Kuwait Court of Cassation principle number 343

Summary: - An annulment action. Its nature. An action in rem whose subject is the challenge to the administrative decision itself; the judgment rendered therein has res judicata effect against everyone, whether or not represented therein, whenever it affects a right established for them. - An administrative decision. Its issuance satisfying its legal requisites. Effect thereof. It is considered effective upon its issuance by the authority empowered to issue it, without requiring ratification by a higher authority, and produces its legal effect immediately and directly. Exception. Example. - The entitlement of members of the judiciary and the Public Prosecution, upon termination of their service, to a gratuity in appreciation of their services equivalent to five years' salary, without prejudice to their right to a retirement pension, if their service reaches (35) years; in the event of total disability or death, the gratuity is equivalent to two years' salary. The decision appended to Supreme Judicial Council Decision No. 2 of 2011 dated 23/1/2011. The meaning of the salary according to which that gratuity is calculated. It is the salary inclusive of all prescribed allowances and increments. The decision encompasses the entitlement of members of the judiciary and the Public Prosecution covered by the provisions of the Social Insurance Law to healthcare for themselves and their families. Limits and conditions of this health and social care. - The Health and Social Care Fund for current and former members of the judiciary and the Public Prosecution covered by the provisions of the Social Insurance Law. Its affiliation and resources. - The Supreme Judicial Council's establishment of a right for members of the judicial authority. Its similarity to what the National Assembly (the legislative authority) establishes for employees of the Assembly's General Secretariat by its Speaker's Decision No. 38 of 2013. The executive authority's obligation to implement the aforementioned Supreme Judicial Council decision. Rule: It is established in the jurisprudence of this Court that an annulment action is an action in rem whose subject is the challenge to the administrative decision itself, and the judgment rendered therein has res judicata effect against everyone, whether or not represented therein, whenever it affects a right established for them. Furthermore, although it is established that the administrative decision has been issued satisfying its legal requisites, it is effective upon its issuance by the authority empowered to issue it, without requiring ratification by a higher authority, and produces its legal effect immediately and directly, unless its implementation requires measures to put it into execution in a manner that produces its effects. That being so, and since the aforementioned Decision No. 2 of 2011 issued by the Supreme Judicial Council on 23/1/2011 was supplemented by an attachment confirming its decision in detail, providing in its first article that: “Without prejudice to the right of members of the judiciary and the Public Prosecution to the retirement pension prescribed by the Social Insurance Law, each shall be entitled, upon termination of his service for any reason—except termination for disciplinary reasons—to a gratuity in appreciation of his services equivalent to five years of his salary if his service in the judiciary or the Public Prosecution amounts to at least thirty-five years. Upon termination of service due to total disability or death—regardless of the length of service—the member of the judiciary or the Public Prosecution whose service has ended, or the deceased's lawful heirs, shall be entitled to a gratuity equivalent to two years' salary. In all cases, the gratuity shall be calculated according to the last salary upon termination of service, inclusive of all prescribed allowances and increments,” and the provision in its second article: “A Health and Social Care Fund shall be established for current members of the judiciary and the Public Prosecution covered by the provisions of the Social Insurance Law, and former members who have spent no less than thirty years in the service of the judiciary and the Public Prosecution, and the heirs of those whose service ended by death, as well as those whose service ended for health reasons and who spent fifteen years in service. The care shall include the spouses, children, parents whom these persons support. The Fund shall be affiliated with the Supreme Judicial Council, and its resources shall consist of the following. (a) The amount allocated from the judiciary's budget annexed to the budget of the Ministry of Justice. (b) The value of contributions collected from the beneficiaries of the Fund, which shall be determined in accordance with the regulations governing the Fund. The Supreme Judicial Council shall appoint the chairman of the Fund and issue the implementing regulations for this Fund and its statutes, including how the Fund's monies are to be invested and the circumstances, controls, and limits for benefiting from its services.” More than three years have elapsed since this decision was issued, and the administrative authority against which the application was made has not taken action to adopt the legal and financial measures to proceed with its implementation, consolidating the principle of cooperation between the authorities to achieve the purpose intended by its issuance, in a manner ensuring material stability for members of the judiciary and the Public Prosecution upon reaching retirement age, protecting them against need, and also ensuring their stability and psychological security through the existence of a system encompassing health and social care, so that they may perform their sacred mission with peace of mind in preserving individuals' freedoms and rights, establishing the principles of justice in society, delivering rights to their holders, and ensuring social peace, and so that they are not preoccupied with matters that may affect their work in one way or another. When the Supreme Judicial Council establishes a right for members of the authority, this is the very same course followed by the National Assembly (the legislative authority), whose Speaker issued Decision No. 38 of 2013 amending the Administrative and Employment System Regulations for Civilian Employees of the Assembly's General Secretariat, providing for payment of a retirement gratuity to every employee who has spent thirty years or more in service, equivalent to his comprehensive monthly salary for every year spent in the Assembly's service. This confirms and supports the soundness of what the Supreme Judicial Council decided in the same regard. It follows that the administrative authority's decision refusing to proceed with the procedures for implementing Supreme Judicial Council Decision No. 2 of 2011 was incorrect and in violation of the Constitution and the law, requiring a judgment annulling it, with the effects consequent thereon.