10
ALRAQABA . ISSUE 15
Part one: The definition and traits of
adverse administrative decision:
There are numerous definitions for the term
“adverse administrative decision.” Judges and
legitimists were not able to agree on a unified
way to describe the said term. According to
legitimists, this disagreement is not attributed to
the phraseology itself .
Regardless of the subject matter, this
disagreement can be broken down into three
main definitions:
• The first definition:
when an administration
refrains or refuses to carry out a duty
that is set forth by the applied laws and
regulations. This definition is widely used
by legitimists and highly adopted by the
administrative jurisdiction in Kuwait .
• The second definition
: it is perceived as
“the administration’s refusal or refrainment
from taking a legally binding action or its
abstention from responding to the grievance
presented within the specified and legally
set deadline.” It is evident that this
statement stipulates that the administration
refrains from conducting a duty that is
required by the laws and regulations of
adverse administrative decisions. This
statement has many in common with the first
definition. Yet, both narratives are different.
In this definition, refraining from responding
to grievance based on a law-governed
deadline makes these descriptions
different. “It can be noted that this definition
has merged the concept of the Adverse
Administrative Decision resulting from an
administration’s refrain to respond when
obliged by the legislator to take a decision,
with the implicit decision resulting from the
administration’s refrain from responding
when presented by a grievance.”
• The third definition
: it is considered as “
an expression of an adverse stance by
the administration. It is not responding to
the citizen’s demand nor display approval
towards it.” In this definition, it is noticed
that it is the most general among the three
other definitions. The adverse stance
resulting from a law or a bylaw enforcing
the administration to either take a specific
course of action or leave it for its discretion.
It is also considered a prevailing term. As
the second definition, it is the refrain of
an administrative body from conducting
a legally binding duty and abstaining
from responding to grievance during the
deadline specified by the law and any
request received by citizens.
The statements discussed earlier demonstrate
the definitions and controversy revolved around
them. In this research, we shall adopt the first
definition for the following reasons:
- The majority of legitimists highly recognize it,
and it is embraced by judges.
- The second and the third definition mixed the
concepts of Adverse Administrative Decision
with the Implicit Administrative Decision, as we
shall discuss later.
This definition is the one adopted by the
legislator. It stated that “…It is considered an
administrative decision when the administrative
bodies refuse or refrain from taking a decision
as per the laws and regulations.”
Based on what is discussed earlier, to establish
one, it is clear that an adverse decision
stipulates the following conditions:
• First condition:
having a provision
compelling the issuance of a specific
administrative decision:
This means having a law that stipulates that
Legislations
