Kuwait Court of Cassation principle number 451

Summary: - Appointment to judicial posts. A matter in which the administration exercises discretion pursuant to its discretionary authority to select those meeting the conditions to hold them and faithfully discharge their responsibilities, without judicial review of its decisions. Its condition. That those decisions be free from the defect of abuse of power. - Judicial review of administrative acts. It is not of a single degree for all administrative acts, and its degrees vary according to the sphere in which the administration acts and the extent of its freedom of discretion in acting. - Constitutional principles requiring equality between women and men in rights and duties. They must be interpreted in light of the principles upon which the social order is founded, taking account of social and environmental considerations or of the arrangements that may be required for women to occupy certain posts, which may take some time, provided that considerations of the public interest are the guiding factor. - The literal and technical meaning of the word “Kuwaiti” appearing as a condition for appointment to the judiciary or the Public Prosecution (Articles 19 and 61 of Law 23 of 1990 concerning the Judicial Organization Law). It includes both sexes, males and females. - The administrative authority competent for judicial affairs. The legislature granted it discretionary authority to select whomever it considers appropriate to hold office in the judiciary and the Public Prosecution, in accordance with objective reasons and considerations of the public interest. The condition for this. That its assessment be free from the defect of abuse or misuse of power. - The postponement by the administrative authority competent for judicial affairs of consideration of the appointment of females to judicial office pursuant to its discretionary authority, as appropriate to the prevailing circumstances, without suspicion of abuse of power. It protects its decision from annulment. - The provisions of the Constitution and the law. Their lack of an express provision requiring the appointment of women to judicial office. Rule: It is established—in the jurisprudence of this Court—that the trial court has authority to characterize the parties’ claims without being bound by their characterization thereof, provided that it does not depart from the facts of the action, alter the substance of the claims, or introduce new claims not submitted to it. What matters in this regard is the true intention and purpose of the claims, not the words in which they are formulated. It is established that appointment to judicial posts is a matter in which the administration exercises discretion pursuant to its discretionary authority, by selecting those who meet the conditions to hold those posts and faithfully discharge their responsibilities, without judicial review of its decisions in this regard, so long as they are free from the defect of abuse of power. It is also established that judicial review of administrative acts is not, in truth, of a single degree for all administrative acts; rather, its degrees vary according to the sphere in which the administration acts and the extent of its freedom of discretion in acting. Such review narrows in the sphere of discretionary authority, where the law does not bind the administration by a provision limiting its discretionary authority or restricting its freedom as to the means of action or assessment, and expands when the law narrows that discretion, so that it becomes constrained by provisions laid down therein. Discretionary authority is therefore not absolute, but is subject to judicial review, albeit varying in extent. It is also established that, although constitutional principles require equality between women and men in rights and duties, such equality is interpreted in light of the principles upon which the social order is founded and with regard to social or environmental considerations or the arrangements that may be required for women to occupy certain posts, which may take some time, provided that its guiding factor in that assessment is the considerations of the public interest sought by all State institutions. The Judicial Organization Law promulgated by Decree-Law No. 23 of 1990 concerning the Judicial Organization Law required of a person appointed as a member of the Public Prosecution the same conditions it required of a person appointed to the judiciary (Articles 19 and 61): that he be a Kuwaiti Muslim, possess full legal capacity, be of good repute, and hold a degree in law or Sharia. Although the requirement that a member of the Public Prosecution be Kuwaiti may appear to refer to males rather than females, the literal and technical meaning of the word “Kuwaiti” includes both sexes. This means that the legislature granted the administrative authority competent for judicial affairs discretionary authority to select whomever it considers appropriate to hold office in the judiciary and the Public Prosecution, in accordance with objective reasons derived from the circumstances and the actual state of affairs and dictated by the requirements and considerations of the public interest, so long as its assessment is free from the defect of abuse or misuse of power. That being so, the challenged judgment, which upheld the first-instance ruling, based its ruling on the fact that the legislature, in Judicial Organization Law No. 23 of 1990, laid down conditions that must be met by a member of the Public Prosecution and neither prohibited women from holding judicial office nor authorized it; and that the Constitution of the State of Kuwait, while including a provision for equality between the sexes in holding public posts, since the legislature granted the administrative authority competent for judicial affairs discretionary authority to weigh the appropriateness of appointment to judicial office, taking account of social circumstances, traditions and current conditions. In light of this, where that authority considered, in the exercise of its discretionary authority, that consideration of appointing females to judicial office should be postponed as appropriate to the prevailing circumstances, without suspicion of abuse of power, its decision—in those circumstances—is immune from annulment. This is a reasonable inference by the judgment from the facts of the dispute, and a correct characterization of the appellant’s claims within the trial court’s discretionary authority—and, before it, the first-instance judgment—by ascertaining the true nature of her claims, manifested in the request to annul the conditions appearing in the announcement dated 19/8/2009 restricting applications for the disputed post to males to the exclusion of females. It concluded that what the appellant sought was appointment to that post, and accordingly the challenged judgment correctly applied the facts and the law. The foregoing is not undermined by the appellant’s contention that the judgment improperly relied on the rules of Islamic Sharia in the presence of constitutional and statutory provisions governing the matter presented. This is refuted by the fact that the provisions of the Constitution and the law contain no express provision requiring the appointment of women to judicial office, and that the judgment’s discussion of the rules of Islamic Sharia in its reasons was confined solely to reviewing jurisprudential opinions concerning that matter, concluding that the administration enjoys discretionary authority in this regard. Accordingly, the challenge—in its entirety—is without foundation.