Kuwait Court of Cassation principle number 448

Summary: - The administrative authority expresses its will through decisions it issues on the basis of its discretionary power while performing its legally prescribed function. - Administrative authorities may determine such bonuses and incentives as they deem appropriate, in accordance with the principle of separation of powers, to reward employees in appreciation of their efforts throughout their service. The reason. An example. - The benefit of the comprehensive salary for members of the judiciary and their retention of the benefits of office. Its basis: Supreme Judicial Council Decision No. 32 of 2013. Its purpose: to provide them with the means of a dignified life and secure those means upon reaching retirement age, to provide the means for performing their function to the fullest extent, to instill judicial reassurance in the sanctuary of justice, and to consolidate the concept of the State governed by law enjoyed by the State of Kuwait. The Ministry of Justice must undertake to provide the financial appropriations required for that purpose, enabling the judicial authority to perform its lofty mission, by including the financial appropriations necessary to implement the Supreme Judicial Council’s decision. Rule: It is established in this Court’s jurisprudence that the administrative authority expresses its will through decisions it issues on the basis of its discretionary power where the law grants it authority to do so, while performing its legally prescribed function, with the intention of producing particular legal effects. It is also established that administrative authorities may, for considerations of the interests of work and the proper operation of public services, and to enable the executive authority to discharge the duties of its office in accordance with the discretionary assessments of expediency that should be left to it, in keeping with the principle of separation of powers, determine such bonuses and incentives as they deem appropriate to reward employees in appreciation of their efforts throughout their service. That being so, the Supreme Judicial Council issued its Decision No. 32 of 2013, providing for the benefit of the comprehensive salary for members of the judiciary and their retention of the benefits of office in the manner previously explained, with the aim of providing members of the judiciary with the means of a dignified life and securing those means at its most critical stage, upon reaching retirement age. This is reinforced by what appears in the explanatory memorandum to the Law on the Organization of the Judiciary: (The more complete the system under which the judge works, the more the means are made available to him to perform his mission to the fullest extent). There is no doubt that what the Supreme Judicial Council intended by issuing that decision was—first and foremost—to instill reassurance in members of the judicial authority upon reaching retirement age, so that they may live in conditions that are secure and reassuring materially and morally or in terms of dignity, befitting the history of the members of that authority in the sanctuary of justice and consolidating the concept of the State governed by law enjoyed by the State of Kuwait. In this respect, it is like the Council of Ministers and the National Assembly when they decide a matter relating to their members and employees. The administrative authority was therefore required, in consolidation of the principle of cooperation between the authorities, to implement the 2 aforementioned decisions by providing the legally required financial appropriations to achieve the noble purposes of their adoption, taking into account that, although the financial linkage of the judicial authority to the Ministry of Justice is an existing reality, that does not deprive this authority of issuing decisions aimed at achieving the public interest whose implementation requires arranging financial appropriations that the Ministry must work to include in its budget and proceed with the procedures for putting them into effect—particularly since the papers contain nothing indicating that the administrative authority has worked toward that end—so that the judicial authority may perform its lofty mission in the manner intended by the Constitution and the law. Consequently, the 2 challenged decisions refusing to proceed with the procedures for implementing the 2 aforementioned decisions issued by the Supreme Judicial Council are tainted by contravention of the Constitution and the law, requiring a judgment annulling them, together with the consequences arising therefrom, most particularly proceeding with the procedures for implementing Supreme Judicial Council Decisions No. 2 of 2011 and No. 32 of 2013 by including the necessary financial appropriations in the Ministry of Justice’s draft budget.