Kuwait Court of Cassation principle number 453

Summary: - The appointment, promotion and seniority of judges. Decree-Law 23 of 1990 devoted detailed regulation thereto in Articles 19, 20, 21 and 22. - Appointment to the office of Deputy President of the Court of Cassation, Deputy President of the Court of Appeal, or Vice-President of the Court of First Instance. Its condition: the appointee must be a member of the judiciary whose service is not less than twenty-five consecutive years, including ten years at the grade of counsellor or an equivalent grade, without prejudice to the order of seniority specific to each upon appointment to the judiciary. - The method of determining the seniority of members of the judiciary and the Public Prosecution. Article 22 of Decree-Law 23 of 1990 concerning the Organization of the Judiciary prescribed it by taking the decree appointing them as the basis for determining their seniority relative to one another, and treating their order within a single decree as the basis for determining seniority. The reason: to remove any uncertainty or ambiguity surrounding it, prevent future interference with their legal positions, secure stability and reassurance for them while performing their mission, and prevent disputes concerning that seniority from arising. - Members of the judiciary whose service included a period of service outside the judicial cadre. Only actual service in the judiciary or the prosecution, and no other service, is counted in calculating their service. Issuance of the appointment decision with due regard to this produces its legal effect in determining seniority from the date of appointment when calculating this special seniority, if the decree includes it. - The appellant's request that his previous service in the Public Prosecution and the judiciary before his appointment to a position outside the judiciary be considered continuous with the period following his reappointment to the judiciary, and the establishment that he had previously been promoted to first-grade judge, with his service in the prosecution and the judiciary before the date of submitting his resignation counted for that purpose, and that successive decrees promoting him to higher judicial grades confirmed the counting of that period. Its effect: that period is considered continuous with the period subsequent to his appointment as a second-grade judge, together with the resulting financial rights, including the end-of-service gratuity and others. Rule: The Law on the Organization of the Judiciary promulgated by Decree-Law No. 23 of 1990 devoted Chapter One of Part Three thereof to detailed regulation, in Articles 19, 20, 21 and 22, of the appointment and promotion of judges and their seniority relative to one another. After specifying in Article (19) the general conditions required of those assuming judicial offices, it set out in Article (20) the conditions required for appointment to the offices of President of the Court of Cassation, Vice-President of the Court of Cassation, President of the Court of Appeal and President of the Court of First Instance, as regards the period of engagement in judicial work and the employment grade, which must not be lower than counsellor or its equivalent. It required anyone appointed Deputy President of the Court of Cassation, Deputy President of the Court of Appeal or Vice-President of the Court of First Instance to be a member of the judiciary whose service is not less than twenty-five consecutive years, including ten years at the grade of counsellor or an equivalent grade, without prejudice to the order of seniority specific to each upon appointment to the judiciary. In Article (21) of the same Decree-Law, it established a basis for promoting judges up to the first grade and those of equivalent status, namely that promotion shall follow the rule of seniority with eligibility; otherwise, promotion to other offices shall be by selection. It prohibited promotion except to the grade immediately following the grade occupied by the judge, if its conditions are met. In Article 22 of the same Decree-Law, the legislature clearly explained how to determine the seniority of members of the judiciary and the Public Prosecution relative to one another, taking the date of the decree appointing them to their offices as the basis for determining seniority among them, and treating the order of appointment within the same single decree as the basis for determining seniority. This is to remove any uncertainty or ambiguity that might surround it, prevent future interference with their legal positions, secure stability and reassurance for them while performing their aforementioned mission, and prevent any disputes that might arise concerning these seniorities and their important effects, whether relating to their employment affairs in facilitating the judicial service or their financial rights, in a manner ensuring that everyone respects them. This is precisely what the Supreme Judicial Council affirmed in its decision issued at the session of 19/9/2000, stating that (as regards members of the judiciary whose service included a period of service outside the judicial cadre, if special seniority was determined for him upon his appointment to the judiciary, his treatment shall be the same as that of his colleagues in that grade, and only actual service in the judiciary or the prosecution shall be counted in calculating the period of service. Accordingly, when calculating the special seniority of a member of the judiciary upon appointment, if his service included a period outside the judicial cadre, the criterion for treating him in the same manner as his colleagues in the grade to which he will be appointed is the actual service spent in the judiciary or the prosecution, and no other service. If the appointment decision is issued with due regard to those criteria, it produces its legal effect in determining his seniority from the date of his appointment when calculating this special seniority, if the decree includes it. That being so, and it being established that the applicant was appointed under Minister of Justice Decision No. 90 of 1981 to the office of Prosecutor (C), and progressed through judicial offices until he was appointed a second-grade judge at the Court of First Instance, and on 18/5/1989 Minister of Justice Decision No. 37/1989 was issued accepting his resignation with effect from the end of 17/5/1989, after a decision had been issued appointing him Deputy Director of the Legal Department at Kuwait Finance House on 2/5/1989, where he held that office until 13/4/1990, until Decree No. (52) was issued on 14/4/1990 appointing him a second-grade judge at the Court of First Instance, and he was then appointed a first-grade judge by Decree No. 113 of 1991, issued on 1/10/1991, and then progressed through the lowest judicial offices until he was appointed a counsellor at the Court of Appeal by Decree No. 227 issued on 2/11/1997, and then Deputy President of the Court of Appeal with effect from 11/11/2007 by Decree No. 6 of 2008; and Article 20 of the Law on the Organization of the Judiciary required, for appointment to the offices of Deputy Presidents of the Court of Cassation, Deputy Presidents of the Court of Appeal and Vice-President of the Court of First Instance, members of the judiciary whose service was not less than twenty-five consecutive years, including at least ten years at the grade of counsellor or an equivalent grade; the applicant had acquired a legal position through his appointment as a second-grade judge under Decree No. 52 dated 14/4/1990 and his subsequent promotion to first-grade judge, up to Deputy President of the Court of Appeal and then Deputy President of the Court of Cassation, as previously stated. Decrees determined his seniority among his colleagues conclusively and finally, making interference with it impermissible. He therefore has no entitlement to his principal request and to counting the period he spent at Kuwait Finance House from 18/5/1989 to 13/4/1990, because it was spent outside judicial work. As for his alternative request that his previous service in the prosecution and judiciary from 14/11/1981 to 17/5/1989 be considered continuous with his judicial service subsequent to his appointment as a second-grade judge from 14/4/1990 to the present—given that the administrative authority disputes with him the resulting financial effects, notwithstanding that the decrees appointing him to higher judicial offices, up to the office he currently occupies, Deputy President of the Court of Cassation, counted his service in the prosecution and judiciary before submitting his resignation—this alternative request is well founded. It is established that, when the applicant was promoted to first-grade judge by Decree 113 of 1991 with effect from 1/10/1991, he was not required to have completed the period applicable for remaining in the office of second-grade judge, since his service in the prosecution and judiciary before the date of submitting his resignation was counted. The decrees promoting him to higher judicial offices confirmed the counting of that period, as previously stated. Their effects therefore include treating that period as continuous with the period subsequent to his appointment as a second-grade judge with effect from 14/4/1990, in respect of financial rights, including end-of-service gratuities and others.