Kuwait Court of Cassation principle number 449

Summary: - The judicial authority, like the executive and legislative authorities, exercises part of the powers of the State, whose source is the Nation. Its implication: the judgments it issues are conclusive of disputes and an expression of the truth once they acquire the force of res judicata. Its effect. The State authorities are obliged to 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, including appointment, promotion, transfer and secondment to any work other than the original work assigned to each of them. No other body may obstruct that competence or diminish it. Its effect. The Civil Service Council has no authority over the decisions of the Supreme Judicial Council. The reason and basis thereof. - Secondment of judges and members of the Public Prosecution. The Supreme Judicial Council’s empowerment to determine the rules of secondment and calculation of the remuneration prescribed for them, with a minimum but without setting a maximum. Referral to the administrative authority competent to determine the amount of remuneration and binding it to controls for that assessment. Its implication. It may not assess it at a rate below the legally prescribed minimum. Contravention thereof. Its effect. The judiciary has authority to review administrative authorities by reconsidering the assessment in a manner preserving the dignity and standing of the member of the judiciary. The reason and basis thereof. - The general provisions contained in the Civil Service Decree apply only to matters for which no provision was made in the Judicial Organization Law, the laws connected with it and the decisions of the Supreme Judicial Council. The reason thereof. The Civil Service Council has no authority over decisions issued by the Supreme Judicial Council concerning the affairs of judges and members of the Public Prosecution. - The Supreme Judicial Council’s decision that the secondment allowance payable to a member of the judiciary or the Public Prosecution shall not be less than 30%, without prejudice, of the salary. The Council may extend its review to what the receiving body decides concerning assessment of the secondment allowance. An example concerning the secondment allowance payable to a counsellor at the Court of Appeal in return for his secondment to both the Arbitration Panel and the Technical Office of the Court of Appeal. Rule: It is settled in the jurisprudence of this Court that the judicial authority, like the legislative and executive authorities, possesses authority and exercises part of the competences and powers of the State, whose source is the Nation. The judgments it issues conclusively determining disputes are regarded as an expression of the truth once they become final and conclusive, and the State authorities are obliged to 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 members of the judicial authority. The legislature has empowered the Supreme Judicial Council to issue these decisions in implementation of the principle of separation of powers, in respect for judicial independence and in compliance with the provisions of the Constitution, which guaranteed the judicial authority impartiality and independence and devoted a special chapter to it (Chapter 5) of Part 4. Accordingly, in the Judicial Organization Law promulgated by Decree-Law No. 23 of 1990, the legislature was careful to support the competences of the Supreme Judicial Council so as to ensure its exercise thereof, as explained in the explanatory memorandum to that Law, which states that (since the Supreme Judicial Council is the foundation of judicial independence and the manifestation and guarantee of that independence, the legislature was careful to support its competences and enable it to exercise them. Whereas its opinion had been advisory in all matters concerning the judiciary and the prosecution pursuant to Decree No. 19 of 1959 concerning the Judicial Organization Law, repealed by Article 4 of the promulgating articles of the Judicial Organization Law currently in force, under which the legislature required its approval in many matters and also empowered it to issue decisions in certain cases. Article (17) thereof provides that: “The Supreme Judicial Council shall be competent to consider, at the request of the Minister of Justice, everything relating to the appointment, promotion, transfer and secondment of judges and members of the Public Prosecution to work other than their original work, in the manner specified in this Law. The Council may express its opinion on matters relating to the judiciary and the Public Prosecution and may propose what it deems appropriate concerning them on its own initiative or at the request of the Minister of Justice.” Accordingly, the legislature has vested in the Supreme Judicial Council alone—in order to guarantee the judiciary’s independence in performing its sacred mission of applying the Constitution and the law, upholding legality and preserving the foundations of the law-governed State—the power to organize the affairs of members of the judicial authority and members of the Public Prosecution in everything relating to their employment affairs, including appointment, promotion, transfer and secondment to any work other than the original work each is assigned to perform. No other body may therefore obstruct this competence or diminish it. This is neither altered nor contradicted by the arrangements made in Article 19 of the aforementioned Decree-Law No. 15 of 1979, empowering the Civil Service Council to establish rules, provisions and conditions for granting compensation for additional work performed by an employee outside official working hours, financial rewards for excellent services, other allowances required by the nature of the duties of the post, and other financial, material and moral benefits. Its provisions apply, pursuant to Article (3) of the same Decree-Law, to employees of government bodies. As for bodies whose service affairs are regulated by special laws, such as the Judicial Organization Law, its provisions apply to 2 categories, namely judges and members of the Public Prosecution. Accordingly, that Law governs the affairs of members of the judicial authority, alongside the laws connected with it that regulate certain aspects of their employment status, including Decree-Law No. 14 of 1977 concerning the Grades and Salaries of Judges and Members of the Public Prosecution, in addition to the decisions of the Supreme Judicial Council concerning the administration and organization of the affairs of justice, whether within or outside the judicial authority, as decisions binding upon their addressees. As such, they constitute the legal framework governing all affairs of members of the judicial authority. The implication and necessary consequence thereof is that the general provisions contained in the Civil Service Decree apply only to matters for which no provision was made in the Judicial Organization Law, the laws connected with it and the decisions of the Supreme Judicial Council. Since the legislature stipulated in Article (3) of the aforementioned Decree-Law No. 15 of 1979 that its provisions do not apply to military personnel of the army, police and National Guard, as representing bodies belonging to the executive authority, it does not apply—a fortiori—to members of the judiciary and members of the Public Prosecution, as members of the judicial authority, one of the State’s 3 authorities. Accordingly, the Civil Service Council has no authority over decisions issued by the Supreme Judicial Council concerning any matter relating to judges, since the latter alone, to the exclusion of all others, controls the affairs concerning members of the judiciary and members of the Public Prosecution. Nor may it review those decisions, since all of that constitutes an encroachment upon the judicial authority, interference in its affairs and a diminution of the powers of the Supreme Judicial Council derived from the Constitution and the law. Whereas Article (25) of the Judicial Organization Law provides that: “A judge may be seconded to perform judicial or legal work other than, or in addition to, his work.......” In implementation of these provisions, the Supreme Judicial Council issued Decision No. (15) of 2012 dated 11/4/2012 and No. 18 of 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 of 2012 dated 27/9/2012, containing in item (15) thereof, First, under the heading Remuneration and Allowances Payable for Secondment, the provision that: “A member of the judiciary or member of the Public Prosecution shall be entitled to remuneration or an allowance 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 perform the additional work pursuant to a secondment decision issued by the competent authority, or to a provision of law where 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, and also during official holidays and authorized leave for which he is entitled to a salary under the Civil Service System, provided that the leave is not continuous with the date of termination of his service. (c) The remuneration or allowance prescribed for additional work shall be included in the cash allowance for periodic leave for the categories stipulated in item Second of Supreme Judicial Council Decision No. 12/2009. (d) The body to which the member of the judiciary or member of the Public Prosecution is seconded shall assess the amount of remuneration or allowance payable for the additional work on the basis of the burdens required by that work and the holding of hearings to determine disputes or the issuance of judicial or non-contentious orders that it entails, taking account of equal treatment of similar additional work. The remuneration or allowance shall be paid within the minimum and maximum limits determined by that body, taking account of the requirement that the allowance shall not be less than 30% of the secondee’s basic salary ....” This indicates that the legislature vested the Supreme Judicial Council with competence to consider all matters concerning members of the judiciary and members of the Public Prosecution, including appointment, promotion, transfer and secondment, as the body controlling judicial affairs. The law permitted the Council to authorize a judge’s secondment to perform additional work alongside his original work, consisting of judicial or legal work. To preserve the prestige of the judiciary and members of the Public Prosecution and ensure the proper performance of their mission in a manner befitting them, the Supreme Judicial Council regulated the prescribed rules of secondment and the rules for calculating the remuneration that must be prescribed for a seconded judge or prosecution member. In this regard, although it referred determination of the amount of remuneration or secondment allowance to the competent administrative authority, it required that authority to apply rules governing this assessment, including: (1) the burdens required by the work and the holding of hearings to determine disputes or issuance of non-contentious or judicial orders that it entails; (b) applying the rules of equality and assessing compensation for similar additional work, with payment to be made within its minimum and maximum limits; (c) in all cases, the allowance paid to the member of the judiciary or prosecution member must not be less than 30% of his basic salary in return for the additional work he was seconded to perform. Accordingly, in all cases the amount of remuneration granted for additional work must not be than 30% of the basic salary, and the Supreme Judicial Council did not set a maximum for it. If the body charged with paying this allowance or remuneration complies with those controls and pays the remuneration below its minimum, or assesses it in a manner disproportionate to the additional effort expended by the judge or prosecution member, the judiciary, in exercising its review of the lawfulness of its conduct, based upon the original jurisdiction vested in it by the legislature in Article (50) of the Judicial Organization Law, may assess the amount of this remuneration or allowance in light of the aforementioned controls, until the Supreme Judicial Council takes the initiative to reorganize the secondment of judges and members of the Public Prosecution comprehensively in all its aspects, particularly by determining secondment compensation or remuneration in each secondment decision and in accordance with objective rules taking into account the grade of the judge or member of the Public Prosecution, the nature of the work in the bodies to which he is seconded or in which he is assigned judicial duties, and the effort expended in the work assigned to him alongside his original work, without leaving assessment of that compensation and remuneration to those bodies, so as to ensure its direct application by the bodies to which they are seconded and preserve the dignity and standing of the member of the judiciary and member of the Public Prosecution, since the work he performs in those bodies is an extension of his judicial work, and in a manner establishing a balance between the judiciary’s participation with those bodies in carrying out their burdens and responsibilities and ensuring the fulfilment of its sacred mission without impairing its prestige and independence. That being so, it is established that the applicant holds the post of counsellor at the Court of Appeal and, following the approval of the Supreme Judicial Council, was seconded to serve as a member of the Arbitration Panel at the Ministry of Justice from 13/10/2011 until the date of judgment, and performed the work to which he was seconded. The allowance assessed by the administrative authority for this secondment was pursuant to the letter of the President of the Civil Service Bureau No. M Kh M/613/14/1996 dated 17/9/1996, which the respondent administrative authority continues to apply to date. Alongside paragraph (1) thereof, it stated that the amount of remuneration granted to the chairman of the Arbitration Panel is (500 dinars) and to a member of the Arbitration Panel (400 dinars) for each case in which a final judgment is rendered, meaning that he must have participated in the case at all its stages until issuance of a final judgment. If he participated in only some of its scheduled hearings, he is granted compensation from the remuneration amount equivalent to his participation, pursuant to the second paragraph of the same letter. However, the Supreme Judicial Council, in its Decision No. 15/2012, as amended by Decisions Nos. 18 and 25 of 2012, determined the minimum below which the remuneration prescribed for a judge or member of the Public Prosecution must not fall, although it left it without a specified maximum. Since the respondent authority did not assess fair remuneration for the applicant for the effort he expended and the additional work he performed during his secondment to the Arbitration Panel in accordance with the aforementioned Supreme Judicial Council decisions, the Court considers it appropriate for the judiciary to exercise its jurisdiction, with its power to review the administration’s conduct and return it to the correct course. Accordingly, the Court considers that its amount should be fixed at 50% of the applicant’s basic salary monthly, with reconsideration by the Supreme Judicial Council of the rules established by the Civil Service Bureau concerning remuneration granted to the chairman and members of the Arbitration Panel, in accordance with the Court’s foregoing conclusion concerning the Civil Service Council. It is also established that the applicant was seconded to membership of the Technical Office at the Court of Appeal following the Supreme Judicial Council’s approval at its meeting No. 11/2013, with effect from 8/4/2013, in addition to his original work. The remuneration that the administrative authority decided to pay him monthly at the rate of KWD 300, based on the letter of the President of the Civil Service Bureau No. 1421332 dated 9/4/2014, was, in addition to being contrary to the governing rules laid down by the Supreme Judicial Council with which the respondent administrative authority must comply, disproportionate to the effort the applicant expended in this additional work. Accordingly, the Court assesses the remuneration to be granted to the applicant for performing the duties he was seconded to perform at the Technical Office of the Court of Appeal at ........ of the applicant’s basic salary, after taking guidance from similar and comparable work.