functionality of the facilities and take regular and permanent care of the public interest. In addition, each public post has its own rights and duties and if a public employee's health fitness is affected in any way, it compromises with his capability to perform his duties and fulfill responsibilities. Therefore, his legal relationship with the public must come to an end by terminating his service due to a lack of health fitness. The General Assembly noted that terminating the service in this way, following a proper legal adaptation, is not a disciplinary penalty imposed by the authorized authority on the employee but it is treated as a legal obligation in public interest.

The General Assembly also clarifies (at the end of Article 69 which has been mentioned earlier) that there exist executive regulations in the law containing provisions and procedures for the termination of service, which might occur for any of the reasons included in it. Among them is the lack of health fitness for the service. In accordance with this, Article 177 of the executive regulations of the law stipulates the provisions and procedures for such a termination. It stipulates that once the employee is proven to be medically unfit for the service by a decision of the Abbreviated Health Council, the Department of Human Resources must direct the authorized authority or its delegate to issue an order to terminate the employee's service. This should be done without violating the right of the employee to finish the duration of his sick and regular leave before issuing this decision, unless the same employee requests to terminate this leave without waiting it to complete.

The last paragraph of the referred Article 177 also reveals that the employee is terminated if s/he is proven to be medically unfit for the service because of drug addiction. This should be confirmed by a decision of the authorized health council, which decides with its competent health authority that the employee has been proven with the characteristics of drug addiction, and as a result, s/he has become medically unfit for the service.

After explaining the Fatwa on the content of Articles 57 and 58 of the previous Civil Service referred Law to them, it is confirmed that a public employee is obliged to implement and comply with administrative orders issued to conduct the health analyses. Failure to implement such orders constitutes a disciplinary violation and deserves a disciplinary penalty. The competent administrative authority has to proceed with the procedures of accountability in the light of the legal provisions stipulated by Chapter VII of the Civil Service Law.

A fatwa must also explain that it is established by reading the papers that the analyses issued by the General Department of Psychological Health in the Ministry of Health and Population clarified a definite drug abuse of 16 employees of the Ministry of Water Resources and Irrigation. Therefore, the termination of their service for lack of health fitness is under the provisions of Article 69 of the Civil Service Law and Article 177 of its executive regulations is entrusted with the identification of the health fitness of each of them for the service under the resolution of the authorized Health Council as a result of drug addiction. If this is not proven, the concerned administration must proceed with the procedures for their disciplinary accountability for drugs abuse. The drug abuse is a violation of the public post-law as well as the manners and administrative authority required by the public post to guarantee the regular functioning of the public facility to which this department belongs.

The conduct of four employees who deliberately refrained from conducting the analyses requested by the administration constituted a disciplinary violation that initiated the advancement of the administration authority to proceed with disciplinary accountability in accordance with the provisions, procedures and guarantees stipulated in Chapter VII of the Civil Service Law. This was without violating the right of the administrative authority to present these employees to the competent medical council for medical examination to determine what deemed appropriate concerning their use of drugs or not and to act according to the decision of the authorized medical council in this regard. Therefore, The General Assembly of the fatwa and legislation concluded:

First: it was decided to terminate 16 employees who had been proven to have used drugs and which were evidenced by confirming their drug addiction and lack of health fitness. This decision was taken under the authorized medical council without violating the administrative authority's right to hold disciplinary accountability for drugs abuse incident.

Second: The 4 employees presented were disciplined for refraining to conduct the necessary medical analyses to detect their drugs abuse without violating the right of the administrative authority. They were referred to the Medical Council for medical examination to confirm whether or not they had abused drugs.

What drew our attention to the fatwa was that there was a very important paragraph, which clarified that there was a difference between drugs abusers and drug addicts. In addition, it was impossible to distinguish this difference through analyses. However, a medical evaluation was needed by an addiction treatment specialist. On the other hand, the legislator also criminalized drugs abuse by a public employee in a most recent amendment under law No. 73 of 20212 (On the terms of employment and retention). This law stipulated for the appointment or continuation of the post by confirming that no drug abuse was carried out through a sudden analysis by the administrative authority. The new law defined a drug abuser as the one 'who used drugs following the provisions of Law No. 182 of 1960 on combating drugs and regulating their use and trade without a medical need.' The most important provisions of the law were:

First: It is applicable to employees of the administrative law in the state, the public sector and the public business sector, and employees of corporations whose management was based on the state services. It means that it did not apply to privatesector employees. The legislator had done well by extending the application of the law to take care of the employees in housing institutions, shelters, nursing institutions, kindergartens, schools, and private hospitals due to the importance of working in such vital services and the need for their respect.

Second: Sudden analyses were conducted, and if the sample was positive, the employee was suspended from work for a duration of 3 months with half wage. Then a confirming analysis was conducted, and if the sample was positive, s/he shall be terminated from service. All this was to guarantee the right of the employee to go to the forensic medicine unit as stipulated by the law.

Third: When the employee deliberately refrained from conducting the analysis during his service, he could be terminated from service.

Fourth: Penalizing by imprisonment and a fine of not less than 100,000 EP and not more than 200.000 EP or either of these two penalties for those who deliberately allowed those who were proven to have taken drugs at work in a public post, and those who deliberately cheated in the conduct of analyses were punishable by imprisonment.

Fifth: The law is enforced after 6 months. The law, after the approval of the Council of Ministers, granted the Prime Minister the right to issue the executive regulations of this law within 2 months after the date of its provisions, based on a joint presentation from the Minister of Social Security and the Minister of Health and Population2.

This law attempted to create a balance between the employee's personal freedom on one hand, and requirements of protecting the public capitals and facilities for the perfection of job performance in the country on the other, though drugs abusers had the same penalty i.e., dismissal from the public post which resulted from the confirmation of drug addiction. The failure to mention or criminalizing alcohol users or addicts by law and the failure to stipulate a dismissal penalty for it made this penalty specific only for drugs abusers and addicts.

The legislator did not specifically and explicitly mention the rest of the categories also to which the description of the public employee was applicable and whose provisions were regulated by specific regulations, i.e., the public employee in specific regulations (Shady Mohamed Arafa Hegazy, 2020) such as judges and diplomats. The law also did not explicitly clarify the effects of the penalty of dismissal from the public post, particularly on categories of public employees who were allowed to have other businesses and work in other professions (Hegazy, 2021a). If the new law of 2021 had been issued before the fatwa we had presented, the person who refused to conduct drugs analyses would deserve the penalty of dismissal by the force of law.

PART TWO

The Termination of The Public Employee's Service Due to Lack of Health Fitness for Proven Drugs Abuse and Addiction in The Saudi Law

The Saudi law considers personal use of drugs and drugs abuse in general as crimes and has stipulated penalties for them, whether the abuser is a public employee or not. The anti-drug and psychotropic substances law (issued under the Royal Decree No. 39 of 8 July 1426-H) stipulated in Article 3/2 that the acts which are considered criminal include 'bringing, importing, exporting, producing, manufacturing, extracting, converting, possessing, acquiring, selling, purchasing, distributing, delivering, transferring, bartering, abusing, mediating, facilitating, financing, or supplying the psychotropic substances except in the circumstances stipulated in this law and in accordance with the conditions and procedures stipulated in it.' Article 35 also clarified the criminalization of possession of narcotic substances and stipulated that (1) an unauthorized person must not possess narcotic drugs or psychotropic substances unless prescribed by a licensed doctor following the provisions of the law. He may not waive off the narcotic drugs or narcotic substances he has obtained with the intention of treatment in any way or to any person. He must return what it has been disbursed or what is left of it to its source when it is not used, and (2) in the event of the death of those who have been taking narcotic drugs, those in possession of these drugs must return them to their source.

Concerning the criminal penalties for drug abuse, Article 39 stipulated that the criminal should be penalized with at least 2-year imprisonment and not more than 5year imprisonment, and flogging no more than fifty lashes at a time, and a fine of not less than 3000 SR and not more than 30.000 SR. This penalty is imposed on anyone who possessed, acquired, transported, delivered or received narcotic substances or psychotropic substances whether it is for trading, promoting, or personal use, in the nonlicensed circumstances of this law.

Concerning the criminal penalties for the crime of drug abuse, Article 41 states that anyone who has committed one of the crimes stipulated in Articles 37 and 38 of this law, shall be penalized to at least 6-month imprisonment and not more than 2-year imprisonment for unauthorized personal use or abuse. However, the penalty is augmented in the following cases: If the abuser is responsible for combating, controlling the possession or trading drugs or narcotic substances, or functionally related to any type of drugs or narcotic substances; or if he abuses drugs or any narcotic substance, or he was under the influences of the narcotic substance while performing the tasks of his job.

In cases of exemption from criminal proceedings or the preservation of investigation for drug abuse, Article 42 stipulates that 'the lawsuit may not be filed for abuse, use, drug addiction or narcotic substances against the committer of one of these acts if he comes forward by his own or his ascendants', descendants', or spouse's or any of his relatives' request for his treatment. This requires turning in the drugs or drugs addict's possession, if any, or informing about their location. The investigation of cases of the abuse of narcotic substances or narcotic substances may be preserved for the first time if the following considerations are realized: (i) The accused should not be more than 20 years old; (2) The crime of using or abusing drugs shall not be accompanied by a criminal act that entails legal consideration; (3) The crime of using or abusing drugs is not accompanied by a traffic accident that resulted in deaths and holding exclusive rights; and (4) The accused shall not have issued any strong resistance that would harm the arresting authority or others.'

The law also permitted in Article 43 that 'instead of penalizing the addict for drugs or narcotic substances, s/he shall be admitted to one of the dedicated sanatoriums.' The regulations specify cases in which the addict may be ordered to be admitted to the sanatorium and the person who can order his admission and the conditions for his release. Article 46 of the law penalizes frequently visiting places intended for abuse drugs by imprisonment of not more than 3 months or flogging of no more than 50 lashes. This applies to those caught frequently visiting a place intended to abuse drugs or narcotic substances while abusing them and knowing that what was going on at that place. The provision of this article does not apply to his/ her spouse, ascendants, descendants, brothers, or those residing in the place intended for drug abuse unless they participate in the crime.

Article 50 of the law permits that 'instead of imposing the penalty stipulated in Article 41 of this law, the drug abuser, user of narcotic substances or psychotropic substances whose addiction is proven, can be obliged to visit a psychiatric clinic dedicated to this purpose to help him get rid of addiction. Those who are decided to be released from the sanatorium are required to visit the psychiatric clinic to confirm their recovery. The doctor is in charge of assisting the addict and reporting his condition to the committee for the consideration of addiction within 3 months of the patient's first visit to the psychiatric clinic to decide either the patient needs to stop or continue visiting the clinic. As for the confidentiality of treatment for addicts, Article 51 states that the addict should be treated in full confidentiality. His identity and any related information must be kept confidential. If any of those, who are authorized, reveal any information at any stage of the case, they shall be penalized by imprisonment for a term not exceeding 3 months or a fine of not more than 30,000 SR.

In Article 60 of the law, the Saudi legislator permitted the court to consider reasons such as the convict's morals, his past, his age, his personal circumstances, the circumstances in which the crime was committed, which suggest that the accused will not return to violate the provisions of this law, to reduce the imprisonment penalty as stipulated in Articles 37, 38, 39, 40 and 41 of this law. The court can also have a stay of execution of the imprisonment penalty imposed under Article 48 of this law for the same reasons unless he had already been penalized and had committed the same crime. The reasons for the judgement must be clarified in all cases. But if the convict returns to commit a punishable violation under this law within 3 years of the date of the stay of execution, the court has the right to revoke the stay of execution and to enforce it without violating the prescribed penalty for the new crime. If the stay of execution expires without the return of the convicted person to commit any of the punishable crimes in the law, the status of suspending judgement is as if it did not exist and all its effects expire.

The executive regulations of the drugs and psychotropic substance control law (issued by Cabinet Resolution 201 of June 10, 1431, AH) in Article 31 decides that 'the drugs in the possession of the user or addict shall be turned in to the concerned authority. What is seized shall be confirmed in an official record and turned in to the Drugs Control Administration. If the user or addict does not turn in the drugs in his possession but guided to their place, they are seized by the police if the Drugs Control Administration is not available. The same article decides to include issues of the (personal) use or abuse of drugs substances or psychotropic substances - mentioned in paragraph 2 of Article 42 of the anti-drug and psychotropic substances law - under punishable criminal acts under article 41 of the same law. The investigation of cases of the use of narcotic substances, psychotropic substances, possession with the intention to use, or personal use is documented for the first time. This is in accordance with the provisions of the penal procedure law. The order to record the investigation is obliged to report to the drug control administration in the region to register cases that are recorded in a special register under Article 42 paragraph 2 of the drug and psychotropic substances law. Article 32 of the Regulations stipulates the addict as the one who is proven to be addicted as per a medical report issued by a dedicated sanatorium. In its second paragraph, the article stipulates cases, in which the addict may be ordered to be admitted to the sanatorium.

The rest of the treatment controls for those who are confirmed to be drug addicts have also been defined by article 32 of the regulations. Article 33 of the regulations stipulates the tasks and competencies of the Committee for the Consideration of Addictions, and those who must join the committee are delegates from different government authorities such as the Ministry of Interior Affairs and the Ministry of Health. The same article also stipulates the procedures for the committee's work. This emphasizes the importance of the committee and its significant role in assisting the matters related to addiction. Moreover, the texts we have presented criminalizing drugs abuse are similar in their entirety to the Egyptian law, especially in considering illegal and unauthorized use as a crime with penalties. The provision of sanatoriums for the treatment of addiction under control is stipulated by law.

The Kingdom's regulations guarantee the right to work for everyone capable to work without any discrimination of any kind, as the government's constitution (The Saudi constitution) stipulated in Article 28 that 'the state facilitates the fields of work for anyone who is capable to perform so and enacts regulations that protect the employee and employer.' Article 1 of the civil service law stipulates that 'competence is the basis for the selection of employees for a public post.' Article 4 of the civil service law stipulates the conditions for the appointment of a public employee, in paragraphs C and D, which both stipulate that the employee should have health fitness, good conduct and ethics. Article 11 of the law also stipulates the following for an employee: (1) To upraise above all that violates the honor and dignity of the job, whether in the workplace or outside it; (2) To consider the decency of his actions with the public, superiors, colleagues and subordinates; (3) The time of work shall be allocated to perform the duties of his post and to carry out the orders issued to him accurately and honestly within the limits of regulations and instructions.

Article 30 of the Civil Service Law stipulates the reasons for the termination of the public employee's service and states that 'taking into account the reasons for termination stipulated by the regulations, the employee's service shall be terminated for several reasons including health unfitness. Stipulating the health unfitness as one of the reasons for the termination of the public employee's service is the same as stipulated in the Human Resources Executive Regulations in the Civil Service (issued under Ministerial Resolution 1551 of June 9, 1440 AH) in Article 210/E. Article 224 of the Executive Regulations also stipulates that 'the employee's service shall be terminated if s/he is proven to be medically unfit to work permanently and definitively by a decision of the General Medical Authority. This shall be from the date of the notification of the decision of his/ her employer to the Authority, but not more than 30 days from the date of the decision of the committee. The Ministry of Civil Service issues the regulatory framework to demonstrate health unfitness to work.'

Article 225 of the Executive Regulations permits the return of an employee who had been terminated due to health reasons to serve again without competition for his previous job if it is vacant or to get another job if he meets the conditions of employment in the government authority, in which he previously worked or otherwise under the following conditions: (1) S/he needs to be presented to the General Medical Authority to decide whether he is fit for the job; (2) The suspension period should not exceed 2 years from the date of termination due to his health unfitness to the date of application for returning to work; (3) The rank to be returned should not be above the rank s/he held before his/ her service was terminated.

The employee shall be dismissed by the force of the law, and the dismissal is considered for disciplinary reasons shall be prepared following Article 228 of the Executive Regulations in the following cases: (1) If there is a judgement against him/ her with deterministic character by a competent judicial authority authorized to confirm his guilt punishable by any of the legal penalties and punishing him with a penalty; (2) If s/he is judged with deterministic character by committing a crime that requires retribution; (3) If s/he is sentenced with deterministic character by a competent judicial authority, declared convict and judged for the following offences: bribery, forgery, embezzlement, drugs and alcohol trading or promotion; and (4) If s/he is sentenced to more than one-year imprisonment and the stay of the execution of the original penalty does not affect or an amnesty from the guardian of the original punishment for the application of the judgement of this article unless otherwise stipulated for the amnesty order.

Article 229 also stipulates that 'if the employee is judged with a penalty from any competent authority assigned to the law of imposing certain penalties, this penalty will not require dismissal by the force of the law. This issue shall be submitted to the disciplinary court to decide the appropriate disciplinary penalty against him/ her.' Article 230 states that considering the judgement of Article 19 of the civil service system 'if the dismissed from service is not dismissed for disciplinary reasons, or anyone in a similar situation, his/ her service is terminated from the date of being dismissed for disciplinary reasons or pretrial detention".

The regulation of the frameworks for the Human Resources Executive Regulations (1440, A) exist to establish how to prove cases of work injury and health disability. These regulations are irrespective of whether based on the request of the employee or the authority s/he works for, whether his work is inside or outside the Kingdom. The regulations also determine what is meant by the competent medical authorities, and list them including the general medical authorities of the Ministry of Health.

Concerning the regulations of the evidence of disability to work, Article 12 stipulates that 'if the employee's condition indicates that s/he is disabled to work, the application is submitted to the General Medical Authority to decide whether he is partially, permanently or definitively disabled and his/ her health condition at work.' Article 13 also stipulates that (A) 'if the General Medical Authority determines that the employee is partially unable to work, the disability ratio and its position shall be reduced and shall be treated as stipulated in Article 65 of the Civil Service Human Resources Executive Regulations' and (B) if the General Medical Authority determines that the employee is incapable to work permanently and definitively, the government authority in which the employee works terminates his/ her service for his/ her health disability in accordance with the text of Article 224 of the Civil Service Human Resources Executive Regulations. Finally, Article 14 stipulates that 'the procedures for proving the employee's incapability to work shall be according to the following (A, B & C):

A. The General Medical Authority determines the health position of the employee and decodes whether s/he has the ability to carry out a particular work and also determines the kind of tasks he is disabled to do in the following cases: (1) if the employee who is treated for physical diseases and his/ her due leave or part of it ran out as his/ her treatment continues; (2) if the employee who suffered an injury or illness due to work and without error and his/ her due sick leave or part of it ran out; (3) if the employee who suffered a mental or neurological illness and his/ her due sick and exceptional leave ran out, and he no longer has any credit in his regular leave and has not performed his duties due to his continued treatment.

B. The Human Resources Department of the government authority, where the employee works, shall address the General Medical Authority after the expiry of the sick leave periods under Article 141 of the Civil Service Human Resources Executive Regulations to determine the health position of the employee.

C- The employee's position should be followed up by his employer if he does not return after the end of his sick leave to verify his health position before issuing a decision to terminate his services because of the interruption in work.

As for the determination of disciplinary penalties, Article 32 of the personnel disciplinary law states that disciplinary penalties that may be imposed on the employee include the following:

First: For the employee of the tenth and below ranks or their equivalent: (1) Warning (2) Blaming (3) Deduction from salary not exceeding the net salary of three months and the monthly deduction not exceeding one-third of the net monthly salary (4) Denying a periodic allowance (5) Dismissal.

Second: For the staff ranked 11th and above or their equivalent: (1) Warning (2) Blaming (3) Denying a periodic allowance.

Article 34 of the regulations also stipulates that 'the disciplinary penalty shall be considered in the fact that the choice of penalty is appropriate with the degree of violation. The precedents and mitigating and aggravating circumstances of the violation are considered to be within the limits of the stipulated penalties in this law. The employee shall be exempted from the penalty for ordinary administrative or financial violations if it is proven that s/he has committed the violation following a written order issued to him by his/ her competent superior while the employee has written to him that the act committed is a violation.'

Article 35/2 prohibits the imposition of a disciplinary penalty on the employee only after being investigated in writing, hearing his statements and defense. This shall be proven in the decision of penalty with the written record attached to it. This article was issued under Royal Decree No. (M/15) on April 10, 1419, AH. Article 41 further determines the one who accused the suspect employee of a violation or several related violations, namely, the Supervisory and Investigation Authority (SIA) if they are at the time of the commission of the violation or violations or when they are discovered they belong to more than one authority. If the SIA considers that the facts enforce penalties, the case is referred to the Board of Grievances. Disciplinary action shall be dropped following Article 42 within 10 years of the occurrence date, and this period shall be interrupted by any investigation or disciplinary procedure. The period shall take effect again from the last procedure. If the accused are numerous, the interruption of time for one of them is considered an interruption for all. Article 45 determines the fate of the employee who is penalized for imprisonment. S/he has to submit the case to the SIA for consideration of his/ her disciplinary accountability. In addition, it stipulates to inform the SIA of the employee's interruption of work due to imprisonment penalty.

One of the judicial judgements can be cited which was issued in a case concerning the proven drugs abuse by a public employee issued by the administrative courts as a judicial application in the Saudi law. The facts of the case are as follows: The SIA filed a lawsuit under the indictment issued by the branch of the Authority in the Holy Capital in 1433 AH. The defendant was a public employee on the post of "observer" in the fourth rank in the Holy Capital Investigations Office in 1430 AH. His conduct and behavior during duty were not good. He committed an act that offended the honor and dignity of the job, and he was judged with a Narcotic substances test report in 1427 AH. He was also judged in 1430 AH from the Hospital of the General Security Forces in Riyadh with the proof of abusing weeds (hashish). He ended up requesting dismissal from the civil service. The prosecutor and the defendant attended the hearing session. The prosecutor then claimed in his confrontation, repeating what was stipulated in the indictment, upholding his request to dismiss the defendant from the civil service. By presenting this to the defendant, he requested clemency in the judgement, adding that the post was his only source of income.

The Court illustrated the reasons for its judgement: the lawsuit is the entitlement of the administrative court under Article 12/E of the Grievances Office law and Article 40 of the personnel disciplinary law. The authority of this court is spatial, and the department is qualitative in accordance with the decisions of the Head of the Grievances Office, Chairman of the Administrative Judicial Council No. 128-242 of 1432 AH. It has fulfilled all its planned formal and procedural conditions and had proceeded during the term as stipulated in Article 42 of the personnel disciplinary law. As a result, it is accepted in format.

Since any act of the public employee is contrary to his/ her job duties and requirements after a disciplinary violation that is punishable, the competent disciplinary authority is, therefore, authorized to consider what falls within its scope in accordance with Article 31 of the personnel disciplinary law. This stems from the reflection on administrative law, which inevitably has an impact on disciplinary law. That is, to address the multiplicity and diversity of public posts and the different ways of employees in doing something that contradicts them. Furthermore, the disciplinary court is not to be blamed if its certainty is based on any evidentiary methods possible in accordance with the circumstances of the submitted lawsuit before it without restricting the precedence of its evidence and without appealing against its judgement on this matter, as long as the evidence of its judgement is included in the lawsuit documents, which was based on adequate evidence to make it.

Thus, what was attributed to the defendant in the documents of this lawsuit and his response in the investigation disclosed a serious violation of the requirements of his job which revealed what was sufficient to create a disciplinary violation against him under Articles 4/D and 11/A of the civil service law. Therefore, he must be held accountable for it. Since the general rule says that disciplinary penalties may be inflicted on the public employee who is punishable by conduct. It is up to the second authority to choose it, by balancing the degree of the penalty and how appropriate it is for the extent of the violation, taking into consideration the circumstances associated with it, and the belief that this penalty is a punishment for the employee who has committed a violation in the job. Then punishment is a way that is not based on penalty originally. As much as it carries the meaning of warning the violator and reforming him and deterring others, protecting the public post, and ensuring that the public facility is functioning regularly and steadily.

After considering the defendant's case, and his remorse for what had happened by him, the court considered other matters, including the most important ones like the job was his only source of income, and also, he supported his family. The Assembly tended to mitigate disciplinary punishment and ended in accordance with the requirements of Article 34 of the personnel disciplinary law until the penalty would be as stipulated in Article 32/1/3 of the law, the appropriate punishment to achieve the desired goal of discipline. Therefore, the court sentenced convicting the defendant of violating the code of conduct determinants of his post and penalized him by deducting from his salary the wages of two and a half months. The monthly deduction should not exceed one-third of the net salary, as detailed in the given reasons. In our view, the court had given its verdict appropriately and considered the stipulated legal texts in at least two ways: First, the court gave cognizance to what stipulates in the provisions and regulations of the civil service, what jurisprudence and the judiciary system have been established, such as the application of the principle of disciplinary legitimacy (Abu Ala, 2015; Al-Zaher, 2014) and the importance of penalties for acts that violate the ethics of the public post (Al-Malt, 1967). Second, the court took into account the humanitarian considerations, including the remorse of the convicted employee for his actions, and that he had no other income resource except his job.

Perhaps this judgement that we have presented is the only one issued in the Grievances Office's codes and the only one related to the subject of our research. However, other issued judgements are related to the penalties imposed on the convicted employees for possession of narcotic substances, including two judgments that can be exemplified here: first, the judgement of the Administrative Court of Appeal (No. 2152/2/1434 AH) which rejected to convict and penalize the public employee disciplinary because he was previously criminally convicted of possession of narcotic substances and a criminal judgement was issued based on a suspicion of possession. The employee was driving his government authority's car while there were narcotic substances present in it. In addition, the car was reportedly used by more than one employee. Second, the judgement of the Administrative Court of Appeal (No. 1115/S/1/3 of 1435 AH) which rejected the appeal of a public employee on the decision to dismiss him from teaching due to the proven crime of possession of narcotic pills. Although the final judgement in the crime has not been issued yet, only because he got himself involved in a position of suspicion that is incompatible with being a teacher.

The judgements and texts of the Saudi law make it distinct from the Egyptian law by explicitly providing for the consideration of humanitarian aspects when convicting the public employee of drugs abuse or addiction. However, we did not find explicit texts in the Saudi laws and regulations, similar to that of the Egyptian legal system, which might suggest the prohibition of the admission of the appointment or continuation of the public employee in his/ her job if s/he is proven to be a drug abuser or addict. On the other hand, we emphatically conclude that the Saudi legal system has no legal impediment to hold criminally or disciplinary the abuser or the addict accountable, and to terminate his service permanently.

We also found that Saudi law has been going through rapid legislative developments in recent years, coinciding with the requirements and changes of the modern era pursuing a better life in various fields of life for its citizens. It is possible to stipulate explicit texts similar to the Egyptian law in criminalizing the public employee's addiction and drugs abuse. Especially since the Saudi Shura Council has been given the right to study bylaws and regulations, treaties, international conventions, privileges, and propose what it sees appropriate for them (Shady Mohamed Arafa Hegazy, 2020). It is also possible through the competent Shura Council committees to study Egyptian law and possibly compare the legal regulations of the two countries.

Conclusion and Recommendations

This study attempted to present the Egyptian and the Saudi criminal legal texts, civil service regulations and regulations that criminalize drugs abuse. These regulations also criminalize the public employee's drugs abuse and addiction resulting in the dismissal penalty. Through what we have presented, we have reached a range of results and recommendations. Both the Egyptian and Saudi legal systems have criminalized drugs abuse and assigned dedicated institutions to treat addiction with specific controls following anti-drug laws. Both legal systems have stipulated the health fitness of the public employee as a condition for appointment and continuation of the public service. Further, both Egyptian and Saudi legal systems have determined the disciplinary penalties following civil service bylaws and regulations that a public employee deserves in the case of a breach of the duties and morals of the public service, regardless of the type of violation.

The Egyptian legal system has recently amended its civil service bylaws and regulations to clearly stipulate that a public employee's service may be terminated if he/she is proven to be guilty of drug abuse and addiction under legally determined controls. The Saudi regime contains measures that punish public employees who are found to have abused or become addicted to drugs by terminating their employment as a disciplinary violation, or by rejecting their appointment from the start.

We believe that with a new legislative, the Egyptian legislator should explicitly clarify the applicability of the new law to the individuals who acquire a position of the public employee but have their own laws such as diplomats and judges. Further, we propose to the Egyptian legislator to add a new legislative amendment allowing a longer duration between the first and final analyses. The public employee may have a basic problem regarding abuse or addiction which can be resolved before s/he is permanently dismissed. We also propose that the Egyptian legislature should explicitly stipulate the consideration of humanitarian aspects in the new law when convicting the public employee for drug abuse or addiction. We believe the Saudi legal system should amend civil service bylaws and regulations to explicitly stipulate that any public employee who is a drug user or drug addict must be terminated to protect public funds and facilities or any other losses s/he may cause. Our recommendations for the Egyptian legal system can be useful for the Saudi legal system if it chooses to adopt legislation modifications in deciding to remove a public employee who is proved to be guilty of drug abuse or addiction.

Footnote

1 Prince Sattam Bin Abdulaziz University, Saudi Arabia, E-mail: [email protected]

Endnotes

1 Egypt's anti-drug law issued under Law No. (182) of 1960 on June 5, 1960.

2 Law No. (73) of 2021 was published in the Official Newspaper - Issue 23 repeated (A) on June 16, 2021.

References

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