Kuwait Court of Cassation principle number 446

Summary: - Characterization of an administrative act. The determining consideration is not the form and structure of the act but its substance and purpose. - Distinguishing between a negative and an affirmative administrative decision. Depends on the administration’s authority to express its will by adopting such affirmative decision as it considers appropriate in accordance with the requirements of the law, creating a legal position for the person concerned or an administrative one therein, or refraining from adopting it, which constitutes a negative decision. - A decision issued fulfilling its constituent requirements and completing the stages required by law. Effect thereof. It is deemed effective upon issuance. Condition thereof. It does not require ratification by a higher authority. The administrative authority’s obligation to implement it. - The judiciary, like the executive and legislative branches, exercises part of the powers of the State, whose source is the nation. Its implication. The judgments it issues conclusively determine disputes and express the truth once they acquire the force of res judicata. Effect thereof. The authorities of the State must abide by them and give effect to their requirements. - The Supreme Judicial Council. Its empowerment to issue decisions for the administration and organization of the affairs of justice or concerning the affairs of its members. Reason therefor. The Explanatory Memorandum to the Judicial Authority Law. Its implication. The Council’s decisions are effective as administrative decisions binding on the administrative authority. Effect thereof. The plea raised by the administrative authority that the application is inadmissible for absence of the negative decision constituting the basis of the dispute, because no provision in a law or regulation requires it to implement the decisions of the Supreme Judicial Council. Unfounded. - The system of government pursuant to Article 5 of the Constitution. Based on the principle of separation of the 3 powers. Its implication. The judiciary is an original authority, like the executive and legislative branches, deriving its existence and entity from the Constitution, issuing judgments that ensure independence in the performance of its function and the administration of the affairs of justice in a manner preserving the integrity and impartiality of its members. Rule: It is settled in the jurisprudence of this Court that the determining consideration in characterizing an administrative act is not the form and structure of the act but its substance and purpose, and that the distinction between a negative and an affirmative decision depends on the administration’s authority to express its will by adopting such affirmative administrative decision as it considers appropriate in accordance with the requirements of the law, creating or affecting a legal position for the person concerned, or refraining from adopting it, which constitutes a negative decision. It is also established that, once a decision is issued fulfilling its legal constituent requirements and completing the stages required by law, it is effective upon issuance, provided that it does not require ratification by a higher authority, and the administrative authority must provide the financial appropriations. It is also established in legal scholarship and jurisprudence that the judiciary, like the executive and legislative branches, possesses authority and exercises part of the powers of the State, whose source is the nation. The judgments it issues conclusively determining disputes are regarded as expressing the truth once they acquire the force of res judicata, and the authorities of the State must abide by them and give effect to their requirements. It also issues decisions for the administration and organization of the affairs of justice or concerning the affairs of its members. The legislature has empowered the Supreme Judicial Council to issue these decisions in implementation of the principle of separation of powers, respect for judicial independence, and compliance with the provisions of the Constitution. From this standpoint, the legislature, in the Law on the Organization of the Judiciary, was careful to reinforce its powers in a manner ensuring their exercise, as explained in the Explanatory Memorandum to this Law: (Since the Supreme Judicial Council is the basis of judicial independence and the manifestation and guarantee of that independence, the legislature has been careful to reinforce its powers and enable it to exercise them. After its opinion had been advisory in all matters relating to the judiciary and the Public Prosecution pursuant to Decree No. 19 of 1959 promulgating the Law on the Organization of the Judiciary, repealed by Article 4 of Decree-Law No. 23 of 1990 concerning the Organization of the Judiciary, currently in force, the draft required its approval in many matters and also empowered it to issue decisions in certain cases). It did not withhold from it or prohibit it from issuing other decisions. Accordingly, from all the foregoing, decisions issued by the Supreme Judicial Council concerning the affairs of its members, or ensuring the provision of further means of a dignified life for them and securing that life at its most critical stage upon reaching retirement age, in keeping with the other judicial systems in the countries of the world, thereby imparting reassurance concerning their present and future, are effective decisions binding on the administrative authority; that is, the decisions of the Supreme Judicial Council. Consequently, they possess the constituent elements of an administrative decision. On that basis, the Court considers that the plea raised by the administrative authority has no basis in the correct law and must be rejected. Whereas, on the basis of the foregoing, the Court gives the application its true description and correct legal characterization according to the parties’ purposes in their claims, the applicants and intervening parties therefore seek by their present application, firstly:- annulment of the decision issued by the respondent administrative authority refusing to implement Supreme Judicial Council Decision No. 2 of 2011 establishing the Health and Social Welfare Fund for Members of the Judiciary, with the effects consequent thereon. Secondly:- annulment of the decision issued by the respondent administrative authority refusing to implement Supreme Judicial Council Decision No. 2 of 2011 insofar as it provides for a retirement gratuity, with the effects consequent thereon. Thirdly:- annulment of the decision issued by the administrative authority refusing to implement Supreme Judicial Council Decision No. 32 of 2013 insofar as it provides for the benefit of the comprehensive salary for senior officials and other members of the judiciary and their retention of all monetary, in-kind and non-material privileges, including the car, telephone and special passport for them and their families, with the effects consequent thereon. Whereas, regarding the merits of the application, the Court, as a preliminary to its ruling and noting that the Constitution of the State is among modern and contemporary democratic constitutions, in view of the balanced provisions it contains for the 3 powers of the State, established the system of government pursuant to Article (50) thereof on the basis of separation and cooperation of powers in accordance with its provisions. It delineated for each of the 3 powers, legislative, executive and judicial, the sphere in which it operates, specifying its function and the restrictions governing its activity, and defining for each power its jurisdiction, of which it may not relinquish all or any part, and the independence of each power in itself, thereby achieving equality and balance among them. This entails that the judiciary is an original authority standing on an equal footing with the legislative and executive branches and deriving its existence and entity from the Constitution itself, not from legislation. The Constitution entrusted it alone with the matter of justice, independent of the other powers, and guaranteed its impartiality and independence. It devoted to it a separate chapter (Chapter 5) of Part 4), like the executive and legislative branches, to which it devoted Chapters 3 and 4 respectively), singling it out with provisions ensuring independence in the performance of its function and the administration of the affairs of justice in a manner preserving the integrity and impartiality of its members.