Admin decisions or budget law cannot affect it: expert
KUWAIT CITY, Aug 30: The recent wave of interpellations against the minister of finance sparked reactions and social conversation regarding the Ministry of Finance’s intention to prejudice the salaries of employees through the so-called economic document, because salaries in Kuwait are subject to multiple legal rules, reports Al-Rai daily. The daily opened the file of salaries and the extent of the possibility of compromising them, and surveyed the opinions of the professors of financial and administrative law at Kuwait University who unanimously agreed that it’s impermissible to prejudice on the basis of administrative decisions.
Rather, a legislative amendment is required while some of the allowances and insurance subsidies are subject to constitutional principles that may not be prejudiced by any means. Chairman of Public Law Department at the Faculty of Law in Kuwait University Dr Ibrahim Al-Hamoud said that “salaries are always attached to laws such as Civil Service Law, while any other employment law that includes a payroll is attached to salaries. In all cases, it has been issued by law or decreed by law; thus the salaries of employees cannot be affected by administrative decisions or through budget law”. The budget law is considered one of the formal laws that may not violate the substantive laws related to salaries in any way.
Amend Al-Hamoud added, “To amend salaries, it requires legislative intervention from the National Assembly, and not as some portrayed it to be right in meddling with administrative decisions. The decisions related to salaries are established with regard to bonuses and allowances, as they are in a legal position, which is a functional rank linked to the salary scale and may not be modified except by law issued by the National Assembly. He indicated “this also applies to the cost of living allowance, road allowance, housing allowance, screen allowance, and other allowances. It is one of the salary items and takes the form of salary. That’s why it’s not permissible to prejudice it except by law”.
He noted the employee is consumed and loses his health because of the job, and a person is not like machines that are evaluated after deducting the percentage of consumption. This type of compensation is through allowances, as if the legislator compensated the employee for consuming his health because of the job that results in retirement pension and calculated on full salary consideration. Consequently, the retirement pension is not considered a favor for anyone. Rather, it is accrued through a monthly deduction during the employee’s employment life and the actuarial account with other retirees based on the principle of social solidarity.
All of this is linked to the Social Insurance Law,which is also impermissible, because any prejudice in the salaries will be affected by the large circle associated with the pensioner’s salary, he said. Commenting on the documents published in tandem with the questioning of the minister of finance, wherein a review of government support for the rate of social insurance was made at a rate of 5 percent, Al-Hamoud said “the state pays 10 percent and also pays 5 percent for public job, and there is an intention to raise the subsidy. This is not permissible and requires legislation to amend it, because social insurance is a type of independent tax, and there are no taxes except by law – according to the constitution.
Therefore, the deduction the employee pays is an insurance, which he does not pay for himself upon retirement, according to the prevailing understanding. Rather, it is an actuarial account for all workers in the state based on the principle of social solidarity. He said, “According to the constitution, the state guarantees social insurance, and accordingly the employed citizen must lead a social life, and if state subsidy estimated at 5 percent is removed from the employee’s insurance, he will face a challenge before the Constitutional Court, because it affects the social insurance guaranteed by the state.”
He explained that “there is no law in Kuwait stipulating the minimum level of living, and the criterion is decent human life. Therefore, salary is not equivalent to work but a form of redistributing the national income, so the employee is not legally entitled to engage in private practice in the evening, because this is considered a job crime that may attract termination with 100 percent chances of state imprisonment.”
For his part, Professor of Administrative Law at Kuwait University Dr Khaled Al-Harbi said, “There is an organizational relationship between the public employee and the administration, meaning the employee is subject to pre-set rules governing his rights and duties. For this reason, the administration can amend the employee’s legal status and amend his rights, including the right to amend salaries if public interest and the need to run public utilities regularly and steadily necessitates that”.
Due to the special nature of some rights, most notably salaries, the administration must adhere to several restrictions when touching this position that it should not affect salaries without going through the legislative path that recognizes the employee’s right to salary at the beginning, Al-Harbi noted. Salaries that were approved by law cannot be affected by means of administrative decisions, and salaries may not be prejudiced retroactively in the application of the rule of “non-retroactivity” and “immediate effect of law”.
On the other hand, equality and non-selectivity must be taken into account when it becomes necessary to infringe the rights of employees, in the application of Article 41 of the Constitution that requires fair work conditions. In affirmation of the sanctity of the salary, the legislator also informs in civil service laws guarantees that administration does not allow the seizure or deduction of the salary except in few cases specified by law. Al-Harbi concluded that “prejudice to salaries is the most dangerous and last solution. The state, according to Article 8 of the Constitution, safeguards the pillars of society and guarantees security and tranquility among its members. Financial security and the protection of Kuwaiti family are among the most important aspects of community security in the state.”