Kuwait Court of Cassation principle number 174

Summary: - Legislative provisions. The general rule is their connection to their objectives. The reason. Any legislative regulation is not intended for its own sake, but is merely a means of achieving those objectives. - The legislature’s prescribing specific controls and laying down known foundations for issuing an administrative decision. Its import: violating them taints the decision with the defect of violation of the law. Rule: It is judicially established that the general rule concerning legislative provisions in a State governed by law is their connection to their objectives, since any legislative regulation is not intended for its own sake, but is merely a means of achieving those objectives. It is established in the jurisprudence of this Court that, where the legislature prescribes specific controls and lays down known foundations for issuing an administrative decision, violation of these controls and foundations taints the decision with the defect of violation of the law. It is also established that the administrative authority’s power to make appointments to vacant positions is subject to two matters: one is the restrictions prescribed by law, and the other is the regulatory restrictions by which the administration binds itself. Whereas the provision of Article (2/a) of Ministerial Decision No. 24 of 2004 concerning the Regulations on the Affairs of Members of the Teaching and Training Staff at the Saad Al-Abdullah Academy for Security Sciences, and the amendments thereto, states: “a- The Saad Al-Abdullah Academy for Security Sciences shall determine its requirements for members of the teaching and training staff at all levels in light of the volume of work, development plans and appropriations approved in the budget, and shall advertise the aforementioned positions in local and Arab newspapers, provided that the advertisement is local in January; if the required specialisations are not filled, advertising abroad shall take place in March.” The import of this provision is that advertising is the Academy’s means of meeting its requirements for members of the teaching and training staff at all levels. Advertising takes place in local newspapers in January; if the specialisations are not filled, advertising abroad takes place in March. The guiding objective of advertising is to attract scientific and training competence and expertise from civilians and military personnel to raise the standards of education and training, and so that the Academy may fulfil the mission entrusted to it under its founding decree. The means to that end is for advertising to be general, without restriction, while its discretionary power thereafter to select from applicants of both categories remains, in light of the controls and criteria prescribed in those Regulations. The appellant issued Circular No. 39 of 2010 concerning advertising for filling teaching staff positions at the Saad Al-Abdullah Academy for Security Sciences and restricted it to members of the Ministry’s police force, contrary to the provision of Article (2) of the aforementioned Regulations, which was general. The rule is that general wording is taken in its generality unless restricted. Accordingly, restricting the advertisement to military personnel contravened the provisions of the Regulations and departed from the public interest, which is achieved by unrestricted advertising for filling teaching and training staff positions at the Academy to ensure equal opportunities, thus rendering it deserving of annulment.