Termination of Kuwaiti employees' service: Between regulatory and contractual centers

The Ministry of Education, in a letter dated October 2026, signed by the Assistant Undersecretary for Educational Affairs, requested the opinion of the Fatwa and Legislation Department regarding the permissibility of terminating the service (dismissal) of Kuwaiti employees, similar to the treatment of expatriate employees, and attached a memorandum regarding this request (unpublished).

1. First and foremost, we inform you that the matter of contracting with citizens for employment within the Ministry should have been submitted to the Council of Ministers for examination within the legislative framework and legal form, and to assess its compliance with the Constitution, the Civil Service Law, administrative jurisprudence, and administrative court rulings. This is because the rules governing a public employee regarding the termination of their service are identical in terms of legal effects, except where specific regulations provide otherwise, such as for employees of the judiciary, public prosecution, Fatwa and Legislation, diplomatic corps, and others.

2. The legal nature of the relationship between the employee and the administration. Several theories have emerged to clarify the nature of the relationship between the employee and the administration, the most prominent being the contractual theory, which was prevalent in the 19th century but has been abandoned by administrative jurisprudence for a long time, and the organizational theory. It can be stated that the relationship linking the employee to the State or the administration, according to the prevailing opinion and established jurisprudence, case law, and legislation, is an organizational relationship governed by laws and regulations. Thus, the employee holds an organizational and regulatory status, not a contractual one. This is the position taken by the Court of Cassation, which held that "the relationship between the employee and the government is an organizational relationship governed by the laws and regulations issued concerning it, which place the employee in a general legal status whose organization is primarily subject to the provisions imposed by those laws and regulations" (Cassation Appeal No. 517 of 1997, Commercial Administrative Session, 4/5/1998; see also Dr. Turki Al-Mutairi, Principles of Administrative Law, 2009).

3. After appointment to a position, a public employee is subject to pre-established legal rules formulated by the competent authority. The employee has no right to refuse the application of these rules or to amend them; rather, they are obliged to comply with these rules as long as they hold the public office. However, the administration's authority is subject to certain restrictions, the most important of which are that any amendment must be made through general and abstract rules, must not infringe upon the employee's rights and benefits, and must be implemented in a manner consistent with the principle of legality. (Cassation Appeal No. 517 of 1997, cited above).

4. If the appointment of non-Kuwaitis is only possible through contracting, and the contracts under which they are appointed to public positions are pre-formulated by administrative authorities, the provisions of the Civil Service Law and system apply to them, except where specific provisions are stipulated in the contracts concluded with them, in accordance with Article 15 of the Civil Service Law.

5. We note in this regard that the Civil Service Law and the Civil Service System have established a comprehensive system regarding the rights, benefits, and duties of employees, as well as disciplinary procedures, investigations, and termination of service. This is based on the principle that public office is generally permanent, not temporary. This differs from the case of a contracted employee, such as an expatriate, as each category has a specific system for terminating their service due to their initial method of appointment. Furthermore, the general principle is that public positions are reserved for citizens.

6. Previously, the Central Tenders Committee requested an opinion on the possibility of utilizing the expertise of retired Kuwaiti nationals. The Fatwa and Legislation Department issued its opinion on this matter, stating that the Tenders Authority may utilize the expertise of retirees, after referring the matter to the Civil Service Council. Its opinion was based on Articles 41 and 155 of the Constitution, and Articles 5 and 11 of Decree-Law No. 15 of 1997 concerning Civil Service.

(Fatwa No. 202200004757) Accordingly, it is permissible to utilize the services and expertise of retired Kuwaiti civil servants through contracts after their retirement, but not before that, i.e., not for initial appointment.

7. In conclusion, the Ministry of Education’s policy of terminating the service of Kuwaiti employees or dismissing them, as stated in the Ministry’s letter, mirroring the treatment of expatriate employees, undermines and uproots the theory and system of the Civil Service Law. This renders the future of Kuwaiti public employees vulnerable to termination of their careers and livelihood for any reason deemed acceptable by management, thereby disrupting the regularity and consistency of the public service system. The concept of “dismissal” referenced in the Ministry’s letter constitutes a subsidiary penalty for a crime or a disciplinary sanction. The Ministry should exercise caution on this matter and reconsider it in coordination with the Civil Service Council, as the authority overseeing public service affairs, and the Civil Service Diwan, as the executor of the Council’s policies, before submitting the proposal to the Fatwa and Legislation Department. The proposal should include an analysis of its advantages and disadvantages, the potential consequences of its implementation, and its compatibility with the Constitution, the law, and legal jurisprudence. Thereafter, it should be presented to the Council of Ministers for an appropriate decision on the matter.

Ph.D. in Law, University of Edinburgh