Kuwait Court of Cassation principle number 470

Summary: - Legislative provisions. The general principle is their connection to their objectives. The reason therefor. Any legislative regulation is not intended for its own sake but is merely a means of achieving those objectives. - The legislature’s prescribing specific controls and laying down known foundations for issuing an administrative decision. Its implication: violating them taints the decision with the defect of violating the law. - Appointment to vacant positions. Within the administrative authority’s power. The condition therefor. Compliance with the terms prescribed by law and with the regulatory restrictions by which the administration binds itself. - The provision in the Regulations Governing the Affairs of Teaching and Training Staff at the Saad Al-Abdullah Academy for Security Sciences that the Academy shall determine its needs for teaching and training staff at all levels and advertise these positions in local and Arab newspapers, with local advertising during January and, if the required specializations are not filled, external advertising during March. Its meaning. Advertising is its means of meeting its needs for teaching and training staff, and it has discretionary authority to select from applicants according to the criteria and controls prescribed in these Regulations. - Restricting the advertisement to members of the Ministry’s police force in violation of the Regulations, which require it to be general without restriction. Its implication. A violation of the provisions of the Regulations, a departure from the public interest, and a violation of the principle of equal opportunity, rendering it deserving of annulment. Rule: It is judicially established that the general principle regarding legislative provisions in a State governed by law is their connection to their objectives, considering that any legislative regulation is not intended for its own sake but is merely a means of achieving those objectives. It is established in the jurisprudence of this Court that, where the legislature prescribes specific controls and lays down known foundations for issuing an administrative decision, violating those controls and foundations taints the decision with the defect of violating the law. It is also established that the administrative authority’s power to appoint to vacant positions is conditional upon 2 matters: the restrictions prescribed by law, and the regulatory restrictions by which the administration binds itself. Whereas Article (2/a) of Ministerial Decision No. 24 of 2004 concerning the Regulations Governing the Affairs of Teaching and Training Staff at the Saad Al-Abdullah Academy for Security Sciences, as amended, provides that: “a- The Saad Al-Abdullah Academy for Security Sciences shall determine its needs for teaching and training staff at all levels in light of the volume of work, development plans, and approved budget appropriations, and shall advertise the said positions in local and Arab newspapers, provided that advertising shall be local in January. If the required specializations are not filled, advertising shall take place externally in March.” The implication of this provision is that advertising is the Academy’s means of meeting its needs for teaching and training staff at all levels. Advertising takes place in local newspapers in January, and if the specializations are not filled, advertising takes place externally in March. The guiding aim of advertising is to attract scientific and training competence and expertise from civilians and military personnel to raise the standards of education and training, and to enable the Academy to fulfil the mission entrusted to it pursuant to its establishing decree. The means to that end is for the advertisement to be general without restriction, while its discretionary authority to select from applicants from both categories thereafter remains, in light of the controls and criteria prescribed in those Regulations. The appellant issued Circular No. 39 of 2010 concerning the advertisement for filling teaching staff positions at the Saad Al-Abdullah Academy for Security Sciences and restricted it to members of the Ministry’s police force, in violation of Article (2) of the aforementioned Regulations, which was framed in general terms. The rule is that a general provision is taken in its generality unless restricted. Accordingly, restricting the advertisement to military personnel violated the provisions of the Regulations and departed from the public interest, which is achieved by making the advertisement for filling teaching and training staff positions at the Academy unrestricted, to ensure equal opportunity, thereby rendering it deserving of annulment.