Kuwait Court of Cassation principle number 339

Summary: - Membership in the Kuwaiti Journalists’ Union under its Articles of Association. Who may be admitted and the conditions that a member must satisfy. - The General Assembly of the Journalists’ Union holds the supreme authority in the management of the Union. Its composition and powers. - Nomination for membership of the Board of Directors of the Journalists’ Union. The conditions that a candidate must satisfy. - Convening of the Board of Directors of the Journalists’ Union. Conditions for its validity. - Maintaining before the court of merits at both levels that the membership of one of the respondents in the Journalists’ Union was void for the reasons stated by the appellants, and its effect on the validity of the procedures for convening the emergency meeting of the Board of Directors and the number of members of the Extraordinary General Assembly, and the attendant uncertainty as to the number of members. The judgment’s failure to examine this defence and scrutinize the documents submitted in its support to ascertain their significance, and its failure to respond to the appellants’ defence concerning them despite its materiality. A deficiency invalidating the judgment and requiring its cassation. Rule: Article (4) of the Articles of Association of the Kuwaiti Journalists’ Union provides that: “Anyone working in the profession of journalism or in any of the professions and trades associated with journalistic work and the technology and arts of journalism, whether print, audio or visual journalism, electronic journalism or otherwise, shall be admitted as a member of the Union, provided that the following conditions apply to him: (a) He must be at least eighteen years of age; (b) He must be of good character and conduct; (c) He must not be a member of another trade union organization.” Article (18) provides that: “The General Assembly is deemed to hold the supreme authority in the management of the Union, and consists of all Kuwaiti members who have paid their annual subscriptions and whose membership in the Union has lasted at least six months.” Article (26) provides that: “Nomination for membership of the Union’s Board of Directors shall be in accordance with the following requirements: a ........... (b) At least one year must have elapsed since his admission to membership in the Union (except for the first term......,” and Article (28) provides that: “The Board of Directors shall meet once every two months, and for its meeting to be valid, more than half the members must attend. If this number is not present, the meeting shall be postponed for three days, and the Board members shall attend at the time of the second meeting. This second meeting shall be valid if at least half the Board members attend .....”. That being so, it is established from the papers and documents that the appellants maintained before the court of merits at both levels that the membership of respondent No. (1) under Third was void, because his membership in the Kuwait Airways Union was during the period from 1/1/1999 until 30/3/2008, the date of the last deduction from his salary and the cancellation of his membership in that union. This was contrary to what he declared when completing the remaining papers for joining the Union on 12/4/2005 as one of its founding members, and as also one of the litigants who brought Action No. 244/2006 Administrative, seeking annulment of the negative decision consisting of the Minister of Social Affairs’ refusal to proclaim the Union. However, the challenged judgment disregarded this defence and did not examine it or afford it its due response, confining itself to what it stated in its reasoning that (as for the invalidity of the membership of respondent No. (1) under Third because he belonged to two unions at the same time, this was not conclusively established by the papers). Nor did it attend to examining the effect of this on the validity of the procedures for convening the emergency meeting of the Board of Directors dated 23/12/2008 to reconstitute the executive bureau. Secondly, the judgment accepted that the number of identity cards issued by the Union reached 216, whereas there is a letter from the administrative authority indicating that the number of General Assembly members is 69 members, and also a statement issued by the Union indicating that the number of General Assembly members in (2007 – 2008) reached 73 members, contrary to reality. Consequently, this matter is not conclusively established. This is what the Assistant Undersecretary for Legal Affairs at the Ministry of Social Affairs and Labour indicated in his memorandum dated 5/2/2009 concerning the Extraordinary General Assembly of the Journalists’ Union held on 18/12/2008: that there was clear uncertainty concerning the total number of General Assembly members, on the basis of which the majority required for the validity of the request to convene is calculated. Thirdly, the judgment did not scrutinize the documents submitted by the appellants concerning the invalidity and nullity of the membership of the executive bureau members pursuant to Article (4) of the Articles of Association, whether concerning work in the profession of journalism, as in the case of the third respondent under item Third, or concerning fulfilment of the condition of good character and conduct in respect of the eighth respondent under item Third and another. Finally, the judgment did not address what the appellants raised concerning the invalidity of the nomination of the three aforementioned members for membership of the Board of Directors, they having previously been expelled from membership in the Union. Since the challenged judgment disregarded scrutiny of these documents to ascertain their significance and did not respond to the appellants’ aforementioned defence despite its materiality, it is tainted by an invalidating deficiency, which invalidates, which requires its cassation, without any need to examine the remaining grounds of the appeal.