Kuwait Court of Cassation principle number 117

Summary: - The judicial authority, like the executive and legislative authorities, exercises part of the powers of the State, whose source is the nation. Import: the judgments it issues conclusively determine disputes and constitute the embodiment of truth once they acquire the force of res judicata. Effect thereof. The State authorities are obliged to 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 relating to the affairs of its members concerning appointment, promotion, transfer and secondment to any work other than the original work assigned to each of them. No other body may obstruct or diminish that competence. Effect thereof. The Civil Service Council has no authority over the decisions of the Supreme Judicial Council. Rationale and basis thereof. - Secondment of judges and members of the Public Prosecution. Empowerment of the Supreme Judicial Council to determine the rules of secondment and the calculation of the remuneration prescribed for them with a minimum, without setting a maximum. Referral to the competent administrative body to determine the amount of remuneration and imposition upon it of parameters for that assessment. Import thereof. It may not be assessed at a percentage below the minimum prescribed by law. Contravention thereof. Its effect. The judiciary has the power to supervise administrative bodies by reconsidering the assessment in a manner preserving the dignity and standing of the member of the judiciary. Rationale and basis thereof. - The general provisions contained in the Civil Service Decree apply only to matters for which no provision has been made in the Law on the Organization of the Judiciary, the laws connected therewith and the decisions of the Supreme Judicial Council. Rationale thereof. The Civil Service Council has no authority over decisions issued by the Supreme Judicial Council concerning the affairs of judges and members of the Public Prosecution. - The Supreme Judicial Council's decision that the secondment allowance due to a member of the judiciary or the Public Prosecution shall not be less than 30% without prejudice of the salary. The Council may extend its supervision to what the receiving body determines regarding the assessment of the secondment allowance. Example concerning the secondment allowance due to a counsellor at the Court of Appeal for his secondment to both the Arbitration Panel and the Technical Office of the Court of Appeal. Rule: It is established—in the jurisprudence of this Court—that the judicial authority, like the legislative and executive authorities, possesses authority and exercises part of the competences and powers of the State, whose source is the nation. The judgments it issues conclusively determining disputes are considered the embodiment of truth once they become final and irrevocable, and the State authorities are obliged to submit to them and give effect to their requirements. It also issues decisions for the administration and organization of the affairs of justice or relating to the affairs of members of the judicial authority. 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, which guaranteed the impartiality and independence of the judicial authority and devoted a special chapter to it (Chapter Five) of Part Four. Accordingly, in the Law on the Organization of the Judiciary promulgated by Decree-Law No. 23 of 1990, the legislature was careful to support the competences of the Supreme Judicial Council in a manner ensuring its exercise thereof, as explained in the explanatory memorandum to this Law, namely that (since the Supreme Judicial Council is the foundation of judicial independence, the manifestation of that independence and its guarantee, the legislature was careful 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 the promulgating provisions of the currently applicable Law on the Organization of the Judiciary, in which the legislature required its approval in respect of many matters and also empowered it to issue decisions in certain circumstances, Article (17) thereof provided that “The Supreme Judicial Council shall be competent to consider, at the request of the Minister of Justice, all matters relating to the appointment of judges and members of the Public Prosecution, their promotion, transfer and secondment to work other than their original work, in the manner set out in this Law. The Council may express its opinion on matters relating to the judiciary and the Public Prosecution and may propose whatever it deems appropriate concerning them, on its own initiative or at the request of the Minister of Justice.” Accordingly, the legislature vested in the Supreme Judicial Council alone—to guarantee the independence of the judiciary in performing its sacred mission of applying the Constitution and the law, upholding legality and preserving the foundations of the State governed by law—the power to regulate the affairs of members of the judicial authority and members of the Public Prosecution in all matters relating to their employment affairs, including appointment, promotion, transfer and secondment to any work other than the original work assigned to each of them. Consequently, no other body may obstruct or diminish this competence. This is neither altered nor contradicted by what Article 19 of the aforementioned Decree-Law No. 15 of 1979 undertook to regulate by empowering the Civil Service Council to lay down the rules, provisions and conditions for granting compensation for additional work performed by an employee outside official working hours, financial rewards for outstanding services and other allowances required by the nature of the duties of the position, and other financial, material and non-material benefits. Its provisions apply, pursuant to Article (3) of the same Decree-Law, to employees of government bodies. As for bodies in which service affairs are regulated by special laws, such as the Law on the Organization of the Judiciary, whose provisions apply to two categories, namely judges and members of the Public Prosecution, it is therefore this Law that governs the affairs of members of the judicial authority, alongside the laws connected therewith which regulate certain aspects of their employment status, including Decree-Law No. 14 of 1977 concerning the grades and salaries of judges and members of the Public Prosecution, in addition to Supreme Judicial Council decisions concerning the administration and organization of the affairs of justice, whether within or outside the judicial authority, as decisions binding upon those to whom they are addressed. As such, they constitute the legal framework governing all affairs of members of the judicial authority. The import and necessary consequence thereof is that the general provisions contained in the Civil Service Decree apply only to matters for which no provision has been made in the Law on the Organization of the Judiciary, the laws connected therewith and the decisions of the Supreme Judicial Council. Since the legislature provided in Article (3) of the aforementioned Decree-Law No. 15 of 1979 that its provisions shall not apply to military personnel of the army, police and National Guard, as they represent bodies subordinate to the executive authority, it does not apply—a fortiori—to members of the judiciary and members of the Public Prosecution, as members of the judicial authority, one of the three authorities of the State. Accordingly, the Civil Service Council has no authority over decisions issued by the Supreme Judicial Council concerning any of the affairs of judges, since the latter alone, to the exclusion of all others, controls the reins of matters concerning members of the judiciary and members of the Public Prosecution. Nor may it review those decisions, since all of this constitutes an encroachment upon the judicial authority, interference in its affairs and diminution of the powers of the Supreme Judicial Council derived from the Constitution and the law. Whereas Article (25) of the Law on the Organization of the Judiciary provides that “A judge may be seconded to perform judicial or legal work other than his work or in addition thereto.......”, and in implementation of these provisions, the Supreme Judicial Council issued Decision No. (15) of 2012 dated 11/4/2012 and No. 18 of 2012 dated 23/5/2012 concerning the rules governing the secondment and transfer of members of the judiciary and members of the Public Prosecution, as amended by Council Decision No. 25 of 2012 dated 27/9/2012, containing the provision in item (15) thereof, First, under the heading Remuneration and Allowances Due for Secondment, that “A member of the judiciary or a member of the Public Prosecution shall be entitled to remuneration or an allowance for any additional work assigned to him other than his original work, in accordance with the following parameters: (a) The member of the judiciary or member of the Public Prosecution must perform the additional work pursuant to a secondment decision issued by the competent body, or to a provision of law if the secondment is by virtue of his office. (b) A member of the judiciary or a member of the Public Prosecution shall be entitled to the remuneration or allowance during the period in which he actually performs the additional work, as well as during official holidays and leave authorized for him for which he is entitled to a salary under the Civil Service System, provided that the leave is not contiguous with the date of the end of his service. (c) The remuneration or allowance prescribed for the additional work shall be included in the cash allowance for periodic leave for the categories stipulated in item Second of Supreme Judicial Council Decision No. 12/2009. (d) The body to which the member of the judiciary or member of the Public Prosecution is seconded shall assess the amount of the remuneration or allowance due for the additional work on the basis of the burdens required by that work and the hearings to determine disputes or the issuance of judicial or non-contentious orders that it entails. Equality between similar additional works shall be observed, and the remuneration or allowance shall be paid within the minimum and maximum limits determined by that body, while ensuring that the allowance is not less than 30% of the secondee's basic salary ....” This indicates that the legislature vested the Supreme Judicial Council with competence to consider all matters relating to the affairs of members of the judiciary and members of the Public Prosecution concerning appointment, promotion, transfer and secondment, as the body controlling judicial affairs. The law authorized the Council to permit a judge to be seconded to perform additional work alongside his original work, consisting of judicial or legal work. To preserve the prestige of the judiciary and members of the Public Prosecution and ensure the proper performance of their mission in a manner befitting them, the Supreme Judicial Council regulated the rules prescribed for secondment and the rules for calculating the remuneration that must be prescribed for the seconded judge or member of the prosecution. In this regard, although it referred determination of the amount of remuneration or secondment allowance to the competent administrative body, it obliged that body to apply rules governing that assessment, including (1) the burdens required by the work and the hearings to determine disputes or the issuance of non-contentious or judicial orders that it entails. (b) Application of the rules of equality and assessment of the consideration for similar additional works, provided that payment is made within its minimum and maximum limits. (c) In all cases, the allowance paid to a member of the judiciary or a member of the prosecution must not be less than 30% of his basic salary in consideration for the additional work he was seconded to perform. Accordingly, in all cases, the amount of remuneration granted for additional work must not be than 30% of the amount of the basic salary, and the Supreme Judicial Council did not set a maximum for it. If the body entrusted with paying this allowance or remuneration complied with those parameters and paid the remuneration below its minimum, or assessed it in a manner disproportionate to the additional effort expended by the judge or member of the prosecution, the judiciary, in exercising its supervision over the legality of its conduct, pursuant to the original jurisdiction vested in it by the legislature in Article (50) of the Law on the Organization of the Judiciary, may assess the amount of this remuneration or allowance in light of the aforementioned parameters, until the Supreme Judicial Council takes the initiative to reorganize the secondment of judges and members of the Public Prosecution comprehensively in all its aspects, particularly by determining the consideration or remuneration for secondment in each secondment decision and in accordance with objective rules that take into account the grade of the judge or member of the Public Prosecution, the nature of the work in the bodies to which he is seconded or in which he is assigned judicial work, and the effort expended in the work assigned to him alongside his original work, without leaving assessment of that consideration and remuneration to those bodies, in a manner ensuring its direct application by the bodies to which they are seconded and preserving the dignity and standing of the member of the judiciary and member of the Public Prosecution, since the work he performs in those bodies is an extension of his judicial work, and in a manner striking a balance between the judiciary's participation with those bodies in undertaking their burdens and responsibilities and ensuring its fulfillment of its sacred mission without prejudice to its prestige and independence. That being so, and it being established that the applicant holds the position of counsellor at the Court of Appeal and, following the approval of the Supreme Judicial Council, was seconded to serve as a member of the Arbitration Panel at the Ministry of Justice from 13/10/2011 until the date of judgment, and performed the work to which he was seconded, and the allowance assessed by the administrative body for this secondment was pursuant to the letter of the President of the Civil Service Bureau No. M Kh M/613/14/1996 dated 17/9/1996, which the respondent administrative body continues to apply to date, paragraph (1) thereof stated that the amount of remuneration granted to the chairman of the Arbitration Panel is (500 dinars) and to a member of the Arbitration Panel is (400 dinars) for each case in which a final judgment is issued, meaning that he must have participated in the case at all its stages until a final judgment was issued. If, however, he participated in some of its scheduled hearings, he is granted consideration out of the amount of the remuneration equivalent to his participation, pursuant to the second paragraph of the same letter. Meanwhile, the Supreme Judicial Council, in its Decision No. 15/2012, as amended by Decisions Nos. 18, 25 of 2012, determined the minimum below which the remuneration prescribed for a judge or member of the Public Prosecution must not fall, although it left it without setting a maximum. Since the respondent body did not assess for the applicant an amount of fair remuneration for the effort he expended and the additional work he performed during his secondment to the Arbitration Panel in accordance with the aforementioned Supreme Judicial Council decisions, the Court therefore considers that the judiciary should exercise its jurisdiction by virtue of its power to supervise the actions of the administration and restore them to the proper course. Accordingly, the Court considers that its amount should be fixed at 50% of the applicant's basic salary monthly, with the rules laid down by the Civil Service Bureau concerning the remuneration granted to the chairman and members of the Arbitration Panel to be reconsidered by the Supreme Judicial Council and in accordance with the Court's foregoing conclusion concerning the Civil Service Council. It is also established that the applicant was seconded to membership of the Technical Office at the Court of Appeal following the approval of the Supreme Judicial Council at its meeting No. 11/2013, effective 8/4/2013, in addition to his original work. The remuneration which the administrative body decided to pay him monthly, at KWD 300, on the basis of the letter of the President of the Civil Service Bureau No. 1421332 dated 9/4/2014, besides being contrary to the governing rules established by the Supreme Judicial Council which the respondent administrative body must observe, was also disproportionate to the effort expended by the applicant in this additional work. Therefore, the Court assesses the amount of the remuneration granted to the applicant for performing the work he was seconded to undertake at the Technical Office of the Court of Appeal at a percentage of.......... of the applicant's basic salary, taking guidance from similar and comparable works.