The Discretionary Power of the Kuwaiti Administrative Judiciary, Based on a Decision Issued by the Kuwaiti Administrative Court (No: 546/1017 Administrative 5): A Comparative Study
Prof. Georges Saad
Professor of Public Law – Kuwait International Law School – former Dean and Professor of Public Law – Faculty of Law and Political Science – Lebanese University
Abstract:
This research deals with the issue of discretionary power of the Kuwaiti Administrative judiciary, based on a bold decision issued by the Fifth Administrative Court (546/1017 Administrative / 5), where the Kuwaiti judge revoked the decision of the administration to allocate 40{e574c6cff940d8d5a9ac538779c657d486556f11c838827e06e77ac326839f1b} to the personal interview when selecting candidates for the position of a junior and legal researcher. This commentary clearly aims to shed light on a fundamental issue that raises the question of how to address the abuses of the administrative authority through the work of the judge and his ongoing efforts in the application of the law and the achievement of justice and fairness toward litigants. It is also concluded after the presentation of the proceedings that the Kuwaiti judge presented a seventh control allowing for the annulment of any administrative decision, which the researcher proposes to be called “Maximum Censorship.” This control is characterized by allowing the judge in exceptional cases to override the rules of jurisprudence in force (the six-party) namely: the control of substantive facts, legal facts, manifest error of assessment, the control of adjustment, the censorship of deviations of power and the control of proportionality.
The researcher supported his analysis with ideas of comparative law, especially French law and jurisprudence. The researcher also includes comparisons with French decisions and the presentation of the discretionary power in England and the discussion of some decisions of the constitutional courts. This strengthens the research approach which is based on description, analysis, comparison, criticism and suggestions whenever necessary.
The commentary concludes with a number of results, notably the increasing tendency of the Kuwaiti administrative judiciary to take bold decisions against the administration, which enhance its role in promoting and protecting rights and freedoms. The researcher recommends the implementation of the principle of judicial duplication in Kuwait and promulgation of a law governing the management of official interviews and evaluating them with a grade not exceeding ten per cent for personal interview.
Keywords: Discretionary authority, censorship of the administrative judge, manifest error of assessment, censorship of the work of the administration, deviation of authority.