Kuwait Court of Cassation principle number 424

Summary: - A general regulatory decision. The time limit for challenging it begins on the date of its publication in the Official Gazette. Issuance of individual decisions implementing it which affect individual legal positions. The time limit for challenging them is 60 days from the date of their publication, notification to the person concerned, or his acquiring certain knowledge of them. - Establishment of certain knowledge of the challenged decision and filing the action after 60 days have elapsed from that date. Its implication. Its inadmissibility. This is not undermined by the erroneous legal statements contained in the judgment. - No person may be compelled to join an association or trade 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 professional practice registers until the procedures for their admission as members of the Kuwait Medical Association have been completed and a document evidencing this has been submitted by the said Association, and the continued existence of this decision under the operation of Law 25 of 1981 concerning the practice of human medicine, dentistry, and auxiliary professions. Its implication. That requiring membership of this Association for anyone wishing to practise any of the foregoing professions is a condition for doing so. The judgment's departure from this view and its ruling admitting the application to annul the challenged decision because a challenge to it is not subject to a time limit. Renders it defective for contravention and misapplication of the law. Rule: It is established that, although the court of merits, by virtue of its authority to ascertain and understand the facts of the case, may identify the true nature of the contested administrative decision according to the constituent elements on which it was based—competence, form, purpose, cause, and subject matter—which must be present for it to be lawful, or determine that it was issued as a legally nonexistent decision if the defect affecting it was 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, the condition for this is that it base its judgment on sound reasons having an established basis in the papers and leading to the conclusion it 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, and that, for individual decisions issued in implementation of it which affect individual legal positions, the time limit for challenging them runs from the date of their publication or notification to the person concerned. The person's acquisition of certain knowledge of the decision takes the place of publication or notification. Article (7) of Decree-Law No. 20 of 1981 establishing a circuit in the Court of First Instance to hear administrative disputes fixed this period at 60 days from the date of publication, notification, or establishment of the person's certain knowledge of it. That being so, it is established that the challenged Minister of Health Decision No. 60 of 1965 was applied to the respondent when he submitted an application to join the Kuwait Medical Association and signed his membership papers on 12/2/2009, as one of the conditions required for assuming a position at the Ministry of Health. He therefore acquired certain knowledge of the challenged decision on that date, and was accordingly required to bring his action challenging it within the 60 days following that certain knowledge. Since he brought it on 17/6/2013, he brought it after the expiry of the legally prescribed period. This is not undermined by the erroneous legal statements in the reasons of the judgment that this decision was legally nonexistent, whether because it contravened Article 43 of the Constitution or because it contravened the provisions of the law. To the extent necessary to decide the present ground concerning the true nature of the decision and the procedural form of the action, Article 43 of the Constitution, which provides that no person may be compelled to join any association or trade union, means only that a person has the freedom to choose, of his own volition, between joining an association or trade union or not joining it, and enjoying its membership and the rights arising from it, 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 delegated to the Minister of Health the determination of the conditions necessary for practising the profession by those subject to its provisions. The aforementioned Minister of Health Decision No. 60 of 1965 provided in Article 2 that: "Physicians and pharmacists shall not be entered in the registers referred to in the preceding Article until the procedures for their admission as members of the Kuwait Medical Association have been completed and a document evidencing this has been submitted by the said Association. This decision remained in force under the operation of this latter Law, the implication being that membership of this Association is required of anyone wishing to practise any of the professions regulated by the Law as one of the conditions necessary to practise the profession for which he seeks authorization. Since the challenged judgment departed from this view in ruling that the application to annul the challenged decision was admissible because a challenge to it was not subject to a time limit, it is defective for contravention and misapplication of the law, requiring its partial cassation in this respect without the need to examine the remaining grounds of appeal.