Kuwait Court of Cassation principle number 485

Summary: - Appointment to judicial positions. The administration has latitude therein pursuant to its discretionary authority to select those who meet the conditions for holding them and discharging the responsibility entrusted therein, without judicial review of its decisions. Its condition. Those decisions being free from the defect of abuse of power. - Judicial review of administrative acts. It is not of the same extent for all administrative acts, and its degrees differ according to the field in which the administration acts and the extent of its freedom of discretion in acting. - Constitutional principles providing for women’s equality with men in rights and duties. The necessity of interpreting them in light of the principles on which the social system rests and taking account of social and environmental considerations or whatever organisation of the arrangements for women’s occupation of certain positions may be required, which may take some time, provided that considerations of 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, 61 of Law 23 of 1990 concerning the Judicial Organisation Law). It includes both sexes, males and females. - The administrative authority competent for judicial affairs. The legislature vested it with discretionary authority to select whom it considers suitable to hold a position in the judiciary and the Public Prosecution according to objective reasons and considerations of public interest. The condition thereof. Its assessment being free from the defect of abuse or misuse of power. - The administrative authority competent for judicial affairs postponing consideration of appointing females to judicial office pursuant to its discretionary authority, to suit the prevailing circumstances, without any suspicion of abuse of power. This protects its decision from annulment. - The provisions of the Constitution and the law. Their containing no express provision requiring the appointment of women to judicial office. Rule: It is established—in the jurisprudence of this Court—that the court of merits has the authority to characterise the litigants’ claims without being bound by their characterisation thereof, provided that it does not depart from the facts of the case, alter the substance of the claims, or introduce new claims not presented to it. What matters in this regard is the true purpose and intent of the claims, not the words in which they are formulated. It is established that appointment to judicial positions is a matter in which the administration has latitude pursuant to its discretionary authority, by selecting those who meet the conditions for holding these positions and discharging the responsibility entrusted therein, without judicial review of its decisions in this regard, provided that they are free from the defect of abuse of power. It is also established that judicial review of administrative acts is not, in fact, of the same extent for all administrative acts; rather, its degrees differ according to the field 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 in the means of acting or assessing, and expands when the law narrows that sphere, so that it becomes bound by provisions laid down therein. Discretionary authority is therefore not absolute but is subject to judicial review, although the extent thereof varies. It is also established that, although constitutional principles provide for women’s equality with men in rights and duties, this equality is interpreted in light of the principles on which the social system rests, and with regard to social or environmental considerations or whatever organisation of the arrangements for women’s occupation of certain positions may be required, which may take some time, provided that the guiding factor in this assessment is the considerations of public interest sought by all State institutions. The Judicial Organisation Law promulgated by Decree-Law No. 23 of 1990 concerning the Judicial Organisation Law required, for a person appointed as a member of the Public Prosecution, the same conditions it required for a person appointed to the judiciary (Articles 19, 61): that the person be a Kuwaiti Muslim, fully legally competent, of good reputation, and holding a degree in law or Sharia. Although the requirement that a member of the Public Prosecution be Kuwaiti apparently refers to males rather than females, the literal and technical meaning of the word Kuwaiti includes both sexes. This means that the legislature vested the administrative authority competent for judicial affairs with discretionary authority to select whom it considers suitable to hold a position in the judiciary and the Public Prosecution, according to objective reasons derived from the circumstances and actual state of affairs and dictated by the requirements and considerations of public interest, provided that its assessment is free from the defect of abuse or misuse of power. That being so, the challenged judgment, which upheld the first-instance judgment, based its ruling on the fact that the legislature, in Judicial Organisation Law No. 23 of 1990, laid down conditions that a member of the Public Prosecution must satisfy, and neither prohibited women from holding judicial office nor permitted it; and that the Constitution of the State of Kuwait, while containing a provision for equality between the sexes in holding public positions, since the legislature vested the administrative authority competent for judicial affairs with discretionary authority to weigh the appropriateness of appointment to judicial office, having regard to social circumstances, traditions, and current conditions; and that, in light thereof, since it considered, in the exercise of its discretionary authority, that consideration of appointing females to judicial office should be postponed to suit the prevailing circumstances, without any suspicion of abuse of power, its decision—in these circumstances—is protected from annulment. This constitutes a reasonable inference by the judgment from the facts of the dispute and the attribution of the correct characterisation to the appellant’s claims within the discretionary authority of the court of merits—and, before it, the first-instance judgment—by discerning the true nature of her claims, which are manifested in a request to annul the conditions contained in the announcement dated 19/8/2009 restricting applications for the position in dispute to males rather than females. It concluded that what the appellant sought was appointment to that position, and consequently the challenged judgment correctly apprehended the facts and correctly applied the law. The foregoing is not undermined by the appellant’s contention that the judgment’s reliance on the provisions of Islamic Sharia was incorrect in the presence of constitutional and statutory provisions governing the matter presented. This is answered 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 provisions of Islamic Sharia in its reasoning was confined solely to reviewing the jurisprudential opinions concerning that matter, reaching the conclusion that the administration enjoys discretionary authority in this regard. Accordingly, the challenge—in its entirety—is without foundation.