Procedural Legality Controls and Legal Effects of Precautionary Suspension from Work in the Interest of Administrative Investigation: A Comparative Study Between Kuwaiti and Egyptian Law

Abstract

This research comprises three main axes. The first addresses the conceptual framework of the subject by elucidating the concept and characteristics of precautionary suspension from work in the interest of administrative investigation, and by distinguishing it from other similar legal regimes. The second axis defines the requirements for the validity of issuing the administrative decision embodying this measure, namely: that it be issued by a competent authority, that its subject matter be an administrative investigation, and that its purpose be the realization of the interest justifying its issuance.

The third axis examines the effects resulting from the issuance of such a decision, including functional effects—namely, the temporary termination of the employee’s functional authority during the period of suspension and the deferment of his promotion—as well as the financial effect represented in depriving the suspended employee of half of his salary throughout the duration of the suspension.

The research concludes with a presentation of its findings, derived from the legislative and judicial reality governing precautionary suspension from work, followed by recommendations deemed by the researcher to be of significance in ensuring that this measure achieves its intended purpose, while simultaneously safeguarding the rights of the person against whom the decision is issued. Chief among these recommendations is a call upon the Egyptian legislator to follow the example of the Kuwaiti legislator by obligating the authority issuing the precautionary suspension decision in the interest of administrative investigation to provide reasons for its issuance, such that the decision expressly sets forth its justifications.

In addition, the research calls upon both the Egyptian and Kuwaiti legislators to refrain from linking the decision to suspend an employee from work with the prohibition of his promotion and the deduction of half of his salary as effects of that decision, given the absence of a necessary connection between such a decision—being a temporary precautionary measure within the framework of administrative investigation—and the prohibition of promotion for an employee who had already satisfied its conditions prior to being referred for investigation and, consequently, prior to the issuance of the suspension decision, which must not produce retroactive effects.

Moreover, the deduction from the salary of the suspended employee is not a necessary requirement of the interest of administrative investigation, which constitutes the sole legal justification for the suspension decision. Such deduction may also lead to a form of double punishment for the same violation, particularly in cases where the employee’s right to recover the deducted half of his salary is forfeited as a result of dismissal from service or due to the imposition of a disciplinary penalty exceeding the legally prescribed threshold for restitution of the deducted amount.