Kuwait Court of Cassation principle number 355

Summary: - Acts of sovereignty outside judicial review. Their nature. Those acts issued by the government relating to high policy or to measures it takes as a governing authority—not an administrative authority—within its political function and by virtue of its supreme authority. The reason therefor. To preserve the State’s sovereignty and existence internally and externally. - Acts of sovereignty outside judicial review. The legislature’s failure to define or delimit them. Its implication. The courts determine the legal description—characterization—of an act issued by the government to establish whether or not it is an act of sovereignty. In doing so, they are subject to review by the Court of Cassation. - Acts of sovereignty. The elements distinguishing them from ordinary administrative acts. Their nature. - The appellant’s request—a soldier at the Ministry of Defence—in his originating action for the appointment of an expert to calculate the retirement gratuity due to him following his expulsion from service, without addressing the decision expelling him from military service and reinstating him therein. It is not considered a dispute concerning acts of sovereignty. The reason therefor. It is a matter having no political character that would place it beyond judicial review. Its implication. Jurisdiction to determine it lies with the ordinary courts possessing general jurisdiction. The challenged judgment’s departure from this view. A defect requiring its cassation. Rule: It is established in the jurisprudence of this Court that the right of recourse to the courts is among the public rights vested in all people, and every citizen may resort to his natural judge for protection in asserting or defending a right he claims for himself. The courts possess general judicial jurisdiction and therefore have jurisdiction to determine all disputes, whatever their nature and whoever their parties, unless jurisdiction to determine them is assigned by a provision of the Constitution or the law to another body for one reason or another. Any restriction imposed by the legislature to limit judicial jurisdiction that does not contravene the Constitution is an exception to a general principle and must therefore not be interpreted expansively. What matters in determining the jurisdiction of a judicial body is the relief sought by the plaintiff in his action. Acts of sovereignty refer to those acts issued by the government relating to high policy or to measures it takes as a governing authority—not an administrative authority—within its political function and by virtue of its supreme authority to preserve the State’s sovereignty and existence internally and externally, and thus fall outside judicial review. Since the legislature did not define or delimit the acts of sovereignty which Article 2 of the aforementioned law prohibits the courts from examining, it has left their determination to the judiciary, contenting itself with declaring the principle of their existence. Accordingly, the courts have jurisdiction to determine the legal description of an act issued by the government and whether or not it constitutes an act of sovereignty. The trial court’s characterization of this matter is subject to review by the Court of Cassation. Although it is impossible to formulate an exhaustive and exclusive definition of acts of sovereignty or enumerate them precisely, there are elements distinguishing them from ordinary administrative acts, the most important being their prominent political character. The appellant’s final requests in the action were for the appointment of an expert to calculate the retirement gratuity due to him pursuant to Decree No. 70 of 1980 concerning retirement gratuities for non-Kuwaiti military personnel, preparatory to an award thereof in his favour, without requesting annulment of the decision expelling him from military service. Article 1 of this law provided that its provisions apply to non-Kuwaiti military personnel, and Article 4 thereof provided for entitlement to a retirement gratuity for anyone whose service ends for reasons other than those specified in Article 2 thereof, which specified the cases of entitlement to a retirement pension on grounds of death, a judgment declaring uninterrupted absence, discharge for health reasons, reaching the age prescribed by law for leaving service, or retirement at the age of 40. These provisions show that the extent of the appellant’s entitlement to a retirement gratuity upon his expulsion from service does not address the decision expelling him from military service and reinstating him therein, even if that decision was coupled with depriving him of his financial entitlements. Rather, the dispute is confined to the latter aspect relating to his financial entitlements, a matter having no political character that would place it beyond judicial review. This dispute is therefore not an act of sovereignty, and jurisdiction to determine it consequently lies with the courts possessing general jurisdiction. Since the challenged judgment departed from this view and upheld the appealed judgment ruling that the court lacked jurisdiction to hear the action, it is defective in a manner requiring its cassation.