Kuwait Court of Cassation principle number 533

Summary: - The Central Bank: the legislature took care to grant it a degree of independence and flexibility ensuring its performance of its functions and discharge of its assigned tasks, in view of the nature of its work. This includes empowering its Board of Directors to establish all regulations and provisions concerning the Bank’s administrative and financial affairs, including personnel and accounting matters, without being bound in that respect by the provisions of the laws on public tenders and public civil service positions. Pursuant thereto, the Board of Directors, with the approval of the Minister of Finance, established a staff system specifying how their job performance is to be measured, differing from other performance-efficiency measurement systems at other government bodies, and specified mandatory controls in that regard and deemed performance-efficiency reports final once approved by the Governor. - A decision assessing an employee’s efficiency is like any administrative decision. It must be based on its legally prescribed cause. - Determining the score an employee deserves for each element contained in the report is a matter within the competence of the immediate superior and the higher superior, each within the limits of his competence. The judiciary exercises no supervision over them in that respect, and their assessments cannot be reviewed unless proven to be tainted by improper purpose or abuse of power. The reason therefor. This concerns the core competence of the administration, in which the judiciary may not substitute itself for it. Rule: In consideration of the nature of the Central Bank’s work, the legislature took care to grant it a degree of independence and flexibility ensuring its performance of its functions and discharge of its assigned tasks. Under Article (14) of Law No. 32 of 1968 concerning Currency, the Central Bank of Kuwait and the Organisation of the Banking Profession, it empowered the Bank’s Board of Directors, following approval by the Minister of Finance, to establish all regulations and provisions concerning the Bank’s administrative and financial affairs, including personnel and accounting matters, without being bound in that respect by the provisions of the laws on public tenders and public civil service positions. Pursuant thereto, the Bank’s Board of Directors, with the approval of the Minister of Finance, established a staff system specifying how the efficiency of their job performance is to be measured, in a manner differing from other performance-efficiency measurement systems for employees of other government bodies, taking into account the nature of the Bank’s activities and objectives and the types of positions and tasks it undertakes. Accordingly, the Bank’s staff system specified mandatory controls whereby the performance efficiency of holders of the various positions is measured by 1 or more reports per year, prepared in accordance with the forms, rules and procedures proposed by the Personnel Affairs Committee and approved by the Governor, and whereby the results of performance-efficiency reports are considered final once approved by the Governor. That being so, and as the settled case law of this Court is that a decision assessing an employee’s efficiency, like any administrative decision, must be based on its legally prescribed cause, this can only be achieved where that cause rests on established elements reasonably inferred from the records, service-file information and work related to the evaluation year. The Court’s case law has also established that determining the score an employee deserves for each element contained in the report is a matter within the competence of the immediate superior and the higher superior, each within the limits of his competence. The judiciary exercises no supervision over them in that respect, and their assessments cannot be reviewed unless proven to be tainted by improper purpose or abuse of power, since this concerns the core competence of the administration, in which the judiciary may not substitute itself for it.