Kuwait Court of Cassation principle number 442

Summary: - The appointment, promotion, transfer and secondment of members of the judiciary. Within the competence of the Supreme Judicial Council as the body overseeing their affairs. A judge may be seconded to perform judicial or legal work other than, or in addition to, his own work. - Controls governing the secondment of members of the judiciary and rules for calculating remuneration. The Supreme Judicial Council’s referral of the determination of the amount of secondment remuneration or allowance to the administrative authority. The latter authority must observe the rules for determining remuneration in accordance with the Judicial Organization Law and the Supreme Judicial Council’s decisions concerning secondment. Basis thereof. - Establishment that a judge was seconded, in addition to his original work, as chairman of the Marriage Registrars Committee following the approval of the Supreme Judicial Council. Its effect. His entitlement to the remuneration or allowance prescribed for secondment. The administrative authority to which he is seconded must determine the amount of remuneration in accordance with the controls laid down by the Supreme Judicial Council in its decisions. The administrative authority’s refusal to do so. A violation of the law. The court may exercise its authority to assess remuneration, guided by similar additional work for the same authority, the standing and grade of the seconded member of the judiciary, and the effort expended in the additional work. Example. Rule: The first paragraph of Article (17) of the Judicial Organization Law issued by Decree-Law No. 23 of 1990 provides that: "The Supreme Judicial Council shall be competent to consider, at the request of the Minister of Justice, all matters relating to the appointment of judges and members of the Public Prosecution, their promotion, transfer and secondment to work other than their original work, in the manner set out in this Law." The last paragraph of Article (25) thereof provides that: "A judge may be seconded to perform judicial or legal work other than, or in addition to, his own work, by a decision of the Minister of Justice following the approval of the Supreme Judicial Council." In implementation of the foregoing provisions, the Supreme Judicial Council issued its Decision No. 15/2012 dated 11/4/2012 and No. 18/2012 dated 23/5/2012 concerning the rules governing the secondment and transfer of members of the judiciary and members of the Public Prosecution, as amended by Council Decision No. 25/2012 dated 27/9/2012, including the provision in clause (15) thereof, First, under the heading "Remuneration and Allowances Due for Secondment", that: A member of the judiciary or a member of the Public Prosecution shall be entitled to remuneration or an allowance in return for any additional work assigned to him other than his original work, in accordance with the following controls: (A) The member of the judiciary or member of the Public Prosecution must undertake the additional work pursuant to a secondment decision issued by the competent authority, or to a statutory provision if the secondment is by virtue of his office. (B) The member of the judiciary or member of the Public Prosecution shall be entitled to the remuneration or allowance during the period in which he actually performs the additional work, as well as during official holidays and authorized leave for which he is entitled to salary under the Civil Service System, provided that the leave is not contiguous with the date of termination of his service. (C) The remuneration or allowance prescribed for the additional work shall be included in the cash payment in lieu of periodic leave for the categories specified in clause (Second) of Supreme Judicial Council Decision No. 12/2009. (D) The authority to which the member of the judiciary or member of the Public Prosecution is seconded shall assess the amount of remuneration or allowance due for the additional work on the basis of the burdens required by that work and the convening of hearings for adjudicating disputes or the issuance of judicial or non-contentious orders that it entails, with due regard to equal treatment of similar additional work. The remuneration or allowance shall be paid within the minimum and maximum limits determined by that authority, provided that the allowance is not less than 30% of the seconded basic salary..." The foregoing provisions signify that the legislature vested the Supreme Judicial Council with competence to consider all matters relating to the affairs of members of the judiciary and members of the Public Prosecution, including appointment, promotion, transfer and secondment, as the body overseeing judicial affairs. The Law permitted the Council to authorize the secondment of a judge to perform judicial or legal work other than, or in addition to, his own work. The Council did not wish to leave these matters without governing rules to ensure the judiciary’s proper discharge of its mission. It therefore issued the aforementioned decision, containing—in part—controls governing secondment and rules for calculating remuneration. Although it left the determination of the amount of secondment remuneration or allowance to the administrative authority, it laid down rules for the latter to observe when determining it. These rules include: (A) The burdens required by the work and the convening of hearings for adjudicating disputes and the issuance of judicial or non-contentious orders that it entails. (B) Observance of equal treatment of similar additional work, with payment being made within the minimum and maximum limits determined by that authority. (C) Ensuring that the allowance is not less than 30% of the secondee’s basic salary. Applying the foregoing to the case presented, it appears that the applicant is a member of the judiciary holding the position of "Deputy President of the Court of Cassation" and was seconded to work as chairman of the Marriage Registrars Committee at the request of the Ministry of Justice and following the approval of the Supreme Judicial Council, as established by its Decision No. 30 of 2011, for a period of two years, in addition to his original work. Since none of the respondents disputes that the applicant undertook his additional work chairing that committee and completed its work from the date of issuance of his secondment decision, the condition for entitlement to the remuneration or allowance prescribed for secondment is fulfilled in his case. Accordingly, the administrative authority to which he was seconded, and which the first respondent in his official capacity grants, was required to determine the amount of remuneration due to him for this additional work in accordance with the controls and rules laid down by the Supreme Judicial Council as set out above. Since it refrained from doing so, it violated the law, and the applicant is entitled to compel it to do so. In these circumstances, the judiciary may exercise its authority to assess the amount of secondment remuneration or allowance, guided by similar additional work for the same authority for which the amount of remuneration was assessed, and taking into account the standing and grade of the seconded member of the judiciary and the effort expended in this additional work. Accordingly, and since it is established from Ministry of Justice Decision No. 1 of 2013 that it fixed the monthly remuneration of the chairman and members of the Supreme Elections Committee at KD 2000 for the chairman and KD 1800 for each of its members, and since the additional work assigned to its chairman and the members of this committee is similar to the work to which the applicant was seconded on the committee in dispute, therefore, in implementation of the principle of equal treatment of similar additional work, the Court rules that the applicant’s monthly remuneration for his additional work chairing the Marriage Registrars Committee be fixed in accordance with the aforementioned Decision No. 1 of 2013, and within the limits of his claim in his action, at KD 1500 monthly for the period of secondment.