Kuwait Court of Cassation principle number 439

Summary: - The principle of legality. Its import. The administration’s obligation, when issuing an administrative decision, to comply with legal rules that must be observed. The legislature may grant it discretionary authority allowing it freedom to intervene or refrain, and to choose the timing and manner of such intervention and the content of the decision it takes. It may restrict this authority by leaving it no discretion as to granting or withholding, mandatorily imposing upon it the action it must take whenever the conditions laid down in that regard are satisfied. Judicial review in the latter case concerns: conformity of the subject matter of the administrative decision with the provisions of the law, and whether the administration, in its action, complied with or contravened those provisions. - Review of the grounds upon which the administrative decision was based as to their correctness and the extent to which the grounds are inferred from the actual circumstances disclosed by the documents. A matter of fact for the court of merits, without further review. Condition thereof. Rule: It is established in the jurisprudence of this Court that the principle of legality binds the administration, when issuing an administrative decision, to legal rules that must be observed. The legislature may grant it discretionary authority by allowing it freedom to intervene or refrain, and to choose the timing and manner of such intervention and the content of the decision it takes. Its authority in that regard may be restricted, in the sphere in which the legislature has left it no discretion as to granting or withholding, mandatorily imposing upon it the action it must take whenever the conditions laid down in that regard are satisfied, as its role in this case is confined to verifying that those conditions are satisfied. Judicial review in this case consists in ascertaining the conformity of the subject matter of the administrative decision with the provisions of the law, and whether the administration, in its action, complied with or contravened those provisions, as where it refuses to grant an individual a particular licence despite satisfaction of its conditions, if the law gives it no discretion in that case to grant or withhold it. Review of the grounds upon which the decision was based as to their correctness, and the extent to which the grounds are inferred from the actual circumstances disclosed by the documents, is a matter of fact falling within the authority of the court of merits, without further review, provided that its inference is reasonable and based on what is established in the case documents.