Kuwait Court of Cassation principle number 116

Summary: - Characterization of an administrative act. The determining consideration is not the form and structure of the act, but its substance and purpose. - The distinction between a negative and a positive administrative decision. It rests on the administration’s power to express its will by taking such positive decision as it considers appropriate, as required by law, creating a legal position for the person concerned or an administrative one therein, or refraining from taking it, which constitutes a negative decision. A decision issued with all its constituent elements and after completion of the stages required by law. Effect. It is effective upon issuance. Condition. It does not require ratification by a higher authority. The administrative authority is obliged to implement it. - The judicial authority, like the executive and legislative authorities, exercises part of the powers of the State, whose source is the nation. Implication. Its judgments conclusively resolve disputes and represent the truth once they acquire the force of res judicata. Effect. The State’s authorities must submit to them and give effect to their requirements. - The Supreme Judicial Council. Its empowerment to issue decisions for the administration and organization of the affairs of justice or concerning the affairs of its members. Reason. The explanatory memorandum to the Judicial Authority Law. Implication. The Council’s decisions are effective as administrative decisions binding upon the administrative authority. Effect. The administrative authority’s plea that the application is inadmissible because there is no negative decision forming the subject of the dispute, on the ground that no provision in a law or regulation obliges it to implement the Supreme Judicial Council’s decisions. Unfounded. - The system of government under Article 5 of the Constitution. Its foundation on the principle of separation of the three powers. Implication. The judicial authority is an original authority, like the executive and legislative authorities, deriving its existence and entity from the Constitution, issuing judgments that guarantee independence in performing its function and administering the affairs of justice in a manner preserving its members’ integrity and impartiality. Rule: It is settled in the case law of this Court that the determining consideration in characterizing an administrative act is not the form and structure of the act, but its substance and purpose; that the distinction between a negative and a positive decision rests on the administration’s power to express its will by taking such positive administrative decision as it considers appropriate, as required by law, creating a legal position for the person concerned or affecting it, or refraining from taking it, which constitutes a negative decision; and that it is also established that, once a decision is issued with all its legal constituent elements and has completed the stages required by law, it is effective upon issuance if it does not require ratification by a higher authority, and the administration must provide the financial appropriations. It is also established in legal doctrine and case law that the judicial authority, like the executive and legislative authorities, possesses authority and exercises part of the powers of the State, whose source is the nation. The judgments it issues conclusively resolving disputes are regarded as representing the truth once they acquire the force of res judicata, and the State’s authorities must submit to them and give effect to their requirements. It also issues decisions for the administration and organization of the affairs of justice or concerning its members’ affairs. The legislature has empowered the Supreme Judicial Council to issue these decisions in implementation of the principle of separation of powers, in respect for judicial independence, and in submission to the provisions of the Constitution. From this standpoint, the legislature was keen, in the Law on the Organization of the Judiciary, to support its competences in a manner ensuring that it can exercise them, as explained in the explanatory memorandum to that Law: (Since the Supreme Judicial Council is the foundation of judicial independence and the manifestation and guarantee of that independence, the legislature has been keen to support its competences and enable it to exercise them. Whereas its opinion had been advisory in all matters relating to the judiciary and the prosecution under Decree No. 19 of 1959 concerning the Law on the Organization of the Judiciary, repealed by Article Four of Decree-Law No. 23 of 1990 concerning the Organization of the Judiciary, currently in force, the draft requires its approval in many matters and also empowers it to issue decisions in certain circumstances). It neither withheld from it nor prohibited it from issuing other decisions. Accordingly, from all the foregoing, decisions issued by the Supreme Judicial Council concerning its members’ affairs or ensuring further means of a dignified life for them, and securing that life at its most critical stages upon reaching retirement age, keeping pace with other judicial systems in the countries of the world, thereby imparting reassurance concerning their present and future, are effective decisions binding upon the administrative authority. Thus, those decisions, namely the Supreme Judicial Council’s decisions, possess the constituent elements of an administrative decision. On that basis, the Court considers that the plea raised by the administrative authority has no basis in the proper application of the law and must be rejected. Whereas, on the basis of the foregoing, the Court gives the application its true description and correct legal characterization in accordance with the litigants’ purposes in their claims, the applicants and intervening parties therefore seek through their present application, first: annulment of the decision issued by the respondent administrative authority refusing to implement Supreme Judicial Council Decision No. 2 of 2011 establishing a health and social welfare fund for members of the judiciary, with the consequences arising therefrom. Second: annulment of the decision issued by the respondent administrative authority refusing to implement Supreme Judicial Council Decision No. 2 of 2011 insofar as it provides for a retirement gratuity, with the consequences arising therefrom. Third: annulment of the decision issued by the administrative authority refusing to implement Supreme Judicial Council Decision No. 32 of 2013 insofar as it provides for the comprehensive salary benefit for senior officials and other members of the judiciary, and their retention of all financial, in-kind and non-material privileges, including the car, telephone and special passport for themselves and their families, with the consequences arising therefrom. Whereas, as to the merits of the application, the Court, as a preliminary to its judgment, and noting that the State’s Constitution is among modern and contemporary democratic constitutions in view of its balanced provisions concerning the three powers of the State, observes that it established the system of government, under Article (50), on the basis of the separation and cooperation of powers in accordance with its provisions. It delineated for each of the three legislative, executive and judicial authorities the sphere within which it operates, setting out its function and the constraints governing its activity, defining each authority’s competence, none of which it may relinquish in whole or in part, and the independence of each authority in itself, thereby achieving equality and balance among them. This entails that the judicial authority is an original authority standing on an equal footing with the legislative and executive authorities and deriving its existence and entity from the Constitution itself, not from legislation. The Constitution entrusted it alone with the administration of justice, independently of the other authorities, and guaranteed its impartiality and independence. It devoted to it a special chapter (Chapter Five) of Part Four), like the executive and legislative authorities, to which it devoted Chapters Three and Four respectively), allocating to it provisions guaranteeing its independence in performing its function and administering the affairs of justice in a manner preserving its members’ integrity and impartiality.