Kuwait Court of Cassation principle number 224

Summary: - No person may be compelled not to join an association or union. Article 43 of the Constitution. - Issuance of a decision regulating the conditions to be followed by anyone wishing to practise human medicine and dentistry in Kuwait pursuant to Law 23 of 19620 concerning the Practice of Human Medicine and Dentistry and Law No. 25 of 1960 concerning the Practice of Pharmacy, and the provision in Article 2 of the first Law that physicians and pharmacists shall not be entered in the registers for practising the profession until completion of the procedures for their admission as members of the Kuwait Medical Association and submission of the document evidencing this from the said Association, and the continued existence of this decision under Law 25 of 1981 concerning the Practice of Human Medicine, Dentistry and the Auxiliary Professions. Its implication. That requiring membership of this Association for anyone wishing to pursue any of the foregoing professions is a condition thereof. The judgment’s departure from this view and its ruling admitting the application to annul the challenged decision on the ground that challenging it is not subject to a time limit. Vitiates it by contravention and misapplication of the law. Rule: It is established that, although the trial court, by virtue of its power to ascertain and understand the facts of the case, may identify the true nature of the contested administrative decision in accordance with its constituent elements of competence, form, purpose, cause and subject matter, which must be present for it to be lawful, or determine that it was issued as a nonexistent act where the defect affecting it is so grave as to reduce it to nonexistence, in that it was issued by a non-administrative authority or by an administrative authority other than that entrusted by the legislature with issuing it, this is conditional upon its basing its judgment on sound reasons having an established basis in the case papers and leading to the conclusion reached. It is also established that the period for challenging a general regulatory decision begins on the date of its publication in the Official Gazette, while the period for challenging individual decisions issued in implementation thereof and affecting individual legal positions runs from the date of their publication or notification to the person concerned. The person concerned’s certain knowledge of the decision takes the place of publication or notification. Article (7) of Decree-Law No. 20 of 1981 establishing a circuit at the Court of First Instance to hear administrative disputes fixed this period at sixty days from publication, notification or establishment of the person concerned’s certain knowledge thereof. Accordingly, since it is established that the challenged Minister of Health’s Decision No. 60 of 1965 was applied to the respondent when he applied to join the Kuwait Medical Association and signed his membership papers on 12/2/2009, as one of the conditions required for appointment to a post at the Ministry of Health, he thereby acquired certain knowledge of the challenged decision on that date. He was therefore required to bring his action challenging it within the sixty days following that certain knowledge. Since he brought it on 17/6/2013, he brought it after expiry of the legally prescribed period. This is not affected by the erroneous legal statements in the judgment’s reasons that this decision was nonexistent, whether for contravention of Article 43 of the Constitution or for contravention of the law. To the extent necessary to determine the present complaint concerning the true nature of the decision and the procedural form of the action, the provision of Article 43 of the Constitution that no person may be compelled to join any association or union means that a person has freedom of choice, of his own will, between joining an association or union or not joining it and enjoying its membership and the rights arising therefrom, including practising the profession. Decision No. 60 of 1965 was issued to regulate the conditions to be followed by anyone wishing to practise medicine or pharmacy pursuant to Law No. 23 of 1960 concerning the Practice of Human Medicine and Dentistry in Kuwait and Law No. 25 of 1960 concerning the Practice of Pharmacy in Kuwait, until Law No. 25 of 1981 concerning the Practice of Human Medicine, Dentistry and their Auxiliary Professions was issued. Article 3 thereof empowered the Minister of Health to determine the conditions required for practising the profession for those subject to its provisions. Since Article 2 of the aforementioned Minister of Health’s Decision No. 60 of 1965 provided that "physicians and pharmacists shall not be entered in the registers referred to in the preceding Article until completion of the procedures for their admission as members of the Kuwait Medical Association and submission of the document evidencing this from the mentioned Association, and this decision remained in existence under this latter Law, the implication is that membership of this Association is required of anyone wishing to pursue any profession regulated by the Law as one of the conditions necessary to pursue the profession for which he seeks authorisation. Since the challenged judgment departed from this view in admitting the application to annul the challenged decision on the ground that challenging it was not subject to a time limit, it is vitiated by contravention and misapplication of the law, requiring its partial cassation in this respect, without any need to examine the remaining grounds of appeal.