Kuwait

The State of Kuwait has chosen a unified judicial system. However, it has designated an administrative chamber within the Court of First Instance and granted it jurisdiction to adjudicate administrative disputes exclusively, to the exclusion of other chambers of the court, whether specialized in other types of cases or otherwise. Accordingly, Decree-Law No. 20 of 1981 establishing a chamber within the Court of First Instance to hear administrative disputes, as amended by Law No. 61 of 1982, provides in Article (1) that: “An administrative chamber shall be established within the Court of First Instance, vested with jurisdiction to hear administrative disputes relating to annulment and compensation.”

The principle of two-tier litigation in administrative disputes has been adopted, together with the existence of a Court of Cassation at the apex of the judicial hierarchy, whose function is to work effectively toward establishing legal principles and unifying their interpretation and application.

The Court of Cassation is composed of a president, a vice-president, and a sufficient number of deputy judges and counselors. It includes chambers competent to consider cassation appeals in civil, commercial, personal status, criminal, and administrative matters. Each chamber is presided over by the president of the court, his deputy, the most senior deputy judge, or the most senior counselor, and judgments are rendered by five counselors.

If one of the chambers of the Court of Cassation considers departing from a legal principle laid down in previous judgments issued by it or by any of the other chambers, it shall refer the case to a panel composed of eleven counselors of the court, selected by the president of the court and presided over by him or by his delegate, and the judgments shall be issued by majority vote.

The seat of the Court of Cassation is in Kuwait City, and its chambers may convene in any other place pursuant to a decision by the Minister of Justice upon the request of the president of the court.

The three administrative chambers of the Court of Cassation have succeeded in establishing firm legal principles upon which the Kuwaiti administrative judiciary has relied, particularly in the field of public employment. They have expanded their jurisdiction to extend to many disputes not expressly provided for by the legislator, but connected to the disputes stipulated, especially in matters of salaries, pensions, appointments, bonuses, mandatory leave, promotion, transfer, secondment, and performance appraisal reports.

The rules of administrative litigation have occupied a distinguished position in the jurisprudence of the administrative chambers of the Court of Cassation. They have adhered to the principle of litigation in two tiers and to the inadmissibility of amending judgments except within the limits of the appeal, commitment to the principle of adversarial proceedings and guaranteeing the right of defense to litigants, with observance of the requirement to state reasons for judgments, as well as the principle of stability of judgments. Thus, no departure is made from an established legal principle except after referral to the chamber competent for the unification of principles at the Court of Cassation. They also ensure respect for statutory deadlines relating to filing appeals before them, compliance with legally prescribed time limits, and guarantee of the principles of equality and equal opportunity among litigants.

The administrative chambers of the Court of Cassation have delineated the contours of their judicial review of defects affecting administrative decisions within their jurisdiction, identifying such defects as lack of competence, defects of form, violation of laws and regulations and error in their interpretation or application, or abuse of power. They promptly shaped the features of judicial review over such decisions and adopted numerous judicial doctrines designed to preserve the principle of legality with great care and precision.

The features of the jurisprudence of the administrative chambers of the Court of Cassation with respect to compensation for administrative decisions have also clearly emerged in their recognition of compensation for unlawful administrative decisions, with such compensation required to make good all material and moral damages suffered by the injured party.

The jurisprudence of the administrative chambers of the Court of Cassation has further laid down many rules governing administrative contracts, from the moment of their announcement, through their award to the contractor, and ending with their execution, while maintaining the rights of the contracting party with the administrative authority as well as the subcontractor, without neglecting the rules of public interest which the administrative authority seeks to achieve when concluding the administrative contract.

The judges of the administrative chambers of the Kuwaiti Court of Cassation have addressed the disputes arising from the health crisis caused by the spread of the novel coronavirus (COVID-19), ruling on the extension of appeal deadlines as a result of the interruption of work in all state departments and on alleviating the burdens and damages suffered by those affected by this pandemic.

The clear role of the administrative chambers of the Kuwaiti Court of Cassation — the judges of the supreme court — has thus appeared in achieving judicial security, after litigants gained firm confidence in their judicial decisions and in their jurisprudential efforts in creating rules and customs that frame the judicial process, as well as in unifying procedures and judicial practice in the same legal issue, so that courts of the merits in both tiers subsequently apply them. This ensures the effectiveness of judicial interpretation and its impact within courts of all degrees, brings reassurance to litigants, and creates confidence in the functioning of the justice system.

In conclusion, the administrative chambers of the Court of Cassation in Kuwait have entrenched a vital role in judicial activity, contributing to preserving the balance between the rights of individuals and the powers of the administrative authority, thereby strengthening the principle of the rule of law in the country.